Dr Gibson v Western Sydney Area Health Service [2001] NSWIRComm 126

Dr Gibson v Western Sydney Area Health Service [2001] NSWIRComm 126

The respondent's application for a declaration was treated as subject to r 82(2)(c) because the notice of motion expressly referred to both s 154 and r 82(1)(g), the proposed declaration was inconsistent with an unconstrained s 154 declaration, and refusing to treat it otherwise caused no prejudice because the jurisdiction contention could be raised in the substantive proceedings. The r 82 application was out of time, and the respondent provided no complete and satisfactory explanation for the delay after receiving the amended summons. The Court therefore refused the extension of time and refused the applications in both notices of motion.

Jurisdiction
Australia
Judgment Date
06 June 2001
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996; Unfair Contract / Interlocutory Judgment on Respondent's Notices of Motion Seeking a Declaration of No Jurisdiction, Setting Aside of the Amended Summons, and Extension of Time
Outcome
The respondent's applications were refused and costs were reserved.
Legal Topics
['unfair Contract' 'interlocutory Application' 'jurisdiction' 'setting Aside Originating Process' 'extension of Time' 'declaratory Relief']
['industrial Relations' 'practice and Procedure' 'health Services'] ['unfair Contract' 'interlocutory Application' 'jurisdiction' 'setting Aside Originating Process' 'extension of Time' 'declaratory Relief']

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996; Unfair Contract / Interlocutory Judgment on Respondent's Notices of Motion Seeking a Declaration of No Jurisdiction, Setting Aside of the Amended Summons, and Extension of Time

Legal Issues

  1. 1 ["Whether the respondent's application for a declaration should be treated as an application under s 154 of the Industrial Relations Act 1996 unconstrained by r 82(1)(g) of the Industrial Relations Commission Rules 1996, or as subject to the time limit in r 82(2)(c)." 'Whether time should be extended for the respondent to file its notice of motion to set aside the amended summons and seek a declaration under r 82(1)(g).' "Whether the respondent's applications in the notices of motion filed on 13 July 2000 and 8 August 2000 should be granted."]

Ratio Decidendi

The respondent's application for a declaration was treated as subject to r 82(2)(c) because the notice of motion expressly referred to both s 154 and r 82(1)(g), the proposed declaration was inconsistent with an unconstrained s 154 declaration, and refusing to treat it otherwise caused no prejudice because the jurisdiction contention could be raised in the substantive proceedings. The r 82 application was out of time, and the respondent provided no complete and satisfactory explanation for the delay after receiving the amended summons. The Court therefore refused the extension of time and refused the applications in both notices of motion.

Court Disposition

The respondent's applications were refused and costs were reserved.

Orders

  • ["The applications for orders in the respondent's notices of motion filed in these proceedings on 13 July 2000 and 8 August 2000 are refused." 'Costs are reserved.']