Piriz v AAPT Limited (No 2) [2006] NSWIRComm 75

Piriz v AAPT Limited (No 2) [2006] NSWIRComm 75

Although the applicant did not strictly comply with Order 4 because service by facsimile was not authorised by r 105(d), the affidavits were substantially served and the Court had power under rr 88 and 134 to waive procedural default and vary time requirements notwithstanding the self-executing orders. In the interests of justice, the applicant's case should not be dismissed due to the dilatory conduct of his solicitor, but the respondent should have indemnity costs of the motions, with the solicitor required to show cause under r 209 as to whether he should pay those costs and have costs as between solicitor and client disallowed.

Jurisdiction
Australia
Judgment Date
15 March 2006
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Competing Notices of Motion Concerning Compliance With Self Executing Orders, Service of Affidavits, Extension or Waiver of Procedural Requirements, and Costs
Outcome
Applicant obtained relief from the service default; respondent awarded indemnity costs of the motions, with the question of whether the applicant's solicitor should pay those costs adjourned for submissions.
Legal Topics
['unfair Contract' 'self Executing Orders' 'service by Facsimile' 'irregular Service' 'extension of Time' 'waiver of Procedural Requirements' 'indemnity Costs' 'solicitor Costs Orders']
['industrial Law' 'civil Procedure' 'costs'] ['unfair Contract' 'self Executing Orders' 'service by Facsimile' 'irregular Service' 'extension of Time' 'waiver of Procedural Requirements' 'indemnity Costs' 'solicitor Costs Orders']

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Competing Notices of Motion Concerning Compliance With Self Executing Orders, Service of Affidavits, Extension or Waiver of Procedural Requirements, and Costs

Legal Issues

  1. 1 ['Whether the applicant complied with Order 4 requiring all affidavit material to be filed and served by 23 December 2005' 'Whether service of affidavits by facsimile constituted valid service under the Industrial Relations Commission Rules 1996' 'Whether the Court could waive defects in service or extend time notwithstanding the operation of self-executing orders' "Whether the respondent should receive indemnity costs and whether the applicant's solicitor should be required to show cause why he should pay those costs"]

Ratio Decidendi

Although the applicant did not strictly comply with Order 4 because service by facsimile was not authorised by r 105(d), the affidavits were substantially served and the Court had power under rr 88 and 134 to waive procedural default and vary time requirements notwithstanding the self-executing orders. In the interests of justice, the applicant's case should not be dismissed due to the dilatory conduct of his solicitor, but the respondent should have indemnity costs of the motions, with the solicitor required to show cause under r 209 as to whether he should pay those costs and have costs as between solicitor and client disallowed.

Court Disposition

Applicant obtained relief from the service default; respondent awarded indemnity costs of the motions, with the question of whether the applicant's solicitor should pay those costs adjourned for submissions.

Orders

  • ["I extend the provisions of r 105(d) of the Industrial Relations Commission Rules to provide that the applicant may serve any affidavits filed or received by the Registrar on 23 December 2005, by faxing a copy of the affidavits to the respondent's solicitors on the same date." 'To the extent that there is any...