L & W Developments Pty Limited v Alain Della [2004] NSWSC 309

New South Wales Supreme Court

CITATION : L & W Developments Pty Limited v Alain Della [2004] NSWSC 309 HEARING DATE(S) : 25/03/04 JUDGMENT DATE : 26 March 2004

JURISDICTION: Equity Division Commercial List JUDGMENT OF : Einstein J DECISION : Stay to be lifted on terms.

CATCHWORDS : Stay of proceedings in Commercial List pending determination of related proceedings in Industrial Relations Commission - Application to lift stay for breach of undertakings to diligently prosecute proceedings before Industrial Relations Commission LEGISLATION CITED : Industrial Relations Act 1996 IRC Rules 1996 CASES CITED : L and W Development Pty Ltd v Della [2003] NSWCA 140 PARTIES : L & W Developments Pty Limited (Plaintiff) Alain Della (Defendant) FILE NUMBER(S) : SC 50143/02 COUNSEL : Mr S Wheelhouse (Plaintiff) Mr R Butler (Defendant) SOLICITORS : Gye & Associates (Plaintiff) Mannix Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Einstein J

Friday 26 March 2004 ex tempore Revised 21 April 2004

50143/02 L & W Development Pty Limited v Alain Della JUDGMENT 1 There is before the Court a notice of motion filed on 4 March 2004 pursued by the plaintiff for a vacation of the stay of proceedings ordered on 8 November 2002 in the proceedings. 2 It is unnecessary to repeat the record. Suffice it to say, that the reasons of the Court of Appeal [L and W Development Pty Ltd v Della [2003] NSWCA 140] delivered on 5 June 2003 by Mason P, with whom Giles JA and Santow JA agreed, set out in great detail the then position clarifying the factors which required then to be taken into account in terms of the balancing exercise required by the interests of justice where the subject exercise of discretion came up for determination. Although there has been an interval of time between that date and the hearing of the motion the subject of this judgment, as a general matter, it is quite plain that those very same factors require to be taken into account. There are, however, additional matters which require to be examined and carefully weighed in the balance. 3 In other circumstances, it may have been necessary for the Court to treat with the principles governing the stay sought in these proceedings and the jurisprudential background underpinning the proper exercise of that discretion. That the Court of Appeal has so very carefully and thoroughly treated with that subject matter makes it otiose for the Court now to re-enter that same arena. Having said that, of course it is the case that not every one of the factors which then were of immediate concern to the Court of Appeal are the same factors which are of immediate concern to this Court. This is simply an exigency of the passage of time and the obviously instant-specific needs of an exercise of the relevant discretion on the occasion when a particular application is before the Court. 4 As a matter of convenience I intend to refer to the plaintiff in the Supreme Court proceedings, which is the respondent to the IRC proceedings, as "the plaintiff" and to the defendant in the Supreme Court proceedings, which is the claimant in the IRC proceedings, as "the defendant". 5 Importantly, the plaintiff has produced, and the submissions from the parties have focused upon, a very carefully prepared chronology which forms the fulcrum of most of the attention underpinning the respective stances taken by the parties before me. 6 That chronology is conveniently appended to the judgment as Appendix "A". 7 The gravamen of the reasons given by the Court of Appeal accepted the significance of a stay of proceedings commenced in a superior court and heavily emphasised the fact that the orders effected only a temporary conditional stay of these proceedings: that is to say, provided a regime that suspended further prosecution of these proceedings conditionally upon the expeditious prosecution of the IRC proceedings. So much is apparent from the reasons given by the learned President [at 37], where he made the further point that: