Darc Rasmussen v Eltrax Systems Pty Ltd [2004] NSWIRComm 307

Darc Rasmussen v Eltrax Systems Pty Ltd [2004] NSWIRComm 307

Leave to file the amended summons was granted because the amendments did not introduce significant new facts, reformulated elements of the claims, the respondents had not yet filed evidence, no hearing date had been set, and no relevant prejudice was shown. Leave to serve the summons and amended summons on the fifth respondent was granted because the earlier interlocutory appeal did not estop the applicant from seeking fresh leave, adequate reason existed to treat the summons as valid and extend time, no prejudice to the fifth respondent was established, refusal would prejudice the applicant, and the jurisdictional and enforceability objections concerning the foreign fifth respondent...

Jurisdiction
Australia
Judgment Date
15 October 2004
Procedural Posture
Application Under Section 106 of the Industrial Relations Act 1996 / Interlocutory Notice of Motion Seeking Leave to File an Amended Summons for Relief and Leave to Serve the Summons for Relief and Amended Summons for Relief on the Fifth Respondent
Outcome
Notice of motion granted; leave granted to file amended summons and to serve the summons for relief and amended summons for relief on the fifth respondent; costs reserved.
Legal Topics
['amendment of Summons' 'service Out of Time' 'service on Foreign Corporation' 'stale Originating Process' 'estoppel' 'foreign Judgments' 'section 106 Unfair Contract Proceedings']
['industrial Relations' 'practice and Procedure' 'unfair Contract'] ['amendment of Summons' 'service Out of Time' 'service on Foreign Corporation' 'stale Originating Process' 'estoppel' 'foreign Judgments' 'section 106 Unfair Contract Proceedings']

Case Brief

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Procedural Posture

Application Under Section 106 of the Industrial Relations Act 1996 / Interlocutory Notice of Motion Seeking Leave to File an Amended Summons for Relief and Leave to Serve the Summons for Relief and Amended Summons for Relief on the Fifth Respondent

Legal Issues

  1. 1 ['Whether leave should be granted to file an amended summons for relief under s 106 of the Industrial Relations Act 1996.' 'Whether the applicant was estopped from seeking leave to serve the fifth respondent after earlier interlocutory orders were set aside on appeal.' 'Whether adequate reason existed to treat the summons for relief as valid and extend time for service on the fifth respondent.' 'Whether leave to serve the fifth respondent should be refused because the fifth respondent was a foreign corporation and the alleged contract or arrangement may not have a sufficient connection with New South Wales.' 'Whether possible non-enforceability of a judgment in the United States justified refusing leave to serve the fifth respondent.']

Ratio Decidendi

Leave to file the amended summons was granted because the amendments did not introduce significant new facts, reformulated elements of the claims, the respondents had not yet filed evidence, no hearing date had been set, and no relevant prejudice was shown. Leave to serve the summons and amended summons on the fifth respondent was granted because the earlier interlocutory appeal did not estop the applicant from seeking fresh leave, adequate reason existed to treat the summons as valid and extend time, no prejudice to the fifth respondent was established, refusal would prejudice the applicant, and the jurisdictional and enforceability objections concerning the foreign fifth respondent...

Court Disposition

Notice of motion granted; leave granted to file amended summons and to serve the summons for relief and amended summons for relief on the fifth respondent; costs reserved.

Orders

  • ['For the purpose of Part 7 Rule 7(1) of the Supreme Court Rules 1970 the Summons for Relief filed by the applicant in these proceedings on 25 June 2001 is valid.' 'Leave is granted to the applicant to file the Amended Summons for Relief within seven days of the date of this judgment.' 'Leave is granted to the...