Hardinge v Gert Schidor Design Pty Ltd & Anor (No 2) [2005] NSWIRComm 174

Hardinge v Gert Schidor Design Pty Ltd & Anor (No 2) [2005] NSWIRComm 174

The stay was refused because the respondents did not establish the necessity required for interlocutory intervention, the Commission in Court Session is a superior court of record whose decisions are protected by s 179 of the Industrial Relations Act 1996, the pleaded contract was strongly arguable as within the unfair contracts jurisdiction, the jurisdictional objections were not apparent knockout points and could be determined by the Commission, and case management delay weighed against a stay. The Notice to Produce was not set aside because the documents had a legitimate forensic purpose relevant to the pleaded unfairness. Leave to amend was granted because the amendment was in the...

Jurisdiction
Australia
Judgment Date
31 May 2005
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 Concerning Alleged Unfair Contract / Interlocutory Judgment on Notices of Motion for a Stay, to Set Aside a Notice to Produce, and to Amend the Summons
Outcome
Respondents' stay application refused; Notice to Produce not set aside and production ordered; applicant granted leave to further amend summons; costs reserved.
Legal Topics
['unfair Contract' 'stay of Proceedings' 'prohibition' 'notice to Produce' 'amendment of Summons' 'privative Clause']
['industrial Relations' 'practice and Procedure'] ['unfair Contract' 'stay of Proceedings' 'prohibition' 'notice to Produce' 'amendment of Summons' 'privative Clause']

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 Concerning Alleged Unfair Contract / Interlocutory Judgment on Notices of Motion for a Stay, to Set Aside a Notice to Produce, and to Amend the Summons

Legal Issues

  1. 1 ["Whether the Commission in Court Session should stay the whole proceedings pending determination by the NSW Court of Appeal of the respondents' summons seeking prohibition against the Commission exercising power under s 106 of the Industrial Relations Act 1996." "Whether the applicant's Notice to Produce seeking the first respondent's financial documents should be set aside as an abuse of process or illegitimate discovery." 'Whether the applicant should be granted leave to further amend the amended summons for relief.']

Ratio Decidendi

The stay was refused because the respondents did not establish the necessity required for interlocutory intervention, the Commission in Court Session is a superior court of record whose decisions are protected by s 179 of the Industrial Relations Act 1996, the pleaded contract was strongly arguable as within the unfair contracts jurisdiction, the jurisdictional objections were not apparent knockout points and could be determined by the Commission, and case management delay weighed against a stay. The Notice to Produce was not set aside because the documents had a legitimate forensic purpose relevant to the pleaded unfairness. Leave to amend was granted because the amendment was in the...

Court Disposition

Respondents' stay application refused; Notice to Produce not set aside and production ordered; applicant granted leave to further amend summons; costs reserved.

Orders

  • ["The respondents' application to stay the whole of the proceedings is refused." "The respondents are ordered to appear before Boland J, with the documents described in the applicant's Notice to Produce dated 11 March 2005, at 9.45 am on Tuesday 7 June 2005." 'Leave is granted to the applicant to further amend the...