Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Alan Thomas David & Ors

CATCHWORDS: Leave to Appeal and Appeal - Interlocutory decisions - procedural decision - exercise of discretion - Leave to Appeal refused - No order as to costs - Appeal dismissed

LEGISLATION CITED: Industrial Relations Act 1996

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Alan Thomas David & Ors [2006] NSWIRComm 206 CASES CITED: Direct Home Loan Corporation Pty Limited v Wiltshire (No 2) [2004] NSWIRComm 217 Knowles v Anglican Property Trust (No 2) (1999) 95 IR 380

LEGAL REPRESENTATIVES: Respondent: Solicitors: Mr D. Mahendra, Solicitor Messrs Sparke Helmore

• 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Matter No. IRC 3572 of 2006 ELKA SIMJANOVSKA AND ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES Application by Elka Simjanovska to extend time to appeal against a decision of amended notice of motion of Deputy President Sams given on 10.10.2006 in matter nos. IRC 4554 of 2005, IRC 2762 of 2006 and IRC 3138 of 2006

Matter No. IRC 3585 of 2006 ELKA SIMJANOVSKA AND ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES Application by Elka Simjanovska for leave to appeal and appeal against a decision of Deputy President Sams given on 10.11.2006 in matter nos. IRC 4554 of 2005, IRC 2762 of 2006 and IRC 3138 of 2006

History Matter No. IRC 3572 of 2006 1 On 30 November 2006, an application for an Extension of time to Appeal was filed by the appellant.

Matter No IRC 3585 of 2006 2 On 1 December 2006, the Application for Leave to Appeal and Appeal was filed relating to rulings made by Sams DP in the conduct of a number of proceedings brought by the appellant under s213 of the Industrial Relations Act 1996 (the Act) alleging victimisation by her employer, the Roads and Traffic Authority of New South Wales. 3 On 6 December 2006, in a Directions hearing before Walton J, Vice President the two matters were joined. His Honour gave directions for the filing of submissions to the appeal. He noted matters would be fixed for hearing in due course subject to any determination by a Full Bench to hear the question of leave separately. 4 An application to stay the substantive matters hearing before Sams DP was referred on 6 December 2006 by Walton J, Vice-President to Kavanagh J for hearing on 13 December 2006. The substantive proceedings were listed for hearing from 8 to 14 March 2007 before Sams DP. Her Honour made the following Orders. (1) The application for a Stay of the hearing of 8 to 14 March 2007 before Sams DP and the associated direction to file evidence by 5 January 2007 is denied. (2) The orders of the Commission for the preparation of the hearing are endorsed. (3) The hearing of these matters is confirmed for 8 to 14 March 2007. I so order. 5 On 16 February 2007, as they were joined, both Matter Nos 3585 and 3572 of 2006 were allocated to a Full Bench (Kavanagh and Staff JJ, McLeay C) for hearing of the Leave to Appeal and Appeal application. 6 On 2 March 2007, the Full Bench convened a further Directions Hearing. There was no appearance from the appellant. Submissions from both the appellant and the respondent had been filed in accordance with the directions of the Vice-President. However, the appellant in her reply to the respondent's submissions objected to the Leave to Appeal matter being heard separately as submitted by the respondent in their submissions. The appellant asked for an adjournment. 7 The Full Bench then issued the following Orders: 1. The appellant file and serve her submissions in reply to the respondent's submissions as to leave by 4pm on 16 March 2007. 2. The application for leave to appeal is stood over for mention before Kavanagh J on delegation from the Full Bench at 10am on Monday 19 March 2007. 3. The respondent's applications for costs is deferred until the Full Bench has dealt with the full appeal. 8 On 14 March 2007, the Full Bench received correspondence from the appellant requesting an extension of time for filing her reply to the respondent's submissions as to leave. She also sought an adjournment of the mention set down for 19 March 2007. 9 On 16 March 2007, the Full Bench issued a Statement granting the adjournment, and held: We note the Orders of Sams D.P. in matter Nos IRC 4554 of 2005; 2762; 3138 of 2006 dated 8 March 2007, which Orders effectively vacated the primary hearing on a consideration of a similar application brought by the appellant. . . .

While accepting the present application for an adjournment, in light of the medical report received, we are not prepared to allow the present unsatisfactory state of affairs in respect of this leave and appeal matter to continue. It is not in the interests of ensuring justice to both parties for the respondent to incur ongoing costs and time in preparing for the leave to appeal and appeal and the substantive proceedings, only to have them not pressed by the appellant at the last minute. This has also caused disruption to the Commission's case management.

We order the adjournment indefinitely of the leave to appeal and appeal proceedings until such time as the Full Bench of the Commission receives from the appellant's doctor a medical clearance and the appellant gives a written undertaking that she is willing and able to proceed with the leave to appeal submissions in reply and to have the leave to appeal application listed for hearing.

The practical consequence of this decision is that no further directions will be issued by the Full Bench in respect to this appeal or appeal matter until the appellant can comply with both the above conditions. 10 On 20 March 2008, correspondence was received from the respondent foreshadowing a Notice of Motion as to the status of the Application for Leave to Appeal and Appeal. The matter was relisted for a Directions Hearing before the Full Bench. 11 On 27 March 2008, the Full Bench set aside the Orders made on 16 March 2007 and made the following Orders: We have determined that we should proceed to hear the Appeals for the following reasons:

The proceedings before his Honour have not been stayed by the Full Bench.

If the Appeals are not heard and determined before the proceedings are finalised before his Honour, the Appeals will become redundant.

1. We set aside the Orders made by Full Bench on 16 March 2007. 2. We direct the appellant to file and serve any submissions in reply in respect of the appeal and in respect of the respondent's N/M filed today, by 12 noon 3 April 2008. 3. Appeal stood over for hearing 10am 4 April 2008. 4. Any application for an adjournment of these proceedings will only be considered if supported by medical evidence from a medical practitioner. 5. If the appellant intends to rely on this evidence, a copy of any medical certificate is to be filed and served on respondent by 4pm on 2 April 2008. 6. If the respondent wishes to cross examine the medical practitioner, it should give notice to the appellant that the medical practitioner is required to attend the Commission for cross examination at 10am on 4 April 2008. 12 On 2 April 2008, the appellant provided the Full Bench with a bundle of medical reports and requested: a) To set aside orders made by the Full Bench on 27 March 2008, and reinstate the decision of the Full Bench in matters IRC 3572 of 2006 and IRC 3585 of 2006, on 16 March 2007

b) To vary orders made by the Full Bench on 27 March 2008, and reinstate the decision of the Full Bench made on 16 March 2007, on condition that my medical condition and my ability to undertake such extensive proceedings be reviewed by the Commission after 31 December 2008, when I will be in a position to provide more detailed advice about my medical condition and after the completion of my surgeries. 13 In support of this application, the appellant provided a medical certificate and report with attachments dated 2 April 2008 from Dr B. Kuzmanovski who practices at the Family Medical Clinic Rockdale. 14 On 4 April 2008, the Full Bench convened the scheduled hearing. There was no appearance by or for the appellant. The appellant sent a facsimile transmission to the Full Bench on the morning of the hearing informing the Full Bench she was not attending the hearing due to her medical condition. 15 The respondent informed the Full Bench it had not received any medical certificates or reports and there had been no compliance from the appellant with the Orders of 27 March 2008. 16 Orders 4, 5 and 6 made by the Full Bench on 27 March 2008 dealt with the appellant bringing a medical-based application for an adjournment. Those orders were designed to enable such medical evidence to be considered. No arrangements have been made in that regard, leaving the evidence untested. 17 The Full Bench considered the medical evidence placed before it in support of the adjournment application. The Full Bench carefully perused the medical certificate and reports of Dr Kuzmanovski. In our view, the report was highly qualified and it is impossible for us to test the evidence set out in the report. By way of example, Dr Kuzmanovski said that: Ms Simjanovska has been cleared from her psychological injuries and she has been allowed to attend work on normal duties, but she has been advised not to have any excessive undertaking. In particular not anything related to her disputes with the RTA.

She is today with severe epigastric pain, and she has recurrence of her headache. A significant pain and slight enlargement on her right breast was detected as well as some lymph enlargements. It is not recommended that she participates in litigation in which she is self represented. 18 We note that throughout the long history of the proceedings before Sams DP and the Full Bench, Ms Simjanovska had continued to represent herself. 19 Dr Kuzmanovski goes on in his report to observe: Ms Simjanovska has been advised that she can attend a court planning meetings or write correspondences, however I strongly recommend that she is currently not involved in any litigation where she is self represented, which requires her to undertake a preparation of large documentary materials involving her long term disputes. . . . She reported that she has been directed to prepare a response and submissions related to more than 2500 pages of documentary material within approximately 8 working days, and to attend hearings before the Industrial Relations Commission of NSW during this time. I believe that she is not able to participate in such an excessive demand of her participation in that process. I believe that her health could significantly deteriorate under such excessive pressure. 20 The Full Bench was dealing with an interlocutory appeal and only whether leave to appeal should be granted. This was made clear to both parties at the directions hearing and subsequently. We expected the leave to appeal hearing to be of short duration and not involve a consideration of 2500 pages of documentary material. 21 Without hearing from Dr Kuzmanovski, we did not know if the appellant had outlined, in a true and proper context, the matters that are before the Full Bench. 22 Given the above circumstances, we rejected the application for an adjournment and proceeded to hear the application for Leave to Appeal. 23 The appellant in her submission as to Leave acknowledged the principles governing Leave to Appeal as recited in Knowles v Anglican Property Trust (No 2) (1999) 95 IR 380 (at 381-382) and submitted that Sams DP: failed to properly exercise the relevance of the evidence as requested in the summons to produce

which she asserts was needed to establish the jurisdiction required to determine the dispute. She submitted therefore the Commission: failed to act according to equity, good conscience and the substantive merits of the case. 24 Further, the appellant submitted the Appeal raises a substantial issue as to the operation of s210 of the Act; the protection of employees who assert victimisation; the public interest in having the application of s210 considered on Appeal. 25 In reply to the respondent's submissions, the appellant challenged generally the respondent's submissions which directed themselves to the question of Leave to Appeal and the procedural nature of the determinations of Sams DP. 26 Mr D. Mahendra, who appeared for the respondent, submitted that leave to appeal should be refused as the appeals did not raise matters of such importance as to warrant the granting of leave in the public interest (see s188(2) of the Act; Knowles v Anglican Property Trust (No 2) (1999) 95 IR 380 (at 381-382)). 27 Mr Mahendra submitted the principles as to interlocutory appeals are well settled in this Commission. Appeals from interlocutory decisions concerning a point of practice or procedure are to be deprecated and discouraged (see Caltex Petroleum Pty Limited & Ors v Harmer (1999) 92 IR 264).

Consideration 28 We find the rulings and decisions made by Sams DP as to joinder were procedural matters related to case management and the decisions relating to documents to be produced under Summonses for Production were clearly interlocutory decisions which did not dispose of the proceedings. As such, they are procedural in nature. 29 The legal principles dealing with Appeals from procedural and interlocutory matters are well established. The rationale for a reluctance of Appeal Courts to consider such appeals was cited in Caltex Petroleum from the judgment of Sir Frederick Jordan CJ in Re the Will of FB Gilbert (1946) 46 SR(NSW) 318 (at 323) as: ... I am of the opinion that ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of the first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in Chambers to a Court of Appeal. 30 The Full Bench of the Commission (Wright J, President, Walton J, Vice-President, Staff J) in adopting this principle in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Alan Thomas David & Ors [2006] NSWIRComm 206 said: 14 It is appropriate to set out the principles in respect of the availability of appeals to the Full Bench of this Court in respect of interlocutory applications. In Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 at 265, 266, the following statement of principle was set out: So far as we are aware, these proceedings are the first occasion on which this Court has had an opportunity to consider the principles applicable to appeals from interlocutory procedural decisions since the Industrial Relations Act 1996 (NSW) (the Act) came into force some three years ago. It is therefore appropriate for this Full Bench to state shortly the appropriate approach which should be adopted in relation to such appeals. The predecessors of this Court and Commission, in line with the approach of the ordinary courts, have generally deprecated and discouraged such interlocutory appeals: see, for example Re Social & Community Welfare Services (State) Award and Other Awards (1984) 9 IR 305; Parramatta City Council v Health and Building Surveyors Association (NSW) (1988) 26 IR 398 at 401-402; Re Laundry Employees (State) Award (No 2) (1993) 49 IR 91 at 103; Chamber of Manufactures (NSW) v Australian Chamber of Manufactures NSW Branch (1994) 56 IR 307 at 310-311. The approach in this jurisdiction has paralleled that of the ordinary courts which is set out in, for example, Re the Will of F B Gilbert (1946) 46 SR (NSW) 318 at 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399-400; Partnership Pacific Ltd v Killen (unreported, Court of Appeal, but noted in Ritchie's Supreme Court Procedure NSW, Vol 2, at paragraph 13013); Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 644; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4) (1986) 6 NSWLR 674 at 685; Bank of New Zealand v Spedley Securities Ltd (In Liq) (1992) 27 NSWLR 91 at 95. . . . 15 In National Australia Bank Ltd v Cassino (2002) 137 IR 1 at 8, the Full Bench stated after setting out the above principles: The approach in principle is indeed further emphasised in this jurisdiction by the Legislature including, in the 1996 legislation, s 191(3) which obliges the Full Bench to "follow the principles applying to appeals from discretionary decisions". The significance of this situation has been recently considered and, in the course of that consideration, emphasised in a number of recent Full Bench decisions. See, for example, Western Sydney Area Health Service v Gibson and Pacific Healthcare (Australia) Ltd v AHI Healthcare Systems Pty Limited [2001] NSWIRComm 297 and the references in these cases to the judgment of the Court of Appeal in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274. The significance of s 191(3) and those authorities is that interlocutory procedural motions invariably involve the exercise of judicial discretion and often depend essentially upon exercises of discretion. That is certainly the situation here. In addition, Peterson J's judgment was consistent with the longstanding approach of this Court and its predecessors which has always been to deal with procedural issues in accordance with "modern judicial practice", on a essentially pragmatic basis: see, for example, Hyde v Energy Australia (1999) 92 IR 409 at 423, Western Sydney Area Health Service v Gibson at [24] and the cases cited therein, and Hitchcock v CSR Limited [2002] NSWIRComm 170 at [7] to [8]. (See also Direct Home Loan Corporation Pty Limited v Wiltshire (No 2) [2004] NSWIRComm 217 at [10]-[11]). 31 It is, therefore, well established that Leave to Appeal will rarely be granted if the discretionary decision appealed against is of a procedural nature. The appellant makes applications to appeal determinations of Sams DP where a number of matters were joined and where Sams DP ordered the striking-out of parts of two Summonses for Production of documents. Such decisions, as we have already observed, are interlocutory involving the exercise of discretion. Without seeking to draw inferences, a consideration of the history of this matter indicates a propensity on behalf of the appellant not to proceed with her matters, at first instance and on appeal. This may result in the appeal never going forward or the substantive matter ever coming to trial. 32 It is to be observed that Sams DP, after a number of adjournments, has again listed the substantive applications for hearing in the near future.

Conclusion 33 Applying the above principles to the appeals before us, we have determined Leave to Appeal should be refused. We wish to emphasise that we have not arrived at this decision without having carefully considered the written submissions filed by Ms Simjanovska which we have taken into account. The decisions of the Deputy President were discretionary in nature, dealing with procedural and interlocutory matters and did not affect the substantive rights of the appellant. We cannot discern any errors of principle or law in the approach adopted by the Deputy President. 34 The respondent was given leave on 27 March 2007 to file in court a Notice of Motion seeking that these appeals be struck out for want of prosecution. The respondent foreshadowed that if Leave to Appeal was refused it would seek to withdraw the Notice of Motion. The respondent is granted leave to withdraw the Notice of Motion.

Costs 35 The respondent made an application for costs in accordance with s181(1) and (2) of the Act. Section 181(1) & (2) reads: 181 Costs (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (2) However, the Commission when it is not in Court Session may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or . . . (4) In this section, "costs" includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. 36 We are not persuaded the application for Leave to Appeal and Appeal was frivolous or vexatious nor was brought without reasonable cause.

Orders 37 The Commission orders: 1. Leave to Appeal is refused. 2. The Appeal is dismissed. 3. No order as to costs.

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