Marshall v Proteus Solutions Limited (in liquidation) and Anor (No 2) [2007] NSWIRComm 66

Industrial Court of New South Wales

CITATION: Marshall v Proteus Solutions Limited (in liquidation) and Anor (No 2) [2007] NSWIRComm 66

APPLICANT: Bruce Alan Marshall

PARTIES: FIRST RESPONDENT: Proteus Solutions Limited (in liquidation)

SECOND RESPONDENT: Patricia Anne Mackay Sneddon

FILE NUMBER(S): IRC 1831 of 2002

CORAM: Schmidt J

CATCHWORDS: Practice and Procedure - unfair contract - application by applicant to re-open case - application refused - costs

LEGISLATION CITED: Industrial Relations Act 1996

Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 CASES CITED: Smith v New South Wales Bar Association (1992) 176 CLR 256 Urban Transport Authority of New South Wales v Nweiser (1991) 28 NSWLR 471

DATE OF JUDGMENT: 30 March 2007

APPLICANT: Mr JP Phillips SC SOLICITORS: Baker & McKenzie LEGAL REPRESENTATIVES: SECOND RESPONDENT: Ms MAC Painter of counsel and Ms B Britt of counsel SOLICITORS: ERA Legal

JUDGMENT:

- 8 - INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Schmidt J

30 March 2007

Matter No IRC 1831 of 2002

BRUCE ALAN MARSHALL V PROTEUS SOLUTIONS LIMITED (IN LIQUIDATION) AND ANOTHER

Application under s.106 of the Industrial Relations Act 1996

JUDGMENT

(No 2) [2007] NSWIRComm 66

1 Final submissions were made in these proceedings on 13 December 2006 and the decision reserved. Later on 13 December, after the adjournment of the proceedings, Mr Phillips SC wrote to my Associate on behalf of the applicant, drawing attention to questions which had arisen during submissions about the question of mitigation in this case and the operation of s 106(6) of the Industrial Relations Act 1996 ('the Act'). Copies of extracts from various texts were attached. 2 A copy of the correspondence had been sent to Ms Painter of counsel, after Mr Phillips SC had first advised her of the course which he proposed to take. No objection to that course was taken by the second respondent and there was a response filed on 17 December 2006. 3 On 30 January 2007, Mr Phillips SC wrote again to my Associate in relation to the question of mitigation. On this occasion, a further written submission on the question was provided, together with 'relevant financial records of the Applicant's earnings since the termination of his contract with the First Respondent, in or about March 2002', which it was said 'the applicant now seeks to tender'. This material was taken from a bundle of documents filed in the proceedings in accordance with directions earlier given for preparation of the matter for hearing. The documents had not, however, been tendered by either party at the hearing. The submissions sought to both further address the relevant law and to advance submissions about this new material. 4 On 16 February 2007, Ms Painter wrote to my Associate, objecting to the course which had been taken for the applicant without notice to the respondent, nor leave of the Court. It was submitted that for the additional material to be received, the applicant would need to seek leave to re-open his case. Such leave would be opposed, because the further submissions were made well after the conclusion of the proceedings; the material sought to be tendered did not form part of the applicant's case in chief and the applicant was not cross examined on it; Ms Sneddon, the second respondent, was defending the proceedings in circumstances there the first respondent, a company in liquidation, was not a participant in the proceedings, had reached an agreement with the applicant not to defend the proceedings and where the applicant had agreed to refrain from enforcing any damages or costs orders against the first respondent. The applicant, with the benefit of hindsight and with the advantage of having seen the second respondent's entire case, sought to re-open. If such leave were granted, an unfairness would result which could not be cured by a costs order. 5 It was also put that the applicant had been represented at trial by a leading law firm and by senior counsel. The conduct of his case must have been a considered and deliberate affair and such late attempts to 'strap up' his case ought not now to be permitted. 6 The matter was relisted on 21 February 2007, when an application for leave was made by Mr Phillips SC, on the basis of short oral submissions. Ms Painter confirmed that the leave sought was opposed and a timetable was fixed for the filing of written submissions on that question. 7 The last of these submissions was filed on 19 March 2007. 8 The respondents' case was that there is a public interest in maintaining the finality of litigation. (See Smith v New South Wales Bar Association (1992) 176 CLR 256 at p 265.) The exercise of the discretion to permit a re-opening was dealt with in Urban Transport Authority of New South Wales v Nweiser (1991) 28 NSWLR 471 at p 476: