Ary v Sydney South West Area Health District [2013] NSWIRComm 96 | Case summary

Judgment (10 paragraphs)

[1]

DECISION 1Tazra Ary has sought leave to appeal and, if leave were to be granted, to appeal from a decision of Tabbaa C in which the Commissioner declined to grant Ms Ary relief in relation to an unfair dismissal claim and dismissed the claim: see Ary v Sydney South West Pathology Service [2013] NSWIRComm 1010. 2The application for leave to appeal and appeal, however, was filed out of time and so Ms Ary has necessarily sought an extension of time in which to appeal. This decision concerns the extension application.

[2]

Background 3Ms Ary had been employed on a part time basis since August 2009 as a Technical Assistant within the Pathology Department of Liverpool Hospital. Ms Ary had applied for promotion on two occasions in 2010, but had been unsuccessful. She was apparently disappointed by these failures. However, that disappointment appears to have been particularly heightened by a co-worker convincing Ms Ary that the work environment was corrupt because people could pay to progress their careers. 4This disappointment triggered complaints by Ms Ary in December 2010 of bullying by co-workers and of corrupt recruitment and management practices in the Biochemistry Laboratory on the basis of her belief that one was required to offer bribes to staff members in order to obtain promotions. Ms Ary's complaints were apparently investigated and in September 2011 she was advised that the investigation found no evidence to substantiate the allegations she had made. Ms Ary was advised that the respondent considered the matter closed and encouraged her to continue to access the Employee Assistance Program (EAP), which she was already utilising having been referred there, as it was considered that she was in need of psychological assistance. 5From there things seemed to spiral downhill for Ms Ary. On 15 September 2011, she developed severe acute anxiety with shortness of breath, chest pains, nausea and a burning tongue after eating her lunch at work. Ms Ary believed she had been poisoned. Tests proved negative, although Ms Ary claimed the test were inadequate. Ms Ary made various claims and pleas for help to amongst others, the police, the Prime Minister, the New South Wales Minister for Health and the Anti-Discrimination Board. 6In January 2012, Ms Ary lodged a workers' compensation claim, citing psychological injuries as a result of her alleged poisoning in the workplace. That claim was declined on the basis of a factual investigation and independent medical examination which found that the applicant was suffering from an underlying mental health disorder not related to her work. 7In March 2012, following a further investigation into her allegations, Ms Ary was advised the allegations were unsubstantiated. 8On 21 August 2012, the Applicant attended an independent clinical evaluation by Dr Stephen Allnutt, Forensic Psychiatrist, who provided a report on the same day. Tabbaa C recorded at [36] of her decision what Ms Ary had told Dr Allnutt:

Legal principles 19In Samimi v Seyedabadi; Samimi v Seyedabadi [2013] NSWCA 279 McColl JA considered the relevant principles applicable to an application to extend time to appeal. At [29]-[32] her Honour stated: [29] In Nanschild v Pratt [2011] NSWCA 85 I observed in relation to an application to extend time to file a notice of appeal that: "38 The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. This means that the discretion can only be exercised upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458(at 459) per McHugh J. 39 The underlying premise to these propositions in Gallo (as is made apparent in Jackamarra v Krakouer; (1998) 195 CLR 516 (at [7]) per Brennan CJ and McHugh J) is that the Court's approach to an application to extend the time for filing an appeal from a judgment determining substantive rights (or here to seek leave to appeal) 'at any time' recognises that 'the respondent to the application has a vested right to retain the judgment' proposed to be the subject of appeal: Jackamarra v Krakouer (at [4]); Tomko v Palasty (No 2) [2007] NSWCA 369 (at [55]) per Basten JA (Hodgson and Ipp JJA agreeing)." [30] In Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61(at [55]) Basten JA referred to the following factors as relevant to the question as to whether to grant extension of time to appeal as being the length of delay, the reasons for the delay, whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent. [31] Hodgson JA said (Tomko v Palasty (No 2) at [14]) that: "... there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable." [32] I am acutely conscious of the Court's overriding purpose to ensure that litigation is resolved in a timely fashion and, in particular, that applications to extend time should be considered in the framework constituted by ss 56-60 of the Civil Procedure Act 2005 and, too, against the background of the modern approach to despatch of litigation and the need for reasonable expedition: Richards v Cornford (No 3) [2010] NSWCA 134 (at [98], [110]) per Allsop P (McColl JA agreeing). Section 58(1) requires the court, in considering whether to make any order of a procedural nature, to seek to act in accordance with the dictates of justice. That includes the effect of s 56 and s 57 of the Civil Procedure Act (s 58(2)(a)) as well as such matters as the court considers relevant as set out in s 58(2)(b). The latter matters include the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction: s 58(2)(b)(iv). 20I respectfully adopt the principles referred to by McColl JA in Samimi.

Consideration 21The application for leave to appeal and appeal was 34 days out of time. That is not a lengthy period. However, I note that Ms Ary was aware of the time limits imposed by the Act for the filing of such applications. Notwithstanding that knowledge Ms Ary proceeded to make appointments with local members of parliament, and to seek legal advice. The delay, Ms Ary said, was caused by the time it took to arrange the appointments. As to advice received from parliamentary members it appears Ms Ary was told it was "a matter for the court." There was no indication Ms Ary did, in fact, seek and obtain legal advice. 22I do not consider Ms Ary's explanation for not filing in time is a reasonable one. Ms Ary knew of the opportunity to appeal and of the time limit and it was clearly open to her to file the application to appeal before the 21-day period expired. Ms Ary could still have sought advice from parliamentarians having filed the appeal notice, although I must say a reasonable person could have had no other expectation than that the advice would have been to exercise the option of an appeal if Ms Ary was dissatisfied with the outcome at first instance. 23That brings me to the question of whether Ms Ary's case on appeal has "more substantial merit than merely being fairly arguable": Tomko v Palasty (No 2) at [14] per Hodgson JA. 24Ms Ary's claim was initially the subject of conciliation proceedings before Bishop C, but these were unsuccessful. The file indicates that Bishop C urged Ms Ary to seek legal advice about how to "run a case" in arbitration and the need for witness statements. Directions were made for the filing and serving of evidence, which included a direction to each of the parties to file written statements to be relied upon for each witness together with relevant documentation by a certain date. 25Ms Ary filed various documents on 12 March and 16 April 2013. The documents consisted of correspondence between herself and various departmental officers, a medical report of Dr Vrjosseck, the results of medical examinations and invoices, a letter from the Health Minister, a one page handwritten document (difficult to decipher) alleged to have been placed in Ms Ary's handbag by an unknown person during Ms Ary's admission to Liverpool Hospital on 17-18 September 2011, evidence of Ms Ary's academic qualifications and a letter to Tabbaa C dated 30 May 2013 (the day of the hearing) indicating the relief she sought, including: analysis of food; test results of blood and urine samples; attendance at the Commission of Mr Anthony Schembri General Manager, Liverpool Hospital; attendance at the Commission of Wyndham Timmins, Business Manager, Sydney South West Pathology Service (Mr Timmins did, in fact, attend and gave evidence for the respondent); attendance at the Commission of Dr Allnutt; and testing of the pain in Ms Ary's chest. 26Ms Ary was self-represented in the proceedings before Tabbaa C. She was sworn in and provided with an opportunity to give her evidence that was in addition to the documentary material earlier described. There was some brief cross-examination of Ms Ary. The proceedings were hindered by a degree of lack of cooperation on Ms Ary's part with directions from the Commissioner trying to maintain an orderly process. However, I do not think it was Ms Ary's intention to be deliberately uncooperative; she simply wanted to get her story across. 27For the respondent a statement of Mr Timmins was filed on 10 April 2013 attached to which were a number of annexures. This was the 26-page document that Ms Ary said in her appeal notice she had not received, notwithstanding the advocate for the respondent having indicated to Tabbaa C the document had been sent to Ms Ary by post. 28Ms Ary complained that the Commissioner was biased against her and favoured the respondent. This was manifested, it was said, by the Commissioner answering the questions Ms Ary had put to Mr Timmins, rather than allowing Mr Timmins to provide the answer. I have read the transcript at first instance and, in my opinion, the Commissioner's intervention was not improper. Tabbaa C was merely attempting to keep some order and to stop Ms Ary arguing with the witness and turning her questions into submissions. 29Ms Ary said she had not received Mr Timmins' statement until the day of the hearing and had not come prepared to cross-examine on the statement. Ms Ary sought an adjournment, which was refused except to provide Ms Ary with an opportunity to read Mr Timmins' statement. Assuming Ms Ary had not received the statement, there was no indication she did not have a copy of the respondent's written reply to her application for relief. That reply was filed on 3 January 2013 and was substantially similar to Mr Timmins' statement. In any event, there was nothing in the statement that would have caught Ms Ary by surprise. Additionally, in her letter to Tabbaa C dated 30 May 2013, Ms Ary specifically sought to have Mr Timmins attend the Commission. 30Litigation is to be resolved in a timely fashion: Samimi at [32]. In my opinion, even having regard to the fact that Ms Ary was self-represented, Ms Ary had every opportunity to seek legal advice, to prepare for the arbitration proceedings and to be in a position to cross-examine Mr Timmins. There would have been no proper basis for the Commissioner to provide an adjournment to Ms Ary. 31Ms Ary complained that Tabbaa C had "rushed in decision making by saying 'I want to close this case'". Ms Ary misunderstood the Commissioner. Prior to commencing the arbitration Tabbaa C sought to explore the opportunity that might be available for further conciliation giving the respondent's willingness to participate in such proceedings. However, the Commissioner did not wish to get too far involved in the conciliation because she was obviously concerned objection might be taken to her conducting the arbitration and she did not "want to risk losing today", that is, the day the matter was listed for arbitration. 32The basis upon which the respondent decided to terminate Ms Ary's employment was an independent psychiatric assessment of Ms Ary by Dr Allnutt. He concluded Ms Ary was unable to perform the inherent requirements for the job due to a psychiatric disability. The applicant obtained her own report from Dr Vrjosseck regarding her psychiatric condition. That report was essentially consistent with, and broadly supportive of, the assessment of Dr Allnutt. Dr Vrjosseck confirmed that the conspiracy beliefs held by Ms Ary were of a delusional nature precipitated by a combination of events. However, as Tabbaa C observed at [50]: [50] Dr Vrjosseck found that the Applicant is currently functioning well and showed no signs of depression, psychosis or cognitive impairment. He held the belief that she was capable of resuming work for which she was trained. Nevertheless, it was not considered appropriate that she return to her previous environment with its accompanying stresses. 33Ms Ary obtained Dr Vrjosseck's report after the termination of her employment. In the light of the independent assessment of Dr Allnutt, Dr Vrjosseck's report was not a basis upon which the respondent would have been required to re-employ Ms Ary. 34In addition to the reasons for the termination of Ms Ary's employment I have also had regard to the steps taken by the respondent, prior to its decision to terminate the employment, to deal with Ms Ary's complaints. This was not a case where the respondent simply took the view that Ms Ary was a "mental case" and that the expedient solution was to sever the employment relationship. Ms Ary's complaints were investigated and found to be without substance on two occasions, Departmental officers met with Ms Ary on four occasions and she was offered assistance in accessing psychologists and psychiatrists through the Employee Assistance Program. 35In my opinion, Ms Ary does not have an arguable case on appeal.

Ary v Sydney South West Area Health District

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