Beavan v Industrial Relations Secretary

Supreme Court of NSW|2015-10-20|Before: Walton J

BACKGROUND

The chronology of events leading to the hearing of the motion was as follows: 1. As previously noted, the notice of appeal was lodged on 2 July 2014. That lodgement was effected by the appellant's solicitor, Mr Grant Butterfield of Marsdens Law Group and was within the time prescribed for the bringing of such appeals: see s 100B(2) of the Act. 2. In accordance with Practice Note No. 23 ('the practice note') (the relevant parts of which will be set out later in this judgment), the matter was listed for conciliation before Tabbaa C on 13 August 2014. The Industrial Registrar issued directions to file a written case for conciliation by 6 August 2014 (it would appear that only the respondent filed such material albeit one day late). 3. A conciliation was conducted before Tabbaa C on 13 August 2014, with the appellant being represented by her solicitor and the respondent by counsel, Ms K A Edwards. 4. The matter was listed for conciliation and directions again on 19 August 2014 but that listing was vacated. The matter then came back before Tabbaa C on 26 August 2014 where again the appellant was represented by Mr Butterfield and the respondent by the same counsel. On that occasion Tabbaa C indicated the matter had not settled and made consent orders in preparation for hearing based upon draft orders provided by the respondent. Counsel for the respondent indicated the orders were derived from "the practice note" but stretch[ed] out to allow for further negotiations and counsel's availability. 5. The practice note provided that standard directions (known as 'the usual directions') issued, by virtue of the practice note, in the event of a failed conciliation, subject to any modification by a Member of the Commission. The orders made by the Commissioner on 26 August were plainly a modification of the usual orders required to be made in the case of a failed conciliation of proceedings brought under Pt 7 of Ch 2 of the Act so as to provide a greater time for parties to file material relevant to their cases including witness statements then permitted under the usual directions. The directions required the respondent to file and serve any material relevant to its case including written statements of evidence by 7 October 2014. The appellant was to file and serve written statements as to her intended evidence and other relevant documents by 11 November 2014. Material in reply was to be filed by 25 November 2014. The parties were to approach the Industrial Registry for hearing dates. 6. On 14 October 2014, the Deputy Industrial Registrar contacted Mr Nathan Cureton, solicitor for the respondent, as a consequence of the material required to be filed by the respondent not having been received by the Registry. The Deputy Industrial Registrar also sought available dates for a hearing, indicating she intended to list the matter in the new year for two days from February (the Deputy Industrial Registrar mentioned February 2014 but plainly intended February 2015). The Commission's file shows that there were no jointly available dates for the representatives of the parties in February but the dates were available in March and for part of April. It was no doubt the intention of the Industrial Registrar to list the matter for hearing in due course. However, no date was ultimately fixed for the hearing of the substantive matter. As mentioned below, the matter was listed before Deputy Industrial Registrar Hourigan on 18 March 2015 for mention. That was the first occasion the matter had been called before the Industrial Registrar. It was shortly thereafter listed for hearing of an application to dismiss for want of due despatch: the first occasion the matter was listed for hearing (for any purpose). 7. On the same day, that is 14 October, the respondent's solicitor communicated with the appellant's solicitor by email suggesting amended consent orders by which the respondent would file its evidence by 16 October 2014. The appellant would (by way of extension to the programme in its favour) file its evidence by 21 November with reply material being received by 25 November 2014 and the appellant's solicitor consented to the extension. (Some proposed consent orders reflecting this change to the programme were forwarded by the respondent's solicitor to the appellant's solicitor but were not executed. The amended orders were not filed.) The respondent's solicitor filed two statements of evidence on behalf of the respondent on 17 October 2014: Denis Aslanis and Lesley Jennings (with an accompanying exhibit). 8. The appellant had not filed and served any evidence before a further exchange between the legal representatives of the parties in the early New Year. 9. On 23 January 2015, Mr Butterfield contacted Mr Cureton by email indicating that he expected Mr Cureton had been attempting to contact him regarding his client's evidence. He advised that "there [had] been some unavoidable issues at our end" and indicated that proposed consent orders were attached. There was apparently some difficulty with those orders reaching the respondent and, in the result, Mr Cureton amended the earlier consent orders, signed them and forwarded them to the solicitor for the appellant. Those draft consent orders required the appellant to file and serve her material by 13 February 2015 and the respondent to file material in reply by 6 March 2015. Those draft orders were dated 4 February 2015. Mr Cureton sought that Mr Butterfield lodge the consent orders "with the IRC". 10. On 4 February 2015, Mr Butterfield advised Mr Cureton that his client had been "unwell" and "at this stage I do not envisage filing her statement by 13 February". He proposed draft consent orders by which the appellant would file her material by 27 February 2015 and reply material to be provided on 20 March 2015. Those orders were signed by the respondent (although apparently not until 27 February 2015) and forwarded to the appellant's solicitor that day with an email asking the question "Will we be getting the Appellant's evidence today?". That reply attracted a communication from Mr Butterfield on the same day, as follows: "We will need a further 14 days or so - 16 March 2015". Again, the consent orders were not filed in the Commission. 11. The respondent did not consent to the further extension of time sought by the appellant's solicitor. 12. The matter was listed before the Deputy Industrial Registrar on 18 March 2015 of her own initiative due to the failure of the appellant to comply with directions earlier issued in the proceedings. There were appearances on that date by Mr S Tully of counsel for the appellant and Ms Edwards for the respondent. The Deputy Industrial Registrar was advised that a notice of motion to strike out the proceedings would be filed by the respondent. Mr Tully said he had instructions to "re-establish the timetable". It was determined that the matter would be stood down in the list and the motion referred to a Member once filed. As earlier mentioned, the motion was filed on that same day.

The Impugned Decision

The Commissioner noted the matter had been listed on the Commission's own initiative and that neither the appellant nor the respondent brought the matter before the Commission prior to the matter being relisted.
The Commissioner considered that the onus for having the matter relisted, where there was non-compliance with orders, fell in practical terms upon the appellant because it was the appellant who had not complied with the orders. It was the defaulting party who had the obligation to first come before the Commission to "explain themselves and seek the indulgence of the Commission or the Court in an extension of time".
Notwithstanding the form of the motion, the Commissioner recognised the question before him was whether the appellant had prosecuted the proceedings "without due dispatch" and that the Commission may, in its discretion, order, in those circumstances, that the proceedings be dismissed. He described "dispatch" as "speed, alacrity, it is attending the proceedings with a necessary vigor".
The Commissioner stated that the principles surrounding the exercise of the Commission's discretion "in respect of applications of this kind have been adverted to most recently and effectively by the High Court" in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 ('Aon Risk Services'). He identified Aon Risk Services "set a new set of parameters for dealing with applications of this kind" and that the High Court had pointed to a number of relevant factors. Those factors were not confined to the conduct of the matter between the parties but to the "broader context in which applications of this kind must be considered". In that respect, the Commissioner identified "questions of the waste of public resources and delay and the strain on litigants should be taken into account and so should the potential for loss of public confidence in the legal system which arises when a court is seen to accede to applications made without adequate explanation or justification for delay".
The Commissioner considered that the High Court in Aon Risk Services had emphasised "that the Court or Commission has obligations not only to the parties before it but also to all other litigants" and "there is a need to do justice to all litigants before a court or commission". There was a particular need to emphasise this principle in this tribunal "which is, to be candid, under resourced, has insufficient Commissioners and judges to do work before it and in which people are waiting to have matters heard a longer time than the Act suggests that they ought do, the Act with its emphasis on expedition of proceedings". He continued that "it is in those circumstances that courts and commissions sometimes have to make orders which, as the High Court said in Aon Risk Services, may produce a sense of injustice in one party for the sake of doing justice to the opponent and to other litigants".
The Commissioner considered that costs could not remedy delay, as costs were not applicable to the proceedings and, more generally, costs were not "a basis upon which adjournment can be provided for the asking".
The Commissioner accepted that the respondent had acceded to a number of extensions of time to put on evidence "and in some sense, of course, those extensions cannot be held against the appellant because they were consented to". There had not been "a wanton and deliberate breach of directions".
Commissioner Newall found that, nonetheless, delay "as a whole goes to the Commission's obligations to itself, its own resources and to other parties". The parties cannot between themselves accede to delay which occasions difficulty in the conduct of the case or causes a waste of the Commission's resources and time.
The Commissioner gave "some weight" to prejudice to the respondent vis-á-vis the availability of the evidence of a principal witness.
In those circumstances, the party who has not complied with the orders needs to satisfy the Commission that there was a proper and adequate reason for delay.
The medical evidence called by the appellant did not provide such an explanation for delay. There was no indication by any medical practitioner that the illnesses referred to in the appellant's affidavit, namely bronchitis and dyspepsia had interfered with the appellant's capacity to instruct. Further, there was no incapacity "to deal with the case going forward".
It was accepted that the appellant's solicitors had given notice to the respondent that illness was a basis for delay. However, the illnesses suffered by the appellant did not appear, on their face, to be illnesses which would "prevent any kind of instruction being given to solicitors or counsel". There was no medical evidence to the contrary. Further, conferences with counsel had occurred during the period of time in which the appellant was certified as unwell.
The Commissioner stated he had formed "no view as to the merits of the proceedings". He indicated that he was "not obliged to do so and I [did] not". The opinion he had formed was based entirely on what had happened since August 2014 (the Commissioner identified there had been "long running proceedings in other jurisdictions but did not hold that in any way against the appellant" or "form any view about the way in which these proceedings might run based on those").
There was yet "no date set upon which the appellant's material might be put on", in circumstances where, even allowing for agreements reached between solicitors, there had been "several defaults".
The Commissioner observed "[a]nother doctor's appointment is planned for 24 March and the proposition is advanced by the appellant in an e-mail shown to the commission that another four weeks might do it; they are my words but that is the level of certainty which is advanced".
Overall, and despite "civilised discussions between solicitors", the Commission was not informed of adjustments or defaults to the programme, there had been multiple failures to produce evidence on time and failure to comply with orders "since August last year" and no proper and adequate reasons for the delay had been provided by the appellant in circumstances where orders made "in August last year have not yet been complied with". There was no proper basis upon which a view could be formed that the matter would be prosecuted with due dispatch if the motion were refused.
The Commissioner found that, in all the circumstances, this matter was not prosecuted with due dispatch and that the proper exercise of his discretion was to order that the proceedings be dismissed.

Appellant

Counsel for the appellant made oral and written submissions which, when taken together, may be summarised as follows: 1. In making the decision below, the Commissioner explicitly and implicitly adjudicated upon issues that required, for their determination, the identification of a relevant matter of law, namely, the nature of the jurisdiction and the questions which required resolution. The Commissioner's decisions as to those matters were incorrect as a matter of law and he consequently erred in his approach to the exercise of the discretion to dismiss a matter for want of due dispatch. 2. In the proceedings below, the Commissioner applied the judgment in Aon Risk Services, simpliciter. The Commissioner erred in purporting to apply the principles set out therein and by effectively asking the following incorrect questions: 1. Whether the Commission's discretion was to be exercised in the same manner as Aon Risk Services; 2. Whether the Commission must be satisfied that the matters in Aon Risk Services were satisfied; and 3. Whether the appellant needed to satisfy the Commission that the proceedings would be exercised with due dispatch in the future. 1. In any event, the appellant submitted that Aon Risk Services was not directly relevant to the proceedings below (even though some factors in Aon Risk Services may be relevant). That distinction, which the Commissioner did not identify, was predicated upon the following: 1. Unlike Aon Risk Services, this matter was not listed for hearing. The impact on the other parties is not relevant here and "there simply was no prejudice to other litigants or to the Court"; 2. The matter relates to dismissing the proceedings for want of dispatch which was not an issue addressed in Aon Risk Services; and 3. The proceedings in Aon Risk Services concerned an adjournment application to amend pleadings, which substantially altered the claims against Aon, whereas the matter was finally disposed of in the proceedings below. 1. Such differences were articulated in Pacanowski v Simon Wakerman & Associates [2009] NSWCA 402 ('Pacanowski') where the New South Wales Court of Appeal identified that Aon Risk Services was not directly relevant to dismissal proceedings. Those differences are matters that the Commissioner should have taken into account, but it did not. 2. As to the second ground of the appeal, it was submitted the Commissioner applied his own test to the resolution of the motion. 3. The starting point for the Commissioner's consideration should not have been Aon Risk Services, but the relevant legislation, namely, the CP Act and, to a lesser extent, the Act. 4. In light of the introduction of ss 56 to 60 of the CP Act, the authorities make clear that the exercise of the power under r 12.7 involves a balancing exercise, in the course of which a variety of factors may be considered: see Hoser v Hartcher [1999] NSWSC 527 ('Hoser') and Dank v Cronulla Sutherland District Rugby League Football Club Limited [2014] NSWCA 288 at [102] and [103] ('Dank'). The Commissioner did not undertake a balancing exercise of the relevant factors. In fact, the Commissioner applied his own test, rather than those outlined in Pacanowski or Dank. 5. The Commissioner should have considered "those matters largely set out in Hoser at [25 (6.)]". However, the appellant accepted that the factors identified in Hoser were not the only factors that must be taken into account since the decision in Aon Risk Services. 1. The balancing of all relevant factors is necessary in order to do justice between the parties. After balancing the prejudice to each party, the Commission must be satisfied that justice demands the application be dismissed. The Commissioner erred in failing to undertake that process of reasoning. 2. The appellant contended that "only those matters which were adverse to the appellant" were considered by the Commissioner. In particular, the Commissioner's consideration was erroneous in the following manner: 1. Unlike most matters that may be dealt with under r 12.7 of the UCPR, when the proceedings below were dismissed it became impossible for the appellant to commence proceedings again because of the statutory time limits relating to public sector disciplinary appeals. The Commissioner failed to consider that, by the dismissal of the appellant, she was deprived of the opportunity to recommence the proceedings and thereby present the merits of her case. The Commissioner failed to take into account the prejudice to the appellant in this respect; 2. In written submissions, it was contended there "simply was no prejudice to other litigants or to the Court": see Pacanowski at [13] to [15]. In oral submissions, it was put that any prejudice was "at best" minor. The fact that an individual may, at some stage in the future, not be working for the respondent should not represent a significant factor. Any suggestion of presumptive prejudice by the respondent was "mere speculation". There was no prejudice to other litigants. The matter had not been set down for hearing and dates were lost; and 3. It is not a relevant factor in the balancing exercise that the appellant failed to inform the Commission as to the reasons for the delay. 1. It is conceded that the appellant did not advance argument as to the proper balancing exercise below, however, she did not know the Commissioner's reasoning process until the impugned decision was made (without the requisite balancing exercise). 2. It is not surprising that the appellant did not give evidence as to when the matter might progress given her medical condition. In any event, a lack of evidence in that respect did not form part of the Commissioner's decision. 3. The Commission should grant the appeal and quash the decision and the orders of the Commissioner below.

Respondent

Counsel for the respondent made oral and written submissions which, when taken together, may be summarised as follows: 1. The appeal must fail as the grounds pleaded do not amount to an error of law. 2. The Commissioner was entirely correct in having regard to Aon Risk Services in determining how he would exercise the discretion under r 12.7. He held that the discretion to dismiss proceedings under r 12.7 of the UCPR was of a similar kind to that exercised in relation to the discretion to provide leave (or not) to amend pleadings where the objective of the rules is to provide (in that case) a "just resolution of real issues in proceedings and timely disposal of proceedings at an affordable cost". 3. The significance of Aon Risk Services was that it changed the framework of how discretions are to be exercised. The principle arising from Aon Risk Services was not a specific principle to be applied when amendments may be entertained, although that was the practical outcome of the case. It was that discretions authorised under the rules of a court all require proper regard to be had to the general rules or legislation that are "plainly intended to guide the exercise of the particular discretion": at [72] (per Gummow, Hayne, Crennan, Kiefel and Bell JJ - 'the plurality') (although it may be noted that the Court was there referring specifically to r 21 of the Court Procedure Rules 2006 (ACT) ('the ACT Rules') under consideration in that matter). 4. The Commissioner was not in error in having regard to the principles in Aon Risk Services insofar as those principles provide authority that, in exercising any of the discretions under the UCPR, regard ought to be had to s 56 of the CP Act (which is applicable to the Commission). 5. In Bi v Mourad [2010] NSWCA 17 ('Mourad'), Young J (with whom Allsop P and Sackville AJA agreed at [37] and [46] respectively) stated Hoser was affected by Aon Risk Services (at [28]) (and see Allsop P (at [49])). In that sense, the context of the balancing exercise in Hoser was amended by the decision in Aon Risk Services. Thus, while Hoser is still a valuable guide it would be wrong to treat it as the only answer in cases such as the present, because it must be read in the context of the different facts and circumstances of each case and in the context of general overarching obligations such as those set out in s 56 of the CP Act or r 2.1 of the UCPR. 6. As to the appellant's contention that the absence of a hearing date meant no prejudice to the other litigants or the Court, the appellant relied upon the judgment of Allsop P in Mourad at [47] and [48]. 7. As such, the Commissioner was not in error to have regard to the principles in Aon Risk Services insofar as those principles provide authority for the fact that in exercising any of the discretions either under the UCPR or IRC Rules 2009 regard ought to be had to s 56 of the CP Act. 8. The rules which are relevant in the present case are not dissimilar to r 21 of the ACT Rules. The respondent relied, in that respect, upon the judgment of the plurality in Aon Risk Services (at [89] and [90]) where reliance was placed on a particular rule, r 502(1), and a general rule, r 21. Both rules express that the objectives of the relevant section "are to be sought" in the exercise of the discretion. 9. The appellant essentially seeks to re-plead her case below in circumstances where she did not place all the evidence before the Commissioner in those proceedings. The matter is, in that sense, analogous to Aon Risk Services. As such, the Commissioner was correct to have regard to that case. Further, the Commissioner was required to adjudicate upon not only an application to dismiss for want of due dispatch, but also on an adjournment as sought by the appellant's solicitor, the latter being the same issue that concerned the High Court in Aon Risk Services. 10. The appellant should not be permitted to present different contentions on appeal to those advanced below. 11. The appellant was correct to contend that, upon the authority in Hoser (at [20] to [30]), the Commissioner was required to balance the prejudice between the respective parties by making or not making an order. However, the appellant did not identify the other factors that she asserted should have been balanced. That deficiency arose because the decision of the Commissioner "reflects exactly the evidence that was available on the day and the submissions that were made on the day". The Commissioner was only able to undertake that balancing exercise about matters of which he had received evidence or had been the subject of submissions that had been made at the hearing of the motion. 12. The Commissioner's consideration on the following matters was correct given the evidence before him: 1. The Commissioner properly took into account the delay between the commencement of the action by the appellant and lack of steps being taken to secure progress in the proceedings; 2. The Commissioner took into account the explanation offered by the appellant for the delay in the proceedings as he was required to do by authority. The appellant's evidence, in that respect, was that she was too unwell to prosecute the proceedings; 3. The onus in the proceedings below fell on the respondent to establish the hardship upon which reliance was placed. The respondent identified delay, lack of explanation for the delay and prejudice as the relevant factors to the respondent; 4. As to the prejudice to the respondent occasioned by the retirement of Mr Aslanis, he could not necessarily be compelled to provide further evidence and the respondent would be required to bring someone else 'up to speed' on the proceedings which would incur additional costs; 5. There was no evidence of prejudice to the appellant before the Commissioner, save for the fact that she would not be able to bring a public sector disciplinary appeal under the IR Act if he dismissed the proceedings for want of dispatch. Whilst that prejudice was not raised by the appellant before the Commissioner, he would no doubt have been aware of the statutory time limit to such a claim; 6. The appellant's prospects of success were also a relevant factor (albeit one which was not predominantly relied upon by the respondent); 7. The Commissioner was correct to find that the appellant ought to have ensured that all of the relevant evidence concerning the motion was before him; 8. There was no adequate explanation as to why that evidence or any further evidence had not occurred before the date of hearing in that case, particularly when the appellant had been given every opportunity to advance her case (including, in effect, evidence being submitted from the bar table); and 9. Following Pacanowski, both actual prejudice and presumptive prejudice need to be taken into account (with presumptive prejudice being a much lower hurdle). The retirement of Mr Aslanis accords with that point. In this matter, the respondent put on evidence of actual prejudice and the Commissioner correctly gave weight to the same. 1. The Commissioner also correctly followed the approach taken by McCallum J in Al-Shennag v Woodcock [2013] NSWSC 696 ('Al-Shennag') (in which her Honour applied Hoser and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 ('Micallef')). Particular emphasis was placed on the following passages: 1. The respondent noted two parts of [64] of Al-Shennag, which recorded the summary of the respondent in that case of the principles in Micallef. Those sections were as follows: 64 (c) a plaintiff who enlists the judicial arm of the State by invoking legal process and persistently fails to comply with the conditions laid down may be said to abuse the process invoked, and this can constitute contumelious conduct in the absence of an explanation: Micallef at [55] … (e) Rule 12.7 of the UCPR (the equivalent provision to that considered in Micallef) contemplates the possible termination of a case without determination of an issue between the parties on the merits. Such termination is not necessarily unreasonable or unjust: Micallef at [63]-[64], [85]. 1. Her Honour considered the prospects of the future prosecution of the matter (at [106]): In my assessment, the history of the proceedings set out above establishes not only that Mr Al-Shennag has failed to prosecute his action with due despatch but that he is incapable of doing so. 1. Al-Shennag established that the relevant question to be asked was "what is the likelihood of constructive steps being taken in the case?", rather than merely the likelihood of any activity which would not necessarily move the litigation forward. Her Honour stated (at [110] and [111]): 110 The present case is unusual in that the plaintiff has not been dilatory. However, the discretion conferred by the rule is not confined to cases of delay caused by inaction. The prejudice faced by Mr Woodcock is that he must remain active in litigation which is slow to be brought to finality, not for want of any activity on the part of Mr Al-Shennag, but for want of any constructive activity. The prejudice of being required to face Mr Al-Shennag's numerous specious claims and allegations is manifest. As noted in Micallef, the rule contemplates the possible termination of a case without determination of an issue between the parties. 111 In the present case, there is a more compelling reason for taking that course than in the case of mere dilatoriness. In my view, there is a substantial risk that, even assuming the plaintiff is successful, the costs of the action have already become disproportionate to any award of damages Mr Al-Shennag may receive. The claim for economic loss is substantial but most probably ambitious. Leaving that part of the claim aside, and for present purposes disregarding the defences, the cost of the ill-conceived applications Mr Al-Shennag has lost along the way is not warranted by any likely award of general damages for defamation and thereby offends the proportionality of costs principle enshrined in s 60 of the Civil Procedure Act. 1. The Commissioner in this case effectively came to the same conclusion, namely, "that in the absence of evidence as to when the Applicant could in fact comply he was not prepared to allow the case to continue" as, even on the applicant's own evidence, "there was no guarantee that productive steps would be taken at any time in the future". Thus, the proper application of the authority in Al-Shennag was reflected in the Commissioner's decision. 2. Leave is not required to bring the appeal but, if it is found that it is, then it should not be granted.

Relevant Legislation and delegated legislation

Sections 56 to 59 of the CP Act are in the following terms: 56 Overriding purpose (cf SCR Part 1, rule 3)(1) The overriding purpose of this Act and of rules of court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (3A) A party to a civil dispute or civil proceedings is under a duty to take reasonable steps to resolve or narrow the issues in dispute in accordance with the provisions of Part 2A (if any) that are applicable to the dispute or proceedings in a way that is consistent with the overriding purpose. (4) Each of the following persons must not, by their conduct, cause a party to a civil dispute or civil proceedings to be put in breach of a duty identified in subsection (3) or (3A): (a) any solicitor or barrister representing the party in the dispute or proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3), (3A) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a relevant interest in civil proceedings if the person: (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings. Note. Examples of persons who may have a relevant interest are insurers and persons who fund litigation. (7) In this section: party to a civil dispute means a person who is involved in the dispute. 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Courts to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of the court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 59 Elimination of delay (cf Western Australia Supreme Court Rules, Order 1, rule 4A) In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.
Section 91 of the CP Act is as follows: 91 Effect of dismissal of proceedings (cf SCR Part 40, rule 8) (1) Dismissal of: (a) any proceedings, either generally or in relation to any cause of action, or (b) the whole or any part of a claim for relief in any proceedings, does not, subject to the terms on which any order for dismissal was made, prevent the plaintiff from bringing fresh proceedings or claiming the same relief in fresh proceedings. (2) Despite subsection (1), if, following a determination on the merits in any proceedings, the court dismisses the proceedings, or any claim for relief in the proceedings,, the plaintiff is not entitled to claim any relief in respect of the same cause of action in any subsequent proceedings commenced in that or any other court.
Section 98(1) of the Act provides: 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer.
Sections 100A, 100B(2) and 100C(2) of the Act provide: 100A Notice of appeal A public sector employee may make an appeal by lodging with the Industrial Registrar a notice of appeal in the approved form. 100B Time for lodging appeal (2) Notice of a disciplinary appeal must be lodged within 28 days after the public sector employee is notified of the decision against which the appeal is to be made. 100C Decisions with respect to appeals (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit.
Section 197B provides: Appeals on questions of law in relation to public sector promotional and disciplinary matters (1) A party to proceedings under Part 7 of Chapter 2 may, subject to this Part, appeal to the Commission in Court Session against any decision of the Commission in the proceedings on a question of law. (2) On an appeal under this section, the Commission in Court Session may: (a) remit the matter to the Commission for determination in accordance with the decision of the Commission in Court Session, or (b) make such other order in relation to the appeal as seems fit.
Section 185(1) and (4) of the Act provides: (1) Rules of the Commission may be made for or with respect to any matter that by this or any other Act is required or permitted to be prescribed by rules of the Commission or that is necessary or convenient to be prescribed in relation to the practice and procedure of the Commission under this or any other Act. (4) This section extends to the making of rules relating to the practice and procedure (and other matters) relating to promotion appeals and disciplinary appeals under the Transport Appeal Boards Act 1980.
Finally, s 185A of the Act provides that the President may issue practice notes. The provision is in the following terms: Practice notes (1) Subject to rules of the Commission, the President may issue practice notes with respect to any matter for which rules may be made. Note : The power to make rules under section 185 (4) enables the President to issue practice notes under this section with respect to promotion appeals and disciplinary appeals under the Transport Appeal Boards Act 1980. (2) A practice note must be published in the Gazette. (3) Sections 40 and 41 of the Interpretation Act 1987 apply to a practice note in the same way as they apply to a statutory rule.
The practice note was issued by the then President, Justice Boland on 30 June 2010 and published in the NSW Government on 6 August 2010 (Gazette No. 99 at 3765). The scope and purpose of the practice note appears in the preamble (cll 1 to 3) in the following terms: 1. The Practice Note applies to proceedings before the Commission under Part 7, Chapter 2 of the Industrial Relations Act 1996. 2. This Practice Note shall come into force on 1 July 2010. 3. The purpose of this Practice Note is to facilitate the resolution of public sector promotion and disciplinary appeal matters before the Commission by ensuring that such proceedings are conducted in an efficient and expeditious manner and that all those who appear before the Commission do all they can to facilitate the just, quick and cost effective disposal of proceedings before the Commission.
With respect to disciplinary appeals, the provisions of cll 7, 11, 12 and 14 of the practice note are relevant and appear below: 7. Procedure generally 7.1 The hearing of a disciplinary appeal is to be formal. 7.2 A person who is entitled to be present at a formal hearing of the Commission is: (a) the appellant whose appeal is being heard (b) the employer, either in person or by their nominee and is entitled to representation in accordance with Section 166 of the Industrial Relations Act 1996. 7.3 In relation to the production of documents or the attendance of witnesses before the Commission the provisions of Section 165 of the Industrial Relations Act 1996 and Part 33 of the Uniform Civil Procedure Rules 2005 apply. 7.4 A formal hearing of the Commission is to be recorded. 7.5 In accordance with section 100G(2) of the Industrial Relations Act 1996 the employer's case is to be presented first. 7.6 Except as may be otherwise determined by the presiding member, the documentary material provided by the parties will be examined by the Commission prior to the hearing and admitted into evidence at the commencement of the hearing. 11. Listed for Hearing 11.1 When conciliation before the Commission is unsuccessful, the usual directions in Paragraph 12 of this Practice Note shall operate unless, after application by a party to the appeal, the Commission considers that the "usual directions" should be modified or alternative directions made. 11.2 The Commission shall also ascertain a reasonable estimate of the time required for the hearing of the appeal, specify in the Commission's opinion the time required for hearing and make any other appropriate directions having regard to paragraphs 12 and 13 of this Practice Note. 11.3 The Commission shall, forthwith, refer the parties to the List Office of the Industrial Registry for the purpose of obtaining a hearing date(s) in accordance with the Commission's opinion of the time required for hearing and directions which are made. 12. Usual Directions For the purpose of this Practice Note "usual directions" shall mean directions in the following terms or to the following effect:- 12.1 All evidence shall be in the form of signed written statements. 12.2 The respondent shall file and serve any material relevant to the employer's case (in addition to that previously served on the appellant pursuant to clause 8.2) upon which they will seek to rely within 21 days. Where the employer has not previously filed the Investigation Report that should comprise part of the additional documentation filed by the employer. The respondent's case shall include all signed written statements (typed with numbered paragraphs and pages) of the intended evidence of each witness upon which they rely. 12.3 The appellant shall file and serve signed written statements (typed with numbered paragraphs and pages) of the intended evidence of each witness together with any other relevant documentation within 21 days of the date fixed for the filing and service of the respondent's documents. 12.4 The respondent shall file and serve any reply to the appellant's documents within 7 days of the date fixed for the filing and service of the appellant's documents. 12.5 The parties shall include in or with their written witness statements all matters and documents upon which they rely or they allege are relevant to the proceedings. 12.6 Parties shall file and serve at the same time as they file their written statements and any other relevant documentation - a short summary of their case. 12.7 Without leave of the Commission, written statements and other documentation filed and served later than the time specified by the Commission in its directions may not be relied upon by the party. 12.8 At the conclusion of any failed conciliation, the Commission shall determine any issues of leave having regard to the provisions of Part 7.3 of the Uniform Civil Procedure Rules2005 (Issue of summons in certain circumstances requires leave) and make such directions as are necessary in that regard. 12.9 Summonses for production of documents may be made returnable before the Registrar upon any date that the Registrar conducts a list. Where orders are sought other than for photocopy access for both parties or if a claim for privilege or the like is made, those matters will be referred by the Registrar to the Commission to be dealt with on an interlocutory basis. Under these arrangements summonses will be returnable before the Registrar, not the Commission. 12.10 If, in the opinion of the Commission, the appeal is a matter that requires attendance by a person with specialised knowledge of issues relevant to the disciplinary appeal, make such directions as are necessary in that respect or, alternatively, apply such provisions of Practice Note 21as may be appropriate to the proceedings. 14.Compliance with Directions 14.1 Any directions made under paragraphs 5,8,12 & 13 of this Practice Note must be complied with and will apply unless: (a) an application is made after the completion of conciliation and prior to the hearing; (b) where applicable, the direction is varied during the course of the hearing of the matter; (c) any application to vary directions after the conciliation conference must be made as soon as possible, in writing and contain full supporting grounds (unless made during the course of the hearing of the matter).

Decision on a Question of Law : s 197B(1)

Both parties accepted that the applicable authority as to the meaning of a "decision on a question of law" was Schoeman. It is convenient to extract the relevant passages of that decision (at [53], [54], [56] and [60]): 53 The expression 'decision on a question of law' governs the scope of the appeal, confining, under both statutes, an appeal to a court against the decision of a tribunal on a question of law. That expression, when used s 54 of the GREAT Act, has received considerable judicial consideration, which, in my view, is apposite in the present case. Significant amongst those authorities are: Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720 ('Histon'); Murray; Clisdell v Commissioner of Police (1993) 31 NSWLR 555 ('Clisdell'); Commissioner of Police v Donlan and Hanson [1995] NSWCA 468 ('Donlan') and Lambert. The most recent of those authorities is the judgment in Lambert, upon which the appellant substantially relied in these proceedings. Both the judgments of Hodgson and Basten JJA in that matter deal with the scope of the statutory appeal under s 54 of the GREAT Act (Tobias JA generally agreed with both judgments in this respect). 54 Hodgson JA relevantly stated, at [24] to [28]: … 28 In my opinion, there is here a challenge to a decision on a question of law. It is not necessary that the question of law be explicitly stated and decided by the Tribunal. It is sufficient if a decision of the Tribunal is such that a resolution of a question of law is manifested by it: see Scicluna v New South Wales Land and Housing Corporation (2008) 72 NSWLR 674 at 676 [3]-[4], and Douglas v New South Wales Land and Housing Corporation [2008] NSWCA 315 at [17]-[18]. Here, the Tribunal's identification (at [36]) of mitigating circumstances manifested a resolution of the question of law whether such circumstances were relevant to the decision it should make in discharge of its jurisdiction. … 56 After considering Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354 at 359 and Wijesuriya v The Director-General of the Department of Conservation and Land Management (1994) 54 IR 384 ('Wijesuriya'), his Honour continued his analysis (at [68] to [75]) as follows: … 71 It seems well-established that this approach is the appropriate approach to be adopted in respect of the appeal available under s 54. That approach is relevant to the determination of the present appeal. The issue raised during argument was whether questions as to errors with respect to relevant and irrelevant considerations fell within the terms of the statutory appeal. Because such questions involve assessment of the proper scope of the Tribunal's power and jurisdiction, there is an implicit decision on a question of law with respect to any consideration which is deemed relevant or irrelevant. Such a conclusion involves the view that a consideration is mandatory (relevant) or prohibited (irrelevant) as a matter of law. It follows that it was not necessary for the Director-General to invoke the judicial review jurisdiction of this Court in order to present such arguments. … 60 The following propositions may be distilled from these authorities: (1) A 'decision', in this sense, is not limited to the final or operative order of a decisionmaker. Any decision that is a decision on a question of law, including an opinion of the decisionmaker on a question of law upon which its action or ultimate decision is based, may constitute a decision on a question of law; (2) The 'decision' on the question of law must be identified with some precision by the appellant in order to invoke the jurisdiction of the appellate court. It is not essential, however, that the decision be identified in such terms by the decisionmaker; (3) In general terms, therefore, an appealable decision on a question of law may be found where the decisionmaker has reached a conclusion with respect to a matter that required, for its determination, the identification of a relevant matter of law and an error is alleged with respect to that matter of law; (4) A decision on a question of law will be manifested where the decisionmaker has posed for themselves the wrong question at law; (5) A decision on a question of law will be manifested where the decisionmaker has failed to take into account relevant considerations or has given weight to irrelevant considerations because such a determination necessitates the formation of a view as to whether a consideration is mandatory (relevant) or prohibited (irrelevant) as a matter of law.
The respondent accepted, correctly in my view, that the impugned aspects of the decision of the Commissioner constituted decisions on the question of law. It was not necessary for the question of law to be explicitly stated by the Commissioner as it is sufficient if the decision is such that a resolution of a question of law is manifested by it (although in this case the Commissioner expressly stated a view regarding Aon Risk Services). The appellant identified conclusions reached by the Tribunal below with respect to some issues which required for their determination the identification of a relevant matter of law. First, by the reliance on an application of Aon Risk Services, it was said the Commissioner posed the wrong question (the attention should instead have been directed to the operation of the CP Act and UCPR and the balancing of considerations) or misapplied Aon Risk Services. Secondly the Commissioner failed, it was said, to undertake the balancing exercise required to be undertaken under r 12.7 (and s 56 of the CP Act) and, in consequence, failed to have regard to relevant considerations arising therefrom (additionally it was contended the Commissioner took into account an irrelevant factor).

RELEVANT PRINCIPLES : RULE 12.7 UCPR

In Nandini Fonseka v Epic Hotels Pty Limited [2008] NSWIRComm 79 ('Epic Hotels'), Boland J (then President) considered an application to dismiss proceedings brought under s 106 of the Act pursuant to r 146 of the IRC Rules 1996.
His Honour summarised the approach which had been adopted in this Court to strike out applications in the following passages of his judgment at [12] and [13]: 12 In applying r 146 the Court has applied the principles developed in the Supreme Court (see Koprivnjak and Others v Body Corporate Services (NSW) Pty Limited (1999) 87 IR 49; Piriz v AAPT Limited [2005] NSWIRComm 374 and Hakim and Hakcom Investments Pty Ltd & anor [2004] NSWIRComm 405). These principles were summarised by Simpson J in Raymond Hoser v Christopher Hartcher [1999] NSWSC 527, which are set out in the judgment of Staff J in Hakim at [24]. 13 As Simpson J noted in Hoser, the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 (Court of Appeal); Razvan v Berechet (Unreported, New South Wales Court of Appeal, Kirby P, Samuels JA, Meagher JA, 23 February 1990); Enn Vilo v John Fairfax & Sons Limited & Anor (Unreported, Supreme Court of New South Wales, Sperling J, 17 November 1995). And as Kirby P noted in Razvan, the discretion to strike out for want of prosecution should be exercised only in a clear case where it is manifestly warranted.
In the course of applying those principles, it might be noted that his Honour gave some consideration to the applicant's prospects for success, although his assessment was confined to whether the claim appeared to be "regular on its face" and disclosed "a cause of action" at [15].
The judgment in Epic Hotels did not give separate consideration to the operation of s 56 of the CP Act (which would have applied to the proceedings at that time). However, the matter was determined under r 146 of the IRC Rules 1996. His Honour, following earlier judgments of the Industrial Court, expressed the view that the principles stated by Simpson J in Hoser would be applied with respect to applications to dismiss for want of prosecution under that rule. That broad approach, as I will discuss below, is, subject to certain caveats mentioned in later judgments in the New South Wales Court of Appeal, applicable to proceedings brought in this Court pursuant to r 12.7 of the UCPR.
Rule 12.7 of the UCPR empowers the Commission (both in its discharge of judicial and arbitral functions) to dismiss proceedings or to make such other orders as the Commission sees fit "[i]f a plaintiff does not prosecute the proceedings with due dispatch": State of New South Wales v Plaintiff A at [14] (per Basten JA).
Recently, the New South Wales Court of Appeal in Dank gave consideration to the operation of r 12.7. That pronouncement, in my view, is binding on this Court (and, by that conclusion, the Commission). Ward JA at [101] to [103] (with whom Emmett JA and Gleeson JA agreed), made the following statements of principle with respect to the operation of r 12.7: 101 The submission that there was an intentional and contumelious default on the part of Dr Dank echoes the statement in Birkett v James [1978] AC 297 at 318 to the effect that the power to dismiss proceedings for want of prosecution should be exercised only in such a case or where there has been inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible or of serious prejudice to the defendant. 102 Having regard to the introduction of ss 56-60 of the Civil Procedure Act, it has been suggested that the above statement of principle must be seen as having been modified (see for example State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17] per Basten JA; Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 at [52] per Barrett JA). 103 The authorities make clear that what is involved in the exercise of the power under rule 12.7 is a balancing exercise, in the course of which a variety of factors may be considered (see, for example, Hoser v Hartcher [1999] NSWSC 527).
Various statements have been made by the New South Wales Court of Appeal regarding the appropriate limits regarding the principles in Hoser, particularly in the light of that judgment being delivered before the enactment of the CP Act and the High Court judgment in Aon Risk Services. Thus, in Mourad (which concerned an application for leave to appeal from a decision of the Judicial Registrar of the District Court dismissing proceedings for want of prosecution), Young JA (at [28]), stated as follows: Mr Jackson also notes that the Judicial Registrar relied on a decision of Simpson J in Hoser v Hartcher [1999] NSWSC 527 particularly paragraph 25. In that case, Simpson J set out a number of relevant factors to be considered in this particular case. Although that is a 1999 decision, before the Civil Procedure Act 2005, and before the recent decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, it is still a valuable guide to judges, but it would be wrong to treat Hoser as if it was statute and it must always be remembered that each case has different facts and circumstances. I certainly do not think the Judicial Registrar departed at all from the spirit of Hoser as far as it is still applicable.
Sackville JA agreed with Young JA's judgment but made the following further observation at [41]: The Judicial Registrar stated the principles governing the application in terms which recognise that the ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed. On one view, the statement of principle derived from the judgment of Simpson J in Hoser v Hartcher [1999] NSWSC 527 may be somewhat too generous to the claimants: cf Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230; Aon Risk Services Pty Limited v Australia National University [2009] HCA 27, 239 CLR 175; Civil Procedure Act, ss 56-60. In any event, her Honour's statement of the relevant principles reveals no error.
Similarly, Allsop P in Mourad stated (at [49]): In particular, I would like to add that careful attention to the Civil Procedure Act and ss 56-60 is what is required in each case. While I in no way criticise the terms of Hoser v Hartcher as laid down at the time that decision was made and without wishing to be critical in any way of it, I would say that the surest guide to be employed in any exercise of the discretion of this kind is a careful attention to the terms of the Civil Procedure Act, in particular ss 56-60.
The statement of principles from the judgment of Simpson J in Hoser are primarily to be found in [19] to [30] of that judgment. For the purposes of this judgment it is useful to set them out in full: 19 It seems to me that the following principles are relevant to the exercise of the discretion to strike out for want of prosecution. The list is not intended to be exhaustive: 20 (1.) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 F (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited, unreported, 19 November 1995, per Sperling J; 21 (2.) the discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: Stollznow v Calvert at 751 D; 22 (3.) any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J; 23 (4.) personal blamelessness on the part of a plaintiff(as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73. 24 (5.) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant's case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff's earlier inactivity: Calvert v Stollznow, 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, para 13, 022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestley JA; 25 (6.) delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor: Calvert v Stollznow, per Cross J; Burke v TCN. But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings, and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant's capacity properly to defend the plaintiff's claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example, at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time; 26 (7) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise; 27 (8) prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay; 28 (9) what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay: McBride v ABC, unreported, 6 November 1998, per Levine J; 29 (10) the plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out: Razvan, per Kirby P; 30 (11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice.
Some further observations may be made about delay and prejudice.
Pacanowski concerned an application for leave to appeal to the New South Wales Court of Appeal from an order of the Judicial Registrar of the District Court of New South Wales dismissing proceedings instituted by the applicants pursuant to r 12.7. Basten JA discussed the relationship between delay and prejudice and, in the course of doing so, considered the consequences of prejudice. That passage from the judgment is as follows at [27]: It may also be noted that Simpson J distinguished between delay which had occurred between the date on which the cause of action accrued and the commencement of proceedings and delay thereafter. The former was identified as a relevant factor, but the onus was, in either period, on the defendants to establish prejudice. Delay could clearly give rise to prejudice and the delay between the date after which the proceedings were commenced and the date on which the application was being considered was also a highly relevant factor to be taken into account. The consequences of delay have been considered more fully in Aon Risk Services, to which the presiding Judge has referred (at [14] above), particularly at [111]-[114] in the joint judgment. Those matters should all be assessed and taken into account in the circumstances of a particular case. It is not necessarily a basis for challenging the decision to dismiss a proceeding that there are aspects of particular guidelines as formulated in another case which have not been adequately considered.
Tobias JA in Pacanowski discussed the notion of prejudice in the seventh principle as stated by Simpson J in Hoser. By reliance on Aon Risk Services (which his Honour said arose in a "slightly different context") his Honour concluded (at [14]) that: … there can be different forms of prejudice relating to litigation which are presumptive and which are required to be taken into account when dealing with case management issues such as that which was the subject of that case and that which is the subject of the present case.
His Honour could see no reason why, as a matter of principle, presumptive prejudice could not be relevant in the context of a strike out application for want of prosecution (in that case he referred to the matter having been on foot for four years with little, if any, real progress towards resolution).
In Al-Ahennag, McCallum J identified that prejudice may be manifested not only by "inaction" or a lack of activity, but also be a lack of "constructive activity" (at [110]).
Returning to Mourad, Alsop P examined the implications of delay in the context of the passage of the CP Act and made the following observations (at [47]): Delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act. It cannot always be done. This purpose is not through some parliamentary authoritarian or over-prescriptive view of how people should lead their lives; rather, it is through the keen recognition of the conduct of the courts, in particular in the 20th century, of the need to deal with cases expeditiously if they are to be dealt with justly. Delay and case backlog are not merely factors affecting the costs of delivering justice; they corrode the ability of the courts to provide individual justice. The reforms that have taken place under the Civil Procedure Act and the evident attempt by courts to ensure efficiency can be seen not merely to reflect worthy efforts for efficiency but also to be steps vital for the provision of timely individual justice. Views may differ of justice in any particular case; that is the nature of the term and the value-laden task of a decision-maker to do justice.
Given the first ground of appeal concerning Aon Risk Services, it is appropriate to make some preliminary observations about that judgment in the context of the discussion of relevant principles.
Aon Risk Services concerned an appeal from a judgment of the Court of Appeal of the Supreme Court of the Australian Capital Territory. That Court had rejected an appeal from Gray J to grant leave to amend the claim brought by Australian National University ('ANU') against ANU's insurance broker Aon Risk Services Australia Ltd which was joined to proceedings brought by ANU against three insurers (in which ANU claimed an indemnity for losses it had suffered by reason of the destruction of, and damage to, buildings and contents at its Mount Stromlo complex by fire).
The High Court allowed the appeal with costs and set aside the orders made by the Court of Appeal and the primary judge (save for certain respects which are presently immaterial). The application by ANU for leave to amend was dismissed.
The plurality of the Court focussed attention on Court Procedures Rules concerning civil proceedings in the Australian Capital Territory and, in particular, rr 501 and 502 with respect of amendments and r 21 as to the purposes of the rules and the requirement that the rules be applied to the end specified in that rule.
Rule 501 was found to be inapplicable. However, the plurality found that a power was given to the Court by r 502(1) to permit an amendment "in any way it considers appropriate" and that r 21(2) specified the objectives to be sought by the exercise of that power (at [89]). It was, in the context of the consideration of the relationship between rr 502 and 21 and the discretion to amend residing in the Court, in that respect, that some well recognised passages from Aon Risk Services regarding case management and dealing with issues in civil proceedings regarding delay and expense emerged (and, in part, were reflected in passages of the Commissioner's decision).
The Court concluded that the terms of r 21 resulted in the latitude as to the choice of decision as to whether to grant or refuse to amend was not at large having regard to the objects of that rule. An extract from the judgment of the plurality from [90] (including part of the footnote found in that paragraph) appears below: The overriding purpose of r 21, to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense, is stated in the rules of other courts in Australia [153], although those purposes and the obligations cast upon the court and the parties may be stated in somewhat different terms. (153. See Civil Procedure Act 2005 (NSW), ss 56-58 …)
Before dealing with a further general statement of principle made by the plurality of that kind, it is important to recognise that submissions had been made before Gray J that the decision of the New South Wales Court of Appeal in New South Wales v Mulcahy [2006] NSWCA 303 had the effect of distinguishing Queensland v J L Holdings [1997] HCA 1; (1997) 187 CLR 146 ('J L Holdings') on the basis of the enactment of the CP Act. Gray J did not accept that submission and no issue was taken with that aspect of his judgment. Thus, the plurality stated that the importance of r 21 to the application for leave to amend "is to be determined by reference to its own terms" at [91].
Nonetheless the plurality declined to follow J L Holdings. Furthermore, the plurality made observations as to the principle of case management by "courts administering civil justice" as follows (at [92]): The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: "Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation".
The Court also stated at [97] as follows: The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. …
By reference to r 21(2)(b), the plurality observed (at [93]) that the rules concerning civil litigation … no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants.
Reliance was placed, in coming to that conclusion, upon the judgment of Waller LJ in delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v J P T Ltd [1998] EWCA Civ 1894. That matter concerned an appeal from the High Court of Justice, Queens Bench Division Commercial Court in which the trial judge refused the plaintiff's leave to amend points of claim. In adopting the approach of Waller LJ, the plurality in Aon Risk Services at [95] identified a fundamental premise of case management: "What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question."
The plurality stated that the objective in r 21 did not require that every application for amendment should be refused because it involved the waste of some costs or some degree of delay. Factors such as the nature and importance of the amendment to a party applying cannot be overlooked. The plurality stated at [102]: … It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. …
The plurality summarised the principles in relation to amendments (and questions of delays) as follows (at [111] to [114]) (footnotes extracted): 111 An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future. 112 A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. 113 In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. 114 Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule's objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU's application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a "just resolution" of ANU's claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU's claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided.
Thus, in Aon Risk Services, the High Court clarified and established the principles which should be applied in relation to applications for amendment: Aon Risk Services at [116].
It follows that Aon Risk Services was not, strictly speaking, concerned with strike out applications for want of prosecution per se. Nor was the disposition of the matter concerned with principles governing the granting of adjournments as suggested by the respondent.
It was submitted by the respondent that the reference by Newall C to Aon Risk Services was explicable on the basis that he was dealing with an adjournment. Based upon the immediately foregoing discussion of Aon Risk Services that contention is not available to sustain the Commissioner's decision and, in any event, the Commissioner's discussion of Aon Risk Services went principally, if not wholly, to his consideration of the application to strike out the proceedings for want of prosecution.
However, the judgment of the plurality had wider implications for the system of civil justice administered by courts in Australia. In reviewing the decisions at first instance vis-á-vis amendments, the Court had regard to r 21 which was said to reflect the rules of other courts in Australia designed to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense. The plurality included in this description statutory provisions to the same effect and referred specifically to ss 56 to 58 of the CP Act.
This was reflected in the plurality's reliance on the judgment of Toohey and Gaudron JJ in Sali v SPC Ltd (1993) 116 ALR 625 ('Sali').
Sali concerned an appeal from a refusal to grant an adjournment of proceedings (which in one respect succeeded). The plurality accepted the broad statement of principles stated by Toohey and Gaudron (at 636) as to case management (which resonated with the observations made by Waller LJ).
I propose to set out the whole of the paragraph of the judgment of Toohey and Gaudron JJ, in this respect, which was partly extracted in the judgment of the plurality (at [93]). That passage is as follows: The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales.13 The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. Because these considerations are singularly within the knowledge of the court to which an application for an adjournment is made, there is an added reason why this court should not interfere with a decision made on such an application.
The potential implications of Aon Risk Services for other civil proceedings, including proceedings for dismissal for want of prosecution, were also described by the Court of Appeal in Pacanowski. For example, in the discussion of different forms of prejudice by Tobias JA in Pacanowski (at [14]), his Honour referred to the views of the High Court in Aon Risk Services although he acknowledged Aon Risk Services arose in a slightly different context. Basten JA in the same judgment stated that the consequences of delay had been considered more fully in Aon Risk Services (particularly at [111] to [114] of the joint judgment) "and that those matters should all be assessed and taken into account in the circumstances of a particular case" (at [27]). His Honour indicated that, in the light of the CP Act and the UCPR, it should be appreciated that there was a wider discretion for dismissal of proceedings for want of prosecution (at [28]) "just as in Aon Risk Services there was a relaxation of the restrictions on the refusal of amendments to pleadings".

CONSIDERATION

The power exercised by the Commission under r 12.7 is a discretionary power: Snow v Snow [2015] NSWSC 90 ('Snow') at [28]; Hanshaw v Seven Network (Operations) Ltd 2014 [NSWSC] 623 at [23] and Micallef at [45]. It is a power that should not be lightly exercised: Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - A Division of Westpac Banking Corporation and Ors (No. 2) [2011] NSWSC 1122 ('Udowenko') at [120] and Fleet v State of New South Wales [2009] NSWSC 75 at [15].
The exercise of that power is a balancing exercise in the course of which a variety of factors may be considered including those in Hoser: Dank at [103]. The ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed: Mourad (at [78]) and Hoser at [20(1)].
The discretion must be exercised having regard to the requirements of ss 56 to 60 of the CP Act: Mourad at [49], Udowenko at [121], Snow at [28] and Wakim v Tadros [2011] NSWSC 308 at [28] ('Wakim'). Hence, it is, inter alia, necessary to have regard to the "overriding purpose" referred to in s 56 being "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". This is particularly pronounced where the essence of the application before the Court is delay: Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 at [52].
Section 57 deals with the objects of case management and, by s 58, the Commission is directed to seek to act in accordance with the dictates of justice. (I agree with the approach adopted in the authorities mentioned in the previous paragraph that s 58 is relevant to the exercise of power under r 12.7. The exercise of a discretion to dismiss for want of due despatch is caught by the expression "the management of proceedings" in s 58(1)(a) and the particular order or direction that may be made to that end pursuant to s 58(1)(a)(iii).)
The case of McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308 ('McMahon') concerned an appeal in respect of a refusal by the primary judge to grant leave to the appellant to amend a statement of claim. Briefly stated, the appellant in that case sought to file a fourth amended statement of claim in February 2010, having been granted leave to file a third amended statement of claim in December 2009. The proposed fourth amended statement of claim sought to amend two imputations.
In his judgment, Allsop P discussed the wide implications of ss 56 to 60 of the CP Act. His Honour stated that those sections of the CP Act brought about important changes to the conduct of civil litigation in New South Wales (at [26]). However, His Honour emphatically observed at [30] that "[s]ections 56-58 must be complied with" and that requirement "will involve the weighing of competing considerations". This observation is relevant to all civil proceedings to which the CP Act applies and, in particular, proceedings to determine applications to dismiss for want of due despatch under r 12.7.

The First Ground of Appeal

By the first limb of the appellant's challenge to the decision below, it was, in substance, contended that the Commissioner had erred in applying the judgment in Aon Risk Services to the application under r 12.7 before him (including the Commissioner's regard to the future despatch by the appellant). Alternatively, it was submitted that Newall C had failed to identify important distinctions between the present proceedings and those under consideration in Aon Risk Services, both as to subject matter, the nature of the issues and underpinning facts and circumstances (in particular, in contrast to the circumstances under consideration in Aon Risk Services, there was no extant or scheduled hearing in the proceedings below at the time the motion to dismiss was heard by the Commissioner).
As earlier discussed in this judgment, I accept the appellant's submission that Aon Risk Services concerned a challenge to a determination to grant leave to amend a claim rather than the exercise of a discretion under r 12.7. However, that distinction between the nature of the exercise of powers under review in Aon Risk Services and this case does not necessarily confirm the first part of the appellant's appeal as a closer examination is required as to whether similar considerations might arise in the exercise of the discretion reposing in a court or tribunal to amend or dismiss for want of prosecution, particularly when the exercise of discretion may be influenced by broader objectives as to case management. The judgment of the plurality in Aon Risk Services also discussed the significance of rules or other provisions guiding the management of civil proceedings (such as ss 56 to 58 of the CP Act) and, in broad terms, the deleterious or prejudicial effect of delay on such proceedings for the parties and other litigants (see Aon Risk Services at [93] and [114] as extracted above and Pacanowski at [27]).
The respondent contended that the opening passages of the Commissioner's decision referring to Aon Risk Services and the exercise of a discretion in respect of "applications of this kind" merely involved the Commissioner holding that the exercise of a discretionary power under r 12.7 was of a "similar kind" to that involved in the exercise of a discretion to grant or refuse leave to amend in Aon Risk Services where the objective of the rule considered in that matter (r 21) provided that a discretion be exercised for the "just resolution of real issues in proceedings and timely disposal of proceedings at affordable rates".
There is some substance to that submission although an alternative view as to the approach taken by the Commissioner is that he had regard to and applied the general principles which he derived from the judgment of the High Court in Aon Risk Services.
It would have been preferable in the ordinary course for the Commissioner to refer to, and apply, the guidelines set out in Hoser and subsequent decisions in his adjudication of the application below, but he received no assistance from those appearing as to relevant principles. In any event, in my view, the reliance by the Commissioner upon the general principles discussed by the plurality in Aon Risk Services as to the consequences of delay and the resultant implications for the administration of justice did not, prima facie, constitute an error in the decision below: Pacanowski at [27] and [28], particularly where he thereafter proceeded in his decision to engage in a discussion of discretionary factors. The Commissioner did not disclose error in observing, by analogous reasoning to that adopted by the plurality in Aon Risk Services, there was a wider discretion to dismiss proceedings for want of prosecution than had hitherto been the case, provided he ultimately undertook a balancing exercise in accordance with relevant principles.
The principles to which the Commissioner referred as arising from the judgment of the plurality in Aon Risk Services were, as earlier elaborated, based upon the objectives provided in the rules of court. The plurality found ss 56 to 60 of the CP Act were a relevant counterpart to those rules (at least in terms of the overriding purpose to facilitate the just resolution of civil proceedings with minimum delay and expense in order to reduce the deleterious effect of delay both to the immediate parties and other litigants).
Given that it was incumbent upon the Commissioner to have regard to the provisions of ss 56 to 58 of the CP Act in the exercise of his discretion under r 12.7, as a matter of logic the adoption of principles which appear to derive from a similar source or heritage (as the rule considered in Aon Risk Services) would not, on its face, constitute error. A similar conclusion may be reached by direct reference to the provisions of ss 56 to 58, which confirm that it was not irrelevant to have regard to the principles extracted by the Commissioner from Aon Risk Services. This may be illustrated by a brief reference to the subject rules below.
Section 58(2)(a), by reference to s 57, mandates regard be given to timeliness and efficiency (per s 57(1)(b), (c) and (d)) in the determination of proceedings (including the use of available judicial and administrative resources). When combined with the requirements of s 58(2)(b)(ii) and (iv) (focussing attention upon the degree of expedition adopted by the respective parties in proceedings and the fulfilment of their duties under s 56(3)), the CP Act emphasises, in case management, not only upon the interests of the parties to the proceedings but other interests of litigants and the court itself consistently with the statements of general principle by the plurality in Aon Risk Services (see [114]). The Commissioner's opening discussion of the principles in Aon Risk Services was, therefore, prima facie also consistent with the matters permitted consideration under ss 56 to 58 of the CP Act (see also Micallef at [63] to [64] and Mourad at [47] - extracted at [86] above).
This approach is consistent with the authority in Wakim at [33] where it was held that, in the context of proceedings to dismiss for want of due despatch, the general principles enunciated in Aon Risk Services were relevant.
Contrary to the submissions of the appellant, these same considerations warranted the Commissioner examining whether the appellant would, if the motion were dismissed, proceed with due despatch in the future. In particular, such assessments must fall for consideration under s 57(1) for the purpose of fulfilling the overriding objectives in s 56(1) vis-á-vis the achievement of efficient and timely disposal of the business of the court and proceedings. The consideration of this factor, in the exercise of a discretion under r 12.7, also arises, by implication, from s 58(2)(b)(ii). An examination of the degree of expedition with which the respective parties have approached the proceedings would seem to necessarily incorporate an analysis of the steps taken or to be taken in the rectification of delay so as to conform with the overriding purpose as stated in s 56(1) and to eliminate the lapse of time referred to in s 59. (I note this approach is consistent with authority as to factors to be considered in proceedings under r 12.7: see Hobbs at [53] to [55] and Udowenko at [118].)
These considerations do not, however, dispose of the first ground of the appellant's appeal as it submitted, in the alternative, that, even if some of the principles stated in Aon Risk Services may have been broadly relevant to the application before the Commissioner, he failed to distinguish that authority having regard to the facts and circumstances of this matter which were said to differ to those found in Aon Risk Services. In particular, the Commissioner failed to appreciate that the principles in Aon Risk Services were developed in circumstances where an amendment and adjournment were sought with respect to a part heard matter - circumstances distinguishable from the present where no hearing had been scheduled. This consideration was also relevant to the issue of prejudice.
The appellant was correct to point out that the judgment in Aon Risk Services did, in fact, involve a consideration of the impact of amendments upon an extant trial including an accompanying application for adjournment. The application was, in fact, made on the third day of a four week period which had been allocated for the trial of the action in the Supreme Court of the Australian Capital Territory. The proceedings below had not been fixed for hearing, save as to the motion. The proceedings had progressed merely to the point where inquiries had been made as to whether the matter may be listed from February 2015. Even that prospect lacked certainty as the parties were apparently not jointly available until March 2015. Putting aside the conciliation, the first and only hearing scheduled in the matter was the hearing of the motion to dismiss for want of prosecution.
Further, if the reasoning in Aon Risk Services vis-á-vis amendments to proceedings was to be adopted as analogous reasoning in the present proceedings it was necessary to fully have regard to the applicable reasoning in that case. The plurality in Aon Risk Services recognised that the central objectives governing case management as specified in r 21 of the ACT Court Procedure Rules (and the particular rules governing amendments) did not require every application for amendment to be refused because it might involve a waste of costs and some degree of delay. (The relevant passage of the judgment is set out in [98] of this judgment.) In particular, the plurality identified that the application of the rule would be dependent upon the point the litigation had reached relative to a trial at which an application was made; in other words, the exercise of a discretion to amend would depend, in part, upon the stage the proceedings had reached, particularly relative to the hearing of the trial. Those same factors were relevant, albeit in a different context, to proceedings under r 12.7 for want of prosecution, particularly as to prejudice. However, I will return to that question in relation to the consideration of the second ground of appeal.
From a more general perspective, the High Court reflected the view that the application of the general principles applicable to civil proceedings was dependent upon, and subject to, the facts and circumstances of the particular case in question.
Thus, in Wakim, the Court expressed a caveat as to the application of the general principles in Aon Risk Services in proceedings under r 12.7, namely that "care should be taken to construe the principles elucidated in Aon within the context of the facts and circumstances of the matter before the Court" (at [34]).
This consideration is also reflected in the observations of the Full Court of the Federal Court of Australia in Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 at [51] as follows: Aon Risk is not a one size fits all case. Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case. As the plurality in Aon Risk observed at [75], statements made in cases concerning amendment of pleadings are best understood by reference to the circumstances of those cases, even if they are stated in terms of the general application.
Further, in the exercise of a discretion under r 12.7, each case depends upon its own facts: see Hoser at [21(2)] and Mourad at [28].
Bearing in mind these considerations there is, in my view, substance to the alternative aspect of the appellant's first ground for the following two reasons: 1. The Commissioner did not expressly take into account or weigh in the exercise of his discretion the fact that no hearing dates had been set down in the proceedings before him. There is no proper basis to infer he had regard to that consideration. The very nature of the observations the Commissioner made with respect to the applicable principles from Aon Risk Services, namely that judicial resources would be wasted and there would be an impact upon other litigants, would strongly suggest otherwise as those observations concern a loss or displacement of time allocated for hearing by the Commission. 2. The Commissioner failed to recognise that the plurality in Aon Risk Services had specifically provided that the application of the principles to which they referred, whilst generally applicable to civil proceedings, depended upon the facts and circumstances of a case. In particular, the plurality recognised that it was necessary to have regard to the stage of the proceedings including whether a trial had commenced or was scheduled to commence, the very consideration, as I have found, the Commissioner did not have regard to in the matter below. In this sense, in so far as Aon Risk Services was applicable to the proceedings below, the Commissioner misapplied it. His decision on a question of law, in this respect, is erroneous (a consideration I will discuss further at the conclusion of this judgment).

The Second Ground of Appeal

The appellant contended, on a broader basis in the second ground of appeal, that the decision at first instance did not represent a proper balancing of the prejudice to each party and, in that light, failed to recognise that justice demanded the application not be dismissed. Indeed, the appellant went so far as to contend that the only matters the Commissioner had regard to below were those which were adverse to the appellant.
Those contentions require a consideration of the reasoning process of the Commissioner in the light of the facts and circumstances of the proceedings at first instance.
Before undertaking that analysis, it is convenient, given its proximity in this judgment, to first visit the implications, in this context, of the Commissioner not having regard to the absence of a scheduled hearing, save as to the motion itself.
As observed above, it is appropriate, in the exercise of discretion under r 12.7, to have regard to the stage of the proceedings and, in particular, whether a hearing had commenced or had been fixed and, further, whether such arrangements may have been adversely affected by the delay caused by the appellant (whether through default of directions or otherwise). The absence of hearing dates had a direct bearing upon the extent to which the respondent suffered prejudice and thereby was important to consider as part of the balancing exercise required in the exercise of a discretion under that rule. In short, the prejudice suffered by a respondent will typically be less where any delay, or in this case default upon directions, did not or will not result in a loss of a scheduled hearing with resultant consequences of costs arising (in a no-costs jurisdiction) and loss of time and resources (in the sense contemplated in the general principles stated in Aon Risk Services).
Similarly, the absence of a scheduled or actual trial was relevant to the factors to be considered under ss 56(1) and 57(1) of the CP Act. The overriding purpose as specified in s 56(1) includes the achievement of a quick, cheap and efficient resolution of the proceedings. This has to be married with the dictates of justice.
In this case, the appellant had not been directly responsible for the matter not being reached for hearing in the sense of resisting the matter being set for hearing or causing or seeking to cause an adjournment to proceedings, even though she was in default of directions. By the initiative of the Deputy Industrial Registrar, the matter was called before her on 18 March due to the identification of a failure to comply with directions which had been earlier set. No steps had been taken by either party or the Commission (other than earlier general inquiries by the Deputy Industrial Registrar as to the availability for hearing of legal representatives) to establish a hearing of the matter (it is also reasonably clear that the Deputy Industrial Registrar did not list the matter for mention on 18 March for that purpose). In this sense, neither the appellant nor her legal advisors had detrimentally affected, in a direct way, the fixing of a hearing date and, to that extent, to delay the progress of the matter.
It was necessary to achieve a balance between the need for compliance with directions in order to efficiently dispose of the proceedings (and maintain compliance with the practice note given that delay may affect the proper disposition of the application for reinstatement or reemployment) with the consideration that, as at the hearing of the motion, no scheduled trial dates (or a trial per se) were affected by the default (again, at the time of the hearing of the motion, hearing dates were not even potentially affected as no dates had crystallised following inquiries of the legal representatives as to dates). Thus, it was available to the Commissioner, in lieu of dismissing the matter, to set hearing dates (subject to the limitation of available Commission resources which was referred to by the Commissioner) which could be maintained by guillotine order (offered in the proceedings below by the appellant's counsel) without any displacement to existing hearing arrangements in the immediate case or otherwise. This factor had to be weighed in the interests of justice, but was omitted because the issue received no attention, most likely due to the focus upon the particular factors said to arise from the judgment in Aon Risk Services. A question that should have been asked in this context was, what prejudice would the respondent suffer in the event a guillotine order, as proposed by the appellant's counsel, was made in correspondence with the matter being listed for hearing?
The respondent's reliance upon the judgment of Allsop P in Mourad at [47] (appearing in [86] of this judgment) and [48] does not present an effective rejoinder to these considerations. His Honour was fully cognisant of the need to balance prejudice to the parties and the need, in that respect, to focus attention upon the particular facts and circumstances of the case. He did so in his acceptance of the judgments of Young JA and Sackville AJA. This is reinforced by the emphasis his Honour gave to the CP Act and the ultimate requirement to ensure "individual justice".
I refer, in this respect, to the observations of the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 at [56] and [57] as follows: [56] The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose. [57] That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.
I propose to next conduct a broader assessment of the facts and circumstances of the matter and the Commissioner's decision with respect to the same. This will be undertaken in the following numerated paragraphs noting that the ultimate question is whether an error had occurred in a decision on a question of law having regard to the aforementioned summary of principles relevant to an application under r 12.7. Those considerations are as follows: 1. Delay between the commencement of the application under Pt 7 of Ch 2 and the date upon which the application under r 12.7 was considered is a relevant factor to be taken into account in the balancing exercise: Pacanowski at [27]. However, this is because delay may give rise to prejudice. The real question is not the length of the delay but the impact the delay has upon the defendant's capacity to properly defend a claim: Hoser at [25(7)]. Whilst some prejudice may be presumed by reason of the passage of time, much will depend on the nature of the proceedings and the identification of the issues involved in the litigation. 2. Other than the production of the notice of appeal at first instance at the request of the Court, the parties paid no attention in these proceedings to the nature of the proceedings below or the issues involving litigation. No assessments as to those matters appear in the decision below, save to the extent that there was a discussion about some aspects of the history of the matter during the course of the adjournment application made by the representatives of the appellant. That exchange indicated the existence of proceedings brought by the appellant in other jurisdictions prior to her dismissal including a workers compensation claim. The Commissioner expressed the view that he would not hold "long running proceedings in other jurisdictions" against the appellant or form any view about those matters. As I will discuss further in one moment, he eschewed any requirement to consider the merits of the proceedings and did not consider the appellant's prospects for success: a factor relevant to the balancing exercise under r 12.7: Hoser at [29(10)]. 3. Despite the parties acquiescing to the Court consulting the case file at first instance, I have taken the view that this acceptance did not extend to a consideration of the written case for the respondent which was filed in the proceedings in accordance with the directions issued in the proceedings or to examine the content of the affidavits filed which were not admitted in evidence before the Commission. The inquiries as to the record below were for the purposes of clarifying the procedural history of the matter including the transcript of the proceedings for 18 March 2015 (that transcript of the proceedings below should have been, but was not, incorporated in an appeal book pursuant to r 8.8(b) of the IRC Rules 2009 - Pt 51 of the UCPR is confined to proceedings assigned to the New South Wales Court of Appeal - see r 51.1(1)). What may be said, then, from the record below, is that the appellant wished to contest her dismissal. The letter of dismissal attached to the notice of appeal, as previously observed, stated the appellant was dismissed for misconduct. It is uncertain whether she intended to contest that determination by her former employer, per se, although it would appear she may do so. A contest as to whether she had (in whole or part) engaged in misconduct would typically have resulted in an evidentiary contest, subject, of course, to the nature of the misconduct allegations, but no firm conclusion can be reached in this respect on the record before the Court and submissions by the parties to these proceedings. This was one factor relevant to the determination of what prejudice, if any, the respondent may suffer in the proceedings as a result of the default of the appellant with respect to the filing of evidence in accordance with directions issued by the Commissioner. 4. The delay occasioned between the commencement of the proceedings and the application to dismiss being heard by the Commissioner was about 8.5 months. The delay was made up of a number of elements: a conciliation period of approximately two months; an elongated directions programme for the filing of evidence and other material (having regard to the usual directions) of approximately three months; a period after the appellant was due to file and serve evidence in accordance with the directions issued by the Commission, during which the parties reached consent arrangements to vary the programme fixed by the directions by extending time for the appellant to file and serve her evidence - this period lasted approximately three months; and a final period during which the respondent refused to consent to any further adjournments (from 27 February until the matter was called on before the Commission and the motion heard), a period of approximately one month. The time between the listing of the matter before the Deputy Industrial Registrar for non-compliance in the programme and the hearing of the application was five days (which included a weekend). 5. The Commissioner made an assessment as to whether there was "good despatch" having regard to events after August 2014 (that is, from the end of the conciliation process). The Commissioner did not, however, evaluate the matter in terms of the passage of time from that date per se (in other words he did not look at delay simpliciter) but, rather, fixed his attention upon the appellant's breach of orders without adequate explanation. 6. The Commissioner was entitled to have regard to the default of the appellant to directions (notwithstanding the absence of an application made under r 61) to the extent that the failure to comply with directions went to the question of delay and prejudice: Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61 ("Baffico") at [80] per Bergin CJ at Eq with whom Ward JA and Tobias AJA agreed; Pacanowski. 7. The Commissioner properly had regard to the explanation proffered by the appellant for delay: Hoser at [22(3)]. Two explanations for delay were proffered below: the delay resulted from the consent of the parties to vary the timetable for the filing of evidence via alternative draft orders extending the time for the appellant to file her evidence (albeit ones not filed before the Commission or made the subject of an application for extension of time); and illness. 8. As to the first of those explanations, the evidence disclosed that there was agreement between the parties to extend the programme for the filing of the appellant's evidence and other materials until 27 February, the last extension deriving from the appellant's legal representative advising the respondent on 4 February that the appellant was ill. It is not entirely clear how the Commissioner dealt with this aspect of the matter. He certainly indicated that the extensions by consent could not be held against the defendant but, in the course of considering whether orders had been complied with, indicated that there had been multiple defaults and there was an obligation for the Commission to be advised of default and applications made for an indulgence to extend time. These competing considerations were not reconciled in the decision. Depending upon how this issue is resolved, the Commissioner's approach, in this respect, may, in part, represent a rebuttal to the appellant's contention that he only took into account factors adverse to the appellant in his weighing process. Further, there are other indications that the Commissioner did have regard to factors in favour of the appellant. Save for the issue just mentioned (if the Commissioner did, in fact, examine this as a matter favourable to the appellant), the Commissioner also examined the appellant's explanation for delay and whether it was clear she would put on her evidence in the future, albeit forming views adverse to the contentions made on behalf of the appellant in both respects. 9. The first explanation is relevant to the consideration of prejudice. A defendant who takes no steps to secure progress of the proceedings or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will bring an end to the proceedings or strengthen a case for a strike out runs a risk that that very behaviour will operate to the defendant's disadvantage: Stollznow v Calvert (1980) 2 NSWLR 749 at 754 and Hoser at [24(5)]. Here the respondent did take active steps with respect to the progress of the proceedings but did so by entering into formal agreements with the appellant to extend time for the appellant to put on her case. It seems to me that is a factor going to whether the respondent, the party complaining about the lack of progress, may suffer prejudice. The respondent can hardly complain about delay occasioned by its acquiescence or waiver. 10. The second explanation for delay was ill health. That related to the period from December although advice as to the illness of the appellant, as earlier noted, was not provided to the respondent until 4 February. The Commissioner reached a conclusion that the evidence called by the appellant as to illness, as a justification for failing to comply with the directions issued in the proceedings, did not provide a proper and adequate reason for the same. (He did not, however, identify whether this conclusion related to the whole or part of the period in which the appellant was in default of orders.) No challenge was made to his finding to reject the appellant's explanation for delay in this respect. Whilst it is not part of the review in these proceedings, it does seem to be a conclusion plainly open to the Commissioner. 11. No submissions were made in these proceedings or the proceedings below about the blameworthiness of the appellant in the delay: Hoser at [23(4)]. This was not a matter considered by the Commissioner or raised by the parties to the appeal. The evidence in the proceedings would suggest that the legal representatives of the appellant had diligently pursued her to file the requisite material and had reasonably cordial engagements, as noted above, with the solicitors for the respondent as to extensions of time. It appears, as the Commissioner noted, that a conference was held with counsel for the appellant at the end of 2014. The blame for delay seems, in that respect, to fall on the appellant herself. There is, however, a further consideration. Counsel for the appellant below appropriately accepted that the matter should have been relisted before the Commission but did not indicate whether that responsibility should be placed upon the appellant herself or her representatives. Given the fact that the appellant's solicitors managed the negotiation of the consent orders, the obligation to file them would presumably have been their responsibility. However, in the absence of this submission on the question no adverse conclusion can be reached as to the contribution of the appellant's legal representatives. 12. The Commissioner considered the question as to whether there was any certainty that the appellant would file the evidence and other matters required by the directions in the future. The Commissioner concluded there was no certainty about when the evidence of the appellant might be filed other than a doctor's appointment scheduled for 24 March and an email "that another four weeks might do it". The Commissioner was, no doubt, correct to say that there was no certain date on which the appellant's evidence would be filed. However, this is a different matter from a conclusion that there were no reasonable prospects the evidence would be filed or that the delay might be more or less infinite. Mr Tully, who appeared for the appellant, had proffered an email to the Commissioner indicating that a four week period would have the matter go forward and submitted there was "no reason why the matter couldn't progress fairly readily and at a prompt speed from this day forward" in his submissions to the Commissioner on the application (the full relevant extract of his submission is set out in [35] of this judgment).
I turn then to particular issues going to prejudice.
The evidence given by the respondent as to prejudice is found in the affidavit of Mr Cureton of 20 March 2015 (see [30] of this judgment). That evidence, which is in the form of a contention, focused attention upon the retirement of Mr Aslanis on 30 June 2015. It was contended that he was the person best placed to provide evidence as to the respondent's case and that, by his retirement, the respondent would be prejudiced by the loss of his knowledge and be required to depose another witness to give some or all of the evidence which may have been provided by Mr Aslanis. This would appear to be a submission as to actual prejudice. A more general proposition was the length of time which had passed since the events in this matter occurred would prejudice the respondent's case.
The Commissioner made no particular finding about the severity of the prejudice occasioned by the respondent arising from these circumstances simply indicating that he would give that matter "some weight".
It appears to me that the prejudice experienced by the respondent, on the evidence below, was minor or insignificant at the requisite time (that is, when the motion was heard). Mr Aslanis filed a lengthy statement on 16 October 2014. There is no evidence that, if the matter extended beyond the date of his retirement, he would not make himself available to give evidence or that there may be some particular difficulty in summonsing him to give evidence, for example, due to age, ill health or some geographic relocation. Perhaps more importantly, Mr Cureton's evidence was led on 23 March 2015, some three months before Mr Aslanis' retirement. The prejudice, such as it was, may have been avoided by guillotine orders having the effect of compelling the appellant's evidence to be put on in such a way as would permit a hearing of the matter in which Mr Aslanis' evidence was taken prior to his retirement (assuming hearing dates could be found before that date). No consideration appears to have been given as to whether a hearing of the matter was, in fact, available prior to the retirement date.
Further, I do not consider that any presumptive prejudice to the respondent can be other than insignificant. The prospects of some non-compensable inconvenience and stress on the respondent or its officers would be minimal in circumstances where, at the time the motion was heard before the Commissioner, the respondent's case had been put on and hearing dates had not been fixed (see the discussion of the plurality in Aon Risk Services at [100]). The Commissioner was required to make an assessment of the veracity and significance of this asserted prejudice. He did not reveal in his reasons for decision that he did so.
The appellant contended that she suffered prejudice by being deprived of an otherwise valid claim and that the prejudice, so described, was severe because statutory time limits precluded a fresh application being brought by her after dismissal. It was submitted that the Commissioner failed to take into account this consideration, a proposition rebutted by the respondent on the basis that, even though the Commissioner did not expressly allude to the matter, he must be taken as having an understanding of the impact of his decision to dismiss.
It is true that the Commissioner did not specifically allude to this consideration regarding prejudice. However, I do not accept that the Commissioner, given his experience, would not be cognisant that a prejudice would arise from the dismissal of a valid claim and so much may be inferred from his decision. However, one may be less sanguine about particular consideration being given below to the fact that the applicant would be precluded from bringing fresh proceedings in the absence of any reference to the matter by the Commission. I do not consider the Commissioner's statement at the conclusion of his decision that he was "simply not prepared to extend the commission's resources further to permit this matter to continue itself before this tribunal" would support a contention (although the respondent did not refer to this particular aspect of the Commissioner's decision) that the Commissioner was cognisant in weighing prejudice that the appellant's case would be extinguished as a result of being out of time. This is because the words used by the Commissioner, namely, "continue itself before the tribunal", appear to make reference to the actual proceedings before him.
Before proceeding with an analysis of this aspect of the appellant's contentions it is necessary to examine whether there is a proper legal foundation for them: namely that the appellant is precluded from bringing fresh proceedings under Pt 7 of Ch 2 of the Act.
Section 91 of the CP Act applies to all proceedings before the Commission and has been set out earlier in this judgment (see [60] above).
Section 91 deals solely with cases of dismissal: Stanizzo v Badarne [2014] NSWSC 1334 at [51]. The provision applies to the subject proceedings as the section does not limit itself to hearings in which all matters in dispute on the pleadings are determined but focussed on "claims for relief" and "determinations of merits".
The right or ability to bring fresh proceedings under s 91 is qualified: Lee & Ors v Keddie & Ors [2009] NSWSC 777 at [18]. Section 91(2) provides, in substance, that if the court dismisses proceedings following a determination on merits or dismisses any claim following a determination on merits, the applicant is not entitled to claim relief with respect to the same cause of action in any subsequent proceedings commenced in that or any other court. The restraint is against the institution of proceedings: Gold & Copper Resources Pty Ltd v Minister for Resources & Energy & Anor [2014] NSWLEC 169 at [25].
The merits of a claim for the purposes of this section broadly concern the determination of the rights of the parties in issue in the proceedings, that is, the determination of the substantive claim: Mhanna v Daoud [2014] NSWCA 376 at [20]. The merits of the claim may involve legal as well as factual merits but the determination of merits is normally to be distinguished from "a determination by default or consent or by dismissal for non prosecution which does not involve an examination of the merits": Tawil v Public Trustee of NSW; Estate of Michael Pavlovich Biriukoff [2009] NSWSC 256; (2009) 2 ASTLR 317 at [13]. Similarly, in Bridie v Messina [1965] NSWR 332; (1965) 66 SR(NSW) 446 at 453, it was held that the hearing of the merits is one in which the issues of fact and law or both between the parties are fought out to a final conclusion binding on the parties, that is, a decision on the merits.
In my view, the dismissal of the proceedings brought by the appellant in the orders made below did not invoke the qualification with s 91(2). The order did no more than dismiss the matter for want of prosecution. It was purely a dismissal of a procedural character. No findings on the merits of the substantive proceedings were made, even to the point where the Commissioner eschewed any intention of considering the merits of the application.
There remains a question, however, as to whether the appellant is precluded from bringing further proceedings under Pt 7 of Ch 2 because the further application would be out of time.
There are two reasons, in my view, why the applicant would be statute barred from bringing further proceedings under Pt 7 of Ch 2 after the orders of dismissal made by the Commissioner. These are as follows: 1. The expression "fresh proceedings" in s 91(1) should be understood as new proceedings which are separate and apart from the former dismissed proceedings (see Sanders-Pattinson v Brown [2013] NSWCA 137 at [16]). Such proceedings would, therefore, attract the operation of s 100B(2) of the Act. Time will run, in that respect, from the date of dismissal of the appellant. The ordinary and grammatical meaning of the words in s 100B(2) preclude the Commission from hearing and determining an application brought under Pt 7 of Ch 2 filed after the expiry of the statutory time limit. This conclusion derives from the use of the word "must" in s 100B(2) and because the construction accords with the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory not directory (see the discussion in Bailey v Commissioner of Police [2014] NSWIRComm 53 at [21]). 2. This interpretation of s 91 accords with the common law in circumstances where there is a dismissal or withdrawal of a complaint or summons: Land v Land [1949] P.405 at 413 and Owens v Minoprio [1942] 1 K.B. 193; [1942] 1 All ER 30 at 196 and 197.
Neither party directly addressed the question as to whether the prejudice deriving from a dismissal of a valid claim which might be statute barred if dismissed would heighten the prejudice to an applicant, although this is implicit in the appellant's submissions. In my view, that conclusion must follow; a conclusion supported by the decision of Bergin CJ at Eq in Baffico at [80].
Hence, whilst the Commissioner did, no doubt, have regard to the fact of the prejudice to the appellant arising from the dismissal of a valid claim, I do not consider that the Commissioner balanced, in the exercise of his discretion under r 12.7, the prejudice to the appellant occasioned by the fact that the dismissal of the valid claim would result in no prospects for the bringing of fresh proceedings of the character found in her application below and, therefore, the appellant was ultimately precluded from a hearing of her application under Pt 7 of Ch 2 on the merits. In other words, the Commissioner did not balance or sufficiently disclose in his reasons that he had balanced, in accordance with the requirements of r 12.7 and ss 56 to 58 of the CP Act, the prejudice to the appellant arising, in this respect, from the dismissal of the proceedings in accordance with the requirements of r 12.7 and ss 56 to 58 of the CP Act. (As this issue was not raised below there may not have been a sufficient foundation to support the appeal in this respect. However, given the likely limits of available relief in this appeal, there is utility in pronouncing upon the error in this respect.)
For completeness I will deal with the final factor identified by the appellant as indicating that the Commissioner did not properly engage in the balancing process indicated by the judgment in Hoser. It was submitted that the Commissioner had regard to an irrelevant factor in his considerations in that he inappropriately took into account that the appellant had failed to inform the Commission as to the fact of and reason for delay. I do not accept this contention for the reasons earlier advanced, namely, that the practice note required the appellant to give notice of changes in directions or to seek some alleviation of the programme.
It should be observed, in this respect, that the Commissioner's endeavours to press the appellant to conform with the timetable set in the matter is to be applauded and in other circumstances (than earlier discussed in this judgment) may have formed the proper basis for a dismissal for want of prosecution. Regrettably, in this case, the Commissioner, unaided by reference to authority below, formulated an erroneous question and failed to deal with some relevant considerations resulting in a miscarriage of the proceedings.
Before dealing more precisely with those errors in decisions as to questions of law below, it is important to refer to two observations made in authorities relating to dismissal for want of prosecution which I consider are applicable to the foregoing discussions and have a bearing on the disposition of the appeal. First, the discretion to dismiss under r 12.7 should be exercised only in a clear case where it is manifestly warranted in the interests of justice having regard to the requirements of ss 56 to 58 and Hoser (at [21(2)]). Secondly, the provisions of the practice note requiring adherence to directions are important and require close and rigorous attention. They have a significant purpose to ensure the quick, cost effective and just hearing of matters under Pt 7 of Ch 2. However, the absence of any scheduled hearing in this matter (or part heard trial) was important to consider and should have focussed attention upon the need to consider alternative remedial measures in light of a failure to adhere to directions such as a guillotine order. This was particularly so where the lion's share of the delay was occasioned by a combination of a conciliation process, the period fixed for the filing of material under direction by the Commission and consent arrangements to extend the programme. The appellant's inadequate explanation for delay, in substance, related to a period of one month. As was stated in Baffico, "there must be a cautious and proportionate response to such breaches" (at [80]).
These factors may have been displaced to some extent by a finding that there were no reasonable prospects that the appellant would prosecute the matter within a reasonable time but the Commissioner made no such findings, rather concluding that the submissions of the appellant's counsel that the appellant would file evidence within four weeks (from a note shown to the Commissioner) and a contention by the appellant's solicitor that a further medical appointment had been made for 24 March did not result in certainty as to how the proceedings might be 'advanced'. The Commissioner emphasised there was no date "upon which it the appellant's material might be put on". Making due allowance for the fact that the Commissioner delivered an ex tempore decision, he did not deal specifically or conclusively with the submission made by counsel for the appellant that the matter could proceed with alacrity aided by guillotine orders.
Ultimately, the Court has found above that the reasoning of the Commissioner is possessed of an appealable decision on questions of law, namely, that the Commissioner reached conclusions with respect of matters that required, for their determination, the identification of a relevant matter of law and an error has been demonstrated with respect to that matter of law.
The error disclosed in relation to the alternative aspect of the first ground involved the Commissioner posing for himself an incorrect question. The question was not whether the general principles stated in Aon Risk Services as to the need to preserve judicial resources and taking into account the interests of other parties or the Court (to the extent applicable) should be applied generally to the proceedings, but whether or to what extent those principles should be applied having regard to the facts and circumstances of the case, namely, there was no fixture for hearing or arrangements for hearing in the subject proceedings and that the matter had effectively been called before the Commission for the first time. By this approach, the Commissioner misapplied the judgment of the plurality in Aon Risk Services by failing to have any or sufficient regard to the stage the proceedings had reached at the time he exercised his discretion under r 12.7. The error may be otherwise expressed as a failure to have regard to a relevant consideration.
The aforementioned consideration bears a close relationship to the second error. The Commissioner reached an unchallenged decision that the appellant had not proceeded with due despatch. This, as I have discussed, engaged the provisions of r 12.7, even though directed to a failure to comply with directions insofar as that consideration related to delay and prejudice. However, the exercise of a discretion under r 12.7 required a balancing process conforming with the aforementioned discussion of principles and ss 56 to 58 of the CP Act. Whilst the Commissioner engaged in the consideration of a range of discretionary factors in his decision, there was, in my view, a failure to properly or adequately engage in the balancing process in accordance with those principles and provisions. More specifically, the decision of the Commissioner on a question of law as to the factors he was required to take into account in the exercise of his discretion, manifested a failure to take into account relevant considerations which he was required to consider having regard to the aforementioned principles and statutory provisions for the reasons given above (which include the discussion as to a failure to have regard to no hearing dates being set).
The appellant sought the following relief in paragraph 10 of the appeal: 10.1 Leave to appeal granted. 10.2 The appeal is upheld. 10.3 The Commissioner's orders of 23 March 2015 are quashed. 10.4 The proceedings are returned to the Commissioner for programming and determination.
Given the conclusions reached in [20] of this judgment, the appropriate form of order for the first of the claims is that, if leave to appeal is required, the leave is granted.
The form of relief sought in paragraph 10.2 should be granted given the errors of law found in this judgment.
Turning to the third ground of relief, the errors of law found in this judgment are such that the orders made by the Commissioner at first instance cannot stand. There is no discussion before the Court as to whether the orders should be quashed or set aside. In the circumstances, it would appear appropriate to make the order sought in paragraph 10.3, namely, that the orders of the Commissioner made on 23 March 2015 are quashed.
That brings to consideration the last order sought.
It was not entirely clear whether the final order sought by the appellant was predicated upon the provisions of s 197B(2)(a), namely, a remitter of a matter to the Commission for determination in accordance with this judgment or an alternative form of order that the matter be determined by this Court as if the Court were re-exercising the discretion exercised by the Commissioner under r 12.7. Given doubts may exist as to whether the Court may exercise the latter power under s 197B(2), it seems appropriate the Court give the parties a short opportunity to make submissions as to the form of relief that is appropriate having regard to this judgment. A related consideration would be whether any other orders should be made under s 197B(2) such as the expedition of any proceedings or other procedural matters.
The appellant shall file and serve further submissions in writing as to the relief claimed (and any amended orders sought) with seven days of this judgment and any reply by the respondent shall be filed and served within a further seven days. Accordingly, I direct that the appellant file and serve any further submissions as to the relief claimed in the light of this judgment on or before 4pm 17 February 2016 and the respondent to file and serve any further submissions in that respect on or before 4pm 24 February 2016. Any further judgment as to orders to be made in the disposition of the appeal will be undertaken on the papers unless there is an application for a short oral hearing or the Court forms a view that it would be assisted by further oral submissions of the parties.

Amendments 01 March 2016 - Title of judgment was amended from Beavan v Family and Community Services (Housing NSW) [2016] NSWIC 1 to Beavan v Industrial Relations Secretary (No 1) [2016] 1 on 1 March 2016 in accordance with the judgment of the Court in Beavan v Industrial Relations Secretary (No 2) [2016] NSWIC 3 26 May 2016 - This judgment was amended to replace the reference to "s 163(1)(b)" at [26] with "s 163(1)(c)" per the direction of the Court in Beavan v Industrial Relations Secretary (No 3) [2016] NSWIC 5 at [28]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 May 2016

Industrial Relations Commission Rules 2009(NSW)

Court Procedure Rules 2006(ACT)

See Civil Procedure Act 2005(NSW)

Industrial Relations Secretary v Fraser No 2 [2015] NSWIRComm 10 Land v Land [1949] P.405 Lee & Ors v Keddie & Ors [2009] NSWSC 777 McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308 Mhanna v Daoud [2014] NSWCA 376 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Nandini Fonseka v Epic Hotels Pty Limited Owens v Minoprio [1942] 1 K.B. 193; [1942] 1 All ER 30 Pacanowski v Simon Wakerman & Associates [2009] NSWCA 402 New South Wales v Mulcahy [2006] NSWCA 303 PSA v Secretary of Treasury [2014] 242 IR 318 Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40; 86 NSWLR 749 Queensland v J L Holdings [1997] HCA 1; (1997) 187 CLR 146 Sali v SPC Ltd (1993) 116 ALR 625 Sanders-Pattinson v Brown [2013] NSWCA 137 Snow v Snow [2015] NSWSC 90 State of New South Wales v Plaintiff A [2012] NSWCA 248 Stollznow v Calvert (1980) 2 NSWLR 749 Tawil v Public Trustee of NSW; Estate of Michael Pavlovich Biriukoff [2009] NSWSC 256; (2009) 2 ASTLR 317 Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - A Division of Westpac Banking Corporation and Ors (No. 2) [2011] NSWSC 1122 Wakim v Tadros [2011] NSWSC 308 Worldwide Corporation Ltd v J P T Ltd [1998] EWCA Civ 1894 Category: Principal judgment Parties: Joanne Kelly Beavan (Appellant) Family and Community Services (Housing NSW) (Respondent) Representation: Counsel: Mr A T Britt (Appellant) Ms K A Edwards (Respondent)

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