Lindsay v Associated Furnishers Ltd

[1997] IRCA 29

DECISION NO:29/97

CATCHWORDS

PRACTICE AND PROCEDURE - SERVICE of Notice of Motion - Notice of Motion and supporting affidavit, seeking costs personally against a barrister, left at his chambers and sent by post to his chambers - Barrister returned the documents with a handwritten note - Barrister not appear to defend the Motion, and no explanation for his absence provided - Court satisfied that service effected in accordance with Order 7 Rule 4, by the leaving of the documents at the barrister’s “proper address”, namely, his “usual or last known place of business” - Order that the hearing of the Motion proceed in the absence of the barrister.

Rules of the Industrial Relations Court of Australia:    Order 7 Rule 4

LINDSAY -v- ASSOCIATED FURNISHERS LIMITED
NI 1864 of 1996


Before:  PATCH JR
Place:  SYDNEY
Date/s of hearing:     17 JANUARY 1997
Date of judgment:    17 JANUARY 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 1864 of 1996

BETWEEN:

DAVID ELLIS LINDSAY
Applicant

AND

ASSOCIATED FURNISHERS LIMITED
Respondent

MINUTES OF ORDERS

17 January 1997 PATCH  JR

THE COURT ORDERS THAT:

1. The hearing of the Motion proceed in the absence of Mr Chamberlain.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 1864 of 1996

BETWEEN:

DAVID ELLIS LINDSAY
Applicant

AND

ASSOCIATED FURNISHERS LIMITED
Respondent

REASONS FOR DECISION

Delivered ex tempore - revised from the transcript

17 January 1997 PATCH  JR

There is a Notice of Motion before the Court seeking an order for costs against Keith Mark Chamberlain, a barrister, and, in the alternative, an order against Mr Anthony Walton.  Mr Walton is present;  Mr Chamberlain is not present. 

I am satisfied that Mr Chamberlain is aware of these proceedings, and I am satisfied that service has been effected, in accordance with Order 7, Rule 4, by the leaving of the Notice of Motion and supporting affidavit at his proper address in accordance with Rule 4(1)(a) of Order 7.  I note that “proper address” is defined in Order 7, Rule 4(2) as the person's usual or last known place of business.

Mr Chamberlain's usual or last known place of business is 8 Windeyer Chambers and the documents were left there in December. 

Furthermore, I am satisfied that Mr Chamberlain has held in his own hands the Notice of Motion and supporting affidavit.  Those documents were sent to him by mail on 16 December 1996 - he returned them with a handwritten note on his chambers letterhead dated 18 December 1996.  Ms Kain, the solicitor for the respondent, has given evidence that the documents returned with that letter and referred to in the sentence "your documents are returned" included the Notice of Motion and supporting affidavit.

I have examined the signature on that letter and also the signature on the Notice of Ceasing to Act filed by Mr Chamberlain, which is exhibit 11 in these proceedings, and I am satisfied in the circumstances that the signatures are those of the same person.  In any event, the circumstance that the documents were sent to Mr Chamberlain at his chambers, and returned with a handwritten note apparently signed by him, establish on the balance of probabilities that Mr Chamberlain received the documents and wrote the note.  So, not only has proper service been effected, but Mr Chamberlain has physically held the documents and returned them. 

This morning I asked the District Registrar to ring Mr Chamberlain's chambers, as a courtesy to a member of the bar, to remind him of these proceedings and ask him to attend.  Mr Chamberlain was not present at chambers, and the District Registrar was only able to speak to his secretary, who has been, today, unable to contact him.  I will proceed with the hearing of the Notice of Motion in Mr Chamberlain's absence.

The order the Court makes therefore is as follows:

1. That the hearing of the motion proceed in the absence of Mr Chamberlain.

I certify that this and the preceding 2 pages
are a true copy of the reasons for decision of
Judicial Registrar Patch as recorded in the transcript
and revised by the Judicial Registrar.



Associate:     Renee Cauchi
Dated:  19 February 1997




APPEARANCES

Applicant in person
Counsel appearing for the respondent:	Mr I Neil
First respondent to the Notice of Motion:	No appearance
Second respondent to Notice of Motion:	In person
Date of hearing:	17 January 1997