Marshall v Proteus Solutions Limited (in liquidation) and Anor [2006] NSWIRComm 281

Industrial Court of New South Wales

CITATION: Marshall v Proteus Solutions Limited (in liquidation) and Anor [2006] NSWIRComm 281

APPLICANT: Bruce Alan Marshall

FIRST RESPONDENT: PARTIES: Proteus Solutions Limited (in liquidation) ACN 081 760 518)

SECOND RESPONDENT: Patricia Anne Mackay Sneddon

FILE NUMBER(S): IRC 1831 of 2002

CORAM: Schmidt J

CATCHWORDS: Unfair contract - adjournment application sought by second respondent - second respondent wishing to consider the question of appealing the Supreme Court decision of granting the applicant leave to proceed against the First Respondent in this Court - adjournment application declined

HEARING DATES: 30/08/06 EXTEMPORE JUDGMENT DATE: 08/30/2006

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:

- 2 - INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Schmidt J

30 August 2006

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 (extempore)

[2006] NSWIRComm 281

1 Having considered the second respondent's application for an adjournment of the hearing, I take the view that such an adjournment ought not to be granted. 2 The application is made in circumstances where yesterday, the Supreme Court granted the applicant leave to proceed against the First Respondent under s 500 of the Corporations Law. I understand the second respondent was heard in those proceedings and now wants to consider the question of an appeal from the decision given by Palmer J. The applicant opposes the adjournment sought. 3 I am satisfied that so far as this Court's jurisdiction is concerned the fact that the application for leave to proceed has been granted, reflects that the applicant has taken the necessary step in approaching the Supreme Court, as the Corporations Law requires. In those circumstances, I take the view that the proper course is not to grant the adjournment now sought, in circumstances where all that the second respondent raises, is that there is a desire now to take the opportunity to consider whether an appeal should be lodged against the decision to grant leave, and then if it is to be pressed, that the hearing be adjourned, while the appeal is heard. 4 Palmer J has exercised the Supreme Court's discretion to grant the applicant the leave sought. That there might be an appeal and, if so, that the Court of Appeal might take the view that the exercise of the Supreme Court's discretion miscarried is, in my view, not a proper basis for this Court to decline at this stage, to hear the applicant's case. It has long been fixed for hearing and the Supreme Court has now granted the applicant the necessary leave to proceed, after hearing the parties. 5 While the second respondent argues that, as a matter of fairness, she ought also to be given the opportunity to consider and press an appeal, which would go to the Court's jurisdiction, fairness, of course, always requires that a balance be achieved between the parties. The fact that leave to proceed has been granted by the Supreme Court, in this case, I think sways that balance in the applicant's favour and so the hearing should proceed, there being at this point no doubt of the Court's jurisdiction to hear the applicant's claim. 6 It is for those reasons that I decline the application for adjournment. ------------------------