Industrial Relations Commission of New South Wales in Court Session CITATION: International Sports Marketing Pty Ltd and anor v Oasis Development Corporation Pty Ltd and ors (No 3) [2008] NSWIRComm 132 FIRST APPLICANT International Sports Marketing Pty Ltd SECOND APPLICANT Achilles Constantinidis PARTIES: FIRST RESPONDENT Oasis Development Corporation SECOND RESPONDENT Bulldogs Sport & Community Foundation Limited THIRD RESPONDENT Gary John McIntyre FILE NUMBER(S): 3558 of 2003 CORAM: Marks J CATCHWORDS: Interlocutory application - delayed s106 unfair contract proceedings - failure by applicants to comply with self-executing consent order to file affidavit material in reply - motion to vacate initial orders - burden on applicant to demonstrate reason why further indulgence should be granted - discretion in all relevant circumstances of proceedings - application acceded to on basis that further extension of time agreed to be limited to 14 days - default will result in proceedings under s106 being dismissed with costs - costs reserved LEGISLATION CITED: Industrial relations Act 1996 s106 FAI General Insurance Co Limited v Southern Cross Exploration NL (1988) 165 CLR 268 CASES CITED: Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203 International Sports Marketing Pty Ltd and anor v Oasis Development Corporation Pty Ltd and ors [2006] NSWIRComm 186 HEARING DATES: 27 June 2008 DATE OF JUDGMENT: 15 July 2008 FIRST AND SECOND APPLICANTS Mr A Britt of counsel Solicitors: Jordan Djundja Mr J Jordan LEGAL REPRESENTATIVES: FIRST TO THIRD RESPONDENTS Mr M Kimber SC Solicitors: Clayton Utz Mr J Catanzariti JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Tuesday 15 July 2008 Matter No IRC 3558 of 2003 International Sports Marketing Pty Ltd and anor v Oasis Development Corporation Pty Ltd and ors (No 3) Application under s 106 of the Industrial Relations Act 1996 JUDGMENT ON INTERLOCUTORY APPLICATION TO EXTEND TIME FOR FILING OF APPLICANTS' AFFIDAVITS IN REPLY [2008] NSWIRComm 132 1 These are proceedings brought by the applicants, International Sports Marketing Pty Ltd and Achilles Constantinidis, against a number of respondents seeking relief under s 106 of the Industrial Relations Act 1996 ("the Act"). The proceedings were commenced in 2003 and have been considerably delayed by the inactivity and other conduct of the second applicant, Mr Constantinidis. Some of the history of the matter is referred to in my judgment in International Sports Marketing Pty Ltd and anor v Oasis Development Corporation Pty Ltd and ors [2006] NSWIRComm 186. In that judgment, I dealt with a motion by the respondents to have the proceedings dismissed for want of prosecution, which I dismissed. However, in doing so I said in part, "[44] As will have been gathered from the recitation of the history of this matter and the comments I have made concerning the inactivity of Mr Constantinidis and his attitude to the proceedings, I am persuaded that there has not been sufficient effort and commitment by the applicants to prosecuting them appropriately. However, these deficiencies do not in the aggregate warrant them being struck out at this stage. On this basis, I would propose to dismiss the Motion accordingly. I propose to reserve the costs of these strike out proceedings. The parties should have an opportunity at an appropriate stage to make submissions with respect to costs and, in any event, the costs of these proceedings may become relevant at some future time." 2 In requiring that a timetable be set for the preparation of the proceedings, I said, "[49] If the applicants or their solicitor become aware of any circumstances which will or may cause a failure to comply with the timetable, the applicants' solicitor, Mr James Jordan, is required personally to exercise the liberty to apply and will be expected to provide the Court with an appropriate explanation when the matter is listed for directions, if necessary verified by the affidavit of Mr Constantinidis. Any such affidavit will need to avoid the deficiencies I have referred to in pars [36], [38] and [39] above." 3 The applicants have now filed their evidence in chief and this occurred in December 2006. The respondents' evidence was filed by 12 July 2007. Since then, the further progress of the proceedings has awaited affidavits in reply by the applicants. 4 On 9 April 2008, I completed the hearing of a motion filed by the respondents to have the proceedings dismissed because of the failure of the applicants to file any affidavit material in reply. In an ex tempore judgment delivered that day, I ordered that the second applicant file and serve on or before 4 June 2008 all affidavits on which he sought to rely as evidence in reply in the proceedings and ordered that the proceedings be dismissed unless that affidavit material was filed within that time. I gave leave to the second applicant to apply for an extension of time or to otherwise vary the order which I had made provided that application to do so was filed prior to 4 June 2008 or the consent of the respondents had been obtained prior to that date. Any such application for the variation of the order was required to be made on motion supported by affidavit material demonstrating that circumstances had arisen that were then unforeseen either by the second applicant or his legal representatives. I should add for completeness that the orders made on 9 April 2008 were consent orders and that the applicants had thereby agreed to them being made. 5 The time thus fixed for the filing of the applicants' affidavit material in reply was a period of about 8 weeks. 6 On 4 June 2008, the applicants' solicitor, Mr James Jordan, forwarded by facsimile transmission a letter to my associate, a copy of which was forwarded in the same manner to the respondents' solicitors. The letter enclosed a copy report of Dr Chris Eliades. The letter said in part, "We are instructed that our client suffered a serious motor vehicle accident on 15 May 2008. As a result our client has been suffering from difficulty breathing and extreme pain. The accident was reported to Constable Ireland at Westwood Local Area Command. As a result our client has been unable to complete his affidavits in reply. We anticipate that we will have the affidavits in reply completed on or by 10 June 2008. We apologise for any inconvenience and are happy to relist this matter on short notice to formally advise the Court if you believe it is appropriate in the circumstances." 7 The report of Dr Eliades, which is undated but which appears to have been forwarded by him to "Windsor Turf Supplies" by facsimile on 20 May 2008, states that he examined Mr Constantinidis on 19 May 2008. The report continued, "He is suffering from injuries sustained from an alleged motor vehicle accident on 15th May 2008. He complains of severe chest wall pain and he has been referred to an x-ray to exclude a fracture, alternatively he has suffered a soft tissue injury to his chest wall. This has created some breathing difficulty and extreme pain. He also sustained direct trauma to his left knee. He is unfit from 19-05-08 for three weeks and will be reviewed within that period." 8 After that date, the respondents sought to exercise the liberty to apply which had been granted to have the Court determine the question of costs on the basis that the proceedings had ipso facto been dismissed as a result of my prior order, the applicants having failed to file any affidavit material in reply. Thereupon, on 24 June 2008, the applicants filed a motion to vacate the order that I had made on 9 April 2008. Ultimately, at the hearing of that notice of motion, which is the subject of this judgment, counsel for the applicants said that the applicants would be in a position to complete the filing of their affidavit material in reply by 11 July 2008, a period of 14 days from the date of hearing, namely 27 June 2008. 9 In support of the notice of motion, Mr Constantinidis swore an affidavit on 23 June 2008. He gave oral evidence during the course of the hearing of the notice of motion and was cross-examined. 10 In his affidavit, Mr Constantinidis said that the motor vehicle accident was a serious one. He was helped out of his vehicle "with only some bruising to the neck and knees and a pain in the chest. This accident aggravated conditions from my previous accident where I had bruised and fractured cartilages in the chest area." Mr Constantinidis said that he had been bed-ridden for approximately three weeks and as at 23 June 2008, was still recovering in bed "at least 70% of my time." He said that after the accident he moved from his place of residence, presumably at Stanmore, and lived with his sisters in Windsor whilst they looked after him. Mr Constantinidis said that he continued to suffer from "mild pain" to the left side of his chest, that he had difficulty breathing and had a continuous pain in his left knee and left shin muscle. Furthermore, his pain had subsided "only recently to the point where I can sit up in bed or sit at a desk and read documents to finalise the affidavits in reply in this matter." As a result of his "great pain and suffering" Mr Constantinidis said that he was unable to attend a conference with his solicitor or counsel to "complete the affidavits in reply" as he was unable to leave his sisters' house. Because of his pain, he was unable to cause the medical report of Dr Eliades to be forwarded to his solicitor until late afternoon on 3 June 2008. 11 In oral evidence, Mr Constantinidis said that he had not obtained any medical treatment prior to attending on Dr Eliades on 19 May 2008. He did have an x-ray, which did not reveal any fracture. He has sought no further medical treatment and has not returned to see Dr Eliades. I note that the surgery of Dr Eliades is in Coogee and presumably Mr Constantinidis travelled either from Stanmore or Windsor to Coogee for the purpose of the medical examination on 19 May 2008. 12 Mr Constantinidis was asked to explain what steps he had taken between 9 April 2008 and 15 May 2008 to prepare his affidavits in reply. He said that during that period he went through the affidavits in detail and made notes on them. He also made enquiries of credit officers of a bank to obtain certain documentation and contacted other persons. 13 It is clear from the evidence of Mr Constantinidis given under cross-examination that he had not really commenced the preparation of any affidavit material in reply prior to 9 April 2008. Thereafter, and until 15 May 2008, there is no evidence available which would suggest that Mr Constantinidis either personally or through his solicitors had advanced the preparation of affidavits in reply in any meaningful sense. 14 In explaining the delay prior to 9 April 2008, the applicant said that this was partly as a result of "severe illnesses and other issues" and partly because certain documents had gone missing when he had moved address and stored them in some factory premises. As it transpired, the applicant had prepared an affidavit in reply to three affidavits which had been filed by the respondents in May 2007. That affidavit in reply was sworn on 26 June 2008. That affidavit in reply is essentially 12 pages in length and consists predominantly of denials of certain material in each of the respondents' affidavits. There is no reference to any particular documentation other than the contents of each of the affidavits. 15 Whilst I acknowledge that it is difficult to assess the amount of time which might properly be expended in preparing an affidavit in reply of the kind filed by Mr Constantinidis, I am unable to discern why it could not have been prepared shortly after each of the affidavits was filed in May 2007. 16 Mr Constantinidis bears the burden of demonstrating why the further indulgence of the Court should be granted to him in the exercise of discretion in all the relevant circumstances of the proceedings. Relevant principles 17 It was not in contention that this Court has the power to extend time for compliance with the self-executing order which has already been made and that that power might be exercised even after the expiry of the date upon which the self-executing order operated. For completeness I note that the relevant authority is to be found in the High Court of Australia in FAI General Insurance Co Limited v Southern Cross Exploration NL (1988) 165 CLR 268, especially per Wilson J at 283 – 284, whose reasons were adopted by other members of the Court. 18 The relevant principles which otherwise apply were conveniently summarised by French J in the Federal Court of Australia in Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203. 19 At [106] his Honour said, "[106] In considering whether an action should stand dismissed without extension of time pursuant to a self-executing order or otherwise be dismissed under O 10 r 7, there is a number of relevant factors to be considered including: 1. The seriousness of the non-compliance. 2. The reason for the non-compliance. 3. The history of delay or breach of orders in the past on the part of the applicant. 4. Any prejudice to the applicant arising from the dismissal of the proceedings. 5. Any prejudice to the respondents from permitting the proceedings to continue. 6. The authority of the Court. The question whether the particular order of 1 May 2001, has been obeyed also requires an evaluative judgment. That judgment must be informed by the proposition that the Court will not lightly deny a party a trial for failure to meet a procedural requirement. There must be a realistic appreciation that in complying with this particular order, it could not be expected that the filing of evidence by the applicant would, as it were, capture its case in amber. There may be witnesses to be called who are not prepared to swear affidavits and who would be required to produce documents or give testimony under subpoena. There must also be retained a degree of flexibility which will allow the matters in dispute in the case to be brought into sharper focus, the real issues identified and false issues discarded. Litigation is a dynamic process and the rules and directions under which it is managed must be able to accommodate that reality. On the other hand, where there is a history of failure to obey the Court's orders there may be a more rigorous approach to the minimum requirements of a self-executing order." 20 In the context of these particular proceedings there does not appear to me to be any of the complicating matters that are referred to in the observations of French J which appear in the second part of [106] extracted above. No reason is advanced for the failure of Mr Constantinidis to complete his affidavit material in reply in compliance with the consent order, which I had previously made, save for the professed difficulty arising from the motor accident. 21 Taking each of the six matters referred to by French J in turn, I would make the following observations: 1. In that Mr Constantinidis has failed to comply with a consent order, in its totality, one would have to regard the non-compliance as serious. Perhaps this observation may be ameliorated by the late preparation of the one affidavit in reply to which I have earlier referred. 2. The reason proffered by Mr Constantinidis for his non-compliance with the order is, as I have set out, the motor vehicle accident and its consequences. There must be, however, some doubt concerning the nature and extent of the injuries suffered by Mr Constantinidis and their effect on his ability to prepare his affidavit material in reply. The report of Dr Eliades is non-specific in this area. It is not clear what Mr Constantinidis is "unfit" to do. On one view of it, his failure to adduce medical evidence which is sufficiently specific concerning the nature and extent of his injuries, the manner in which and the extent to which he was disabled as a result of those injuries and the duration of any disability makes it difficult to assess the validity of the reason given for the non-compliance. Although there must be some doubt about the totality of the evidence given by Mr Constantinidis, on balance I am unable to conclude that Mr Constantinidis has not established that his preparation of the affidavit material in reply was not affected to some extent by the consequences of the motor accident. However, I am unable to quantify that extent because of the paucity of the evidence. 3. I have already referred to the history of the delays occasioned in the preparation in the applicants' case in these proceedings. 4. and 5. It is obvious that Mr Constantinidis will be severely prejudiced if the proceedings are dismissed because he will be time-barred from re-commencing the proceedings. There does not appear to be any particular prejudice accruing to the respondents if the proceedings are permitted to continue. 6. The question of the authority of the Court is one that has created the most difficulty for me in determining the outcome of these interlocutory proceedings. In my earlier judgments, I had referred in clear terms to the necessity for Mr Constantinidis to comply with the orders of the Court in the preparation of his case. Furthermore, in reasons for judgment given on 9 April 2008, when I made the consent order, I made it clear that Mr Constantinidis was required to give notice of any matter which might impact upon the liberty to apply and the ability of the respondents to deal with it as soon as possible. Despite the accident occurring on 15 May 2008, and despite the ability of Mr Constantinidis to attend on Dr Eliades at Coogee on 19 May 2008, and although Mr Constantinidis was in receipt of the report of Dr Eliades on 20 May 2008, no attempt was made to communicate any difficulty in complying with the order of the Court until 4 June 2008. Once again, it is arguable that Mr Constantinidis does not appear to have applied himself diligently to compliance with any aspect of the order made by the Court. The authority of the Court is an important matter because it is an integral part of the efficient and effective administration of justice. 22 On balance, having regard to the circumstances which attach to this interlocutory application and having regard to each of the six matters of principle to which I have referred, it is arguable that Mr Constantinidis should not have the benefit of any further exercise of discretion in his favour. However, there is, in my opinion, one final matter that allows the scales to be tipped ever so slightly in favour of the grant of a further indulgence to Mr Constantinidis. That is, that through his counsel he has agreed that any further extension of time will be limited to a period of 14 days. It is this matter and this matter alone that on balance has persuaded me to accede to the application made by Mr Constantinidis. 23 I will reserve costs. Orders 24 I make the following orders: 1. The applicants' affidavit evidence in reply to the affidavit of Gary John McIntyre, sworn 12 July 2007, must be filed by 4pm 15 days from this date (the date of this judgment being counted for this purpose) in default of which the proceedings brought by the applicants under s 106 of the Industrial Relations Act 1996 will stand dismissed with costs. 2. Costs of this motion are reserved with liberty to apply. 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