Bizuneh v Industrial Relations Secretary

Industrial Relations Commission (NSW)|2020-05-04

Decision

Mr Tafese Eshetu Bizuneh (appellant) filed with the Commission a Notice of Appeal from the decision of Commissioner Murphy dated 3 December 2019 dismissing his application for unfair dismissal against the Industrial Relations Secretary on behalf of the Department of Communities and Justice (the respondent).
Before the Full Bench of the Commission is a notice of motion filed by the respondent on 20 March 2020 (the respondent's Notice of Motion) seeking: 1. An order that the appeal be dismissed pursuant to rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for want of due dispatch. 2. In addition or in the alternative, an order that the appeal be dismissed pursuant to rule 3.4 of the UCPR as disclosing no reasonable cause of action. 3. Such further or other orders as the Commission sees fit.
The respondent's Notice of Motion was listed before the Commission for hearing on 4 May 2020. On 3 May 2020, the appellant emailed the Industrial Registry, attaching a medical certificate stating that the appellant was not fit for work for the period 2 - 4 May 2020. In the email, the appellant stated: For the reasons state on the Medical Certificate, I am not able to join the Teleconference regarding the Notice of Motion listed for 04 May 2020 at 2:00 PM.
The appellant confirmed at 10:15 am on 4 May 2020 he was not seeking an adjournment and that "the Notice of Motion listed for 2:00 pm today to proceed in my absence." Accordingly, the hearing of the respondent's Notice of Motion proceeded in the absence of the appellant.
At the hearing of the respondent's Notice of Motion, the Commission indicated the Full Bench was considering whether the matter should be dismissed pursuant to s 63(3) of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act). Leave was granted to the respondent to amend the Notice of Motion to include s 63(3)(a) of the Civil Procedure Act as a basis upon which the Commission should dismiss the appeal proceedings.
A direction was made that the appellant file and serve any submissions addressing the Commission with respect to the new ground relied upon by the respondent within 14 days of receipt of the transcript from the hearing. The Commission also made a direction that the respondent was able to file and serve any response within 7 days of receipt of the appellant's submissions. A copy of the transcript was provided to the parties on 5 May 2020 and correspondence was received from the appellant in answer to the directions on 19 May 2020. The Commission did not receive any further submissions from the respondent on this point.

Background

The appellant was employed by the respondent as a temporary full time housing assistant in the Maroubra Office of the respondent in a Housing/Clerical Assistant role from 25 February 2019 to 5 August 2019.
The appellant was initially offered a five month temporary contract for the period 25 February 2019 to 25 July 2019. On 24 July 2019, the appellant was offered a five week extension to the contract, covering the period 25 July 2019 to 31 August 2019. The parties disagree as to whether the appellant brought about an end to his own employment or was terminated by the respondent.
The appellant filed an application for relief from unfair dismissal with the Commission on 28 August 2019 (the unfair dismissal application). In his response to the unfair dismissal application, the respondent raised jurisdictional issues including that the appellant had resigned and brought about the end of his employment, rather than the respondent.
On 15 October 2019, Commissioner Murphy heard the jurisdictional objections and published his decision on 3 December 2019: Bizuneh v Department of Communities and Justice [2019] NSWIRComm 1088, dismissing the unfair dismissal application (the Decision).
On 19 December 2019, the appellant filed an Application for Leave to Appeal and Appeal in respect of the Decision.
On 9 January 2020, the appeal was listed for directions and the Commission directed that the appellant file and serve Appeal Books by 21 February 2020 and listed the hearing of the appeal on 17 June 2020. To date, the Appeal Books have not been filed by the appellant.
Prior to the directions hearing of 9 January 2020, but on the same day, the appellant filed an application to "waive strict compliance with the requirements" of the Commission's Practice Note 1A and cl 8.8 of the Industrial Relations Commission Rules 2009. After hearing from both parties at the directions hearing, the Commission made directions in accordance with Practice Note 1A allowing additional time for the appellant to comply with his requirements and granted leave to the appellant to file a notice of motion seeking leave to adduce further evidence in the appeal by 20 January 2020.
On 9 January 2020, on application by the appellant, the Industrial Registrar waived the fee the appellant would have otherwise been required to pay for the transcript of the hearing below which is required for the preparation of the Appeal Books.
On 28 January 2020, eight days later than the Commission's directions required, the appellant filed a notice of motion supported by an affidavit seeking the leave of the Commission to file fresh evidence in the appeal proceedings (the appellant's Notice of Motion). The respondent filed its submissions with respect to the appellant's Notice of Motion one day later than the Commission's directions required. The appellant's Notice of Motion was listed for hearing on 25 February 2020.
On 20 February 2020, the appellant emailed the Industrial Registry with respect to the appeal, copying the respondent. In the email the appellant stated that he is aggrieved by the Commission's directions made on 9 January 2020. The appellant continued: "The requirement of the Commission to comply with directions made or rules followed must be impartially applied to all parties. Direction number 1 made by Acting Chief Commissioner Constant on 28 January 2020 states: 1. Respondent to file and serve any evidence and submissions in reply to the evidence and submissions of the applicant filed on 28 January 2020 by 11 February 2020. However, the Respondent is only served its submissions in reply to the evidence and submissions I filed on 28 January 2020 on 12 February 2020. This non-compliance is not the first or the second one. As I am unemployed and unrepresented, I am unable to comply with all the remaining orders (and/or directions) made by Acting Chief Commissioner Constant on 09 and 28 January 2020. It is up to the Full Bench of the Industrial Relations Commission to make the decisions on the Notice of Motion listed for 25 February 2020 and my Leave to Appeal and Appeal Application listed for 17 June 2020 on all available submissions I made before Commissioner Murphy. More specifically, for reasons I do not want to divulge I am not able to attend the motion listed for hearing on 25 February 2020 and the hearing of leave to appeal and appeal ;listed for 17 June 2020 before the Full Bench."
On 24 February 2020, the appeal was listed for directions. On 23 February 2020, the appellant emailed the Commission, indicating that he was unwell and unable to appear in person or telephone, attaching a medical certificate. In the email, the appellant stated that "[a]s I have indicated in my previous email, I have nothing to add had I appeared at the direction hearing."
At the directions hearing on 24 February 2020, the respondent informed the Commission that it intended to make an application to have the appeal summarily dismissed. Following discussion with the respondent's representative (the appellant not being present), the Commission concluded that any such application should be heard in advance of the appellant's Notice of Motion. Consequently, the listing for the hearing of the appellant's Notice of Motion on 25 February 2020 was vacated. The Commission made directions in respect of the respondent's Notice of Motion as follows: 1. The Respondent to file and serve the notice of motion to strike out the proceedings, any evidence in support of the motion and submissions by 16 March 2020. 2. The appellant to file and serve any evidence in reply and submissions by 6 April 2020. 3. The respondent is to file anything in response one week after receipt of the appellant's reply material.
The Commission directed that a copy of the transcript of proceedings on 24 February 2020 be made available to both the appellant and respondent, at the Commission's cost.
The respondent filed the affidavit in support of the respondent's Notice of Motion and submissions on 11 March 2020. The respondent's Notice of Motion itself was filed on 20 March 2020, four days later than directed by the Commission. The circumstances surrounding the timing of the filing of the respondent's Notice of Motion are considered below.
On 28 February 2020, the appellant wrote directly to Chief Commissioner Constant. In this communication to the Commission, the appellant: 1. refers to his application to adduce fresh evidence as having been "vacated or annulled"; 2. complains that as an unrepresented applicant, he should not be obstructed from seeking justice; and that the appeal jurisdiction "seems to me deliberately designed as a deterrent - analogous to the Australian government immigration/ offshore determination policy - to appellants like me not to bring an appeal before the Full Bench of the Industrial Commission of NSW"; 3. refers to the Premier's Memorandum M2016 - 03 - Model Litigant Policy (the Policy), implies that compliance with the Policy is the responsibility of the Chief Commissioner and expresses concerns as to "the impartiality of the Commission"; and 4. concludes by asking that the Full Bench to make the decision on his Notice of Appeal, "as soon as practicable so I might be able to take my case to some impartial jurisdictions."
It is within this context that the respondent's Notice of Motion to dismiss the appeal proceeding is before the Commission.

Legislation and principles

The respondent's Notice of Motion seeks an order from the Commission pursuant to rule 12.7 (1) of the UCPR that the appeal proceedings be dismissed for want of due despatch. Rule 12.7(1) provides: 12.7 Dismissal of proceedings etc for want of due despatch (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. (notes omitted)
The appellant argues that the respondent's Notice of Motion should be dismissed with reference to s 63 of the Civil Procedure Act, contained in Division 2 of Part 6 of the Act "Powers of court to give directions". At the hearing of the respondent's Notice of Motion, the respondent was granted leave to rely alternatively upon s 63(3) of the Civil Procedure Act as a basis upon which the appeal proceedings should be dismissed. Section 63 of the Civil Procedure Act provides: 63 Directions with respect to procedural irregularities (1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect. (2) Such a failure - (a) is to be treated as an irregularity, and (b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings. (3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1) - (a) it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part, (b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally. (4) The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure. (notes omitted)
When considering the parties submissions pursuant to s 63(3) of the Civil Procedure Act, it is necessary that is be read in the context of the overriding purpose of the legislation, as set out in s 56, which relevantly provides: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the 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. ……"
Rule 12.7 of the UCPR was considered in the matter of Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334 ('Ghosh'). At [40]-[43], McFarlan JA made the following observations about the Court's exercise of discretion pursuant to the rule (with the concurrence of Leeming JA and Adamson JA): [40] The discretion to dismiss proceedings that UCPR r 12.7 confers if a plaintiff does not proceed with "due despatch" is broad and should not be confined by rigid formulae (Stollznow v Calvert at 751 and Micallef v ICl Australia Operations Pty Ltd (2001) NSWCA 274 at [51] in relation to the comparable power under earlier rules to dismiss for want of prosecution). As Walsh JA said in Witten v Lombard Australia Ltd [1968] 2 NSWLR 529; 88 WN (Pt 1) (NSW) 405: Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised (at 412). [41] As the primary judge properly found, relevant delay in this context is not confined to that which is caused by a lack of activity, it extends to a delay arising out of a "want of constructive activity" (see [30] above). [42] Importantly, the Civil Procedure Act now also adds the overriding purpose of that Act and the rules of court in facilitating "the just, quick and cheap resolution of the real issues in the proceedings" to the matters to be considered (s 56). As well, s 57 includes the "efficient use of available judicial and administrative resources" amongst the objects to which regard is to be had in managing court proceedings, s 59 requires delay to be eliminated so far as possible and s 60 requires the court to take into account the object of "resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute". [43] These considerations are of fundamental importance in determining an application for the dismissal of proceedings for want of due despatch, as they are to all other aspects of the conduct of civil litigation in this State. The primary judge had appropriate regard to these provisions in arriving at her decision to dismiss the proceedings.
In Rous v Department of Education and Communities [2018] NSWIRComm 1017 Chief Commissioner Kite (as he then was) said as follows at [22]-[28]: [22] The comments of Commissioner Newall in Kabir v Department of Family and Community Services [2016] NSWIRC 1009, have particular resonance in this case. The Commissioner said at [13]-[15]: [13] I remain of the view that the provisions of the Civil Procedure Act 2005, particularly s.56 of that Act, bear very much on the exercise of the powers and discretion granted to a court under r 12.7. This Commission, in particular, is a body of limited resources and parties which approach the Commission seeking relief of any kind within the Commission's powers are obliged to conduct themselves with due dispatch. It is not open to parties to luxuriate in the conduct of proceedings in a time and manner which suits them, but does not conform to the Commission's statutory obligations to deal with matters quickly, or indeed conform to directions made by the Commission. If matters are not promptly to be prosecuted, there must be cogent and compelling reasons for that failure presented to the Commission if the tools provided by the UCPR, which must be read in the light of the provisions of the Civil Procedure Act itself, are not to be used to ensure that parties who do conduct themselves with due dispatch are not penalised by parties who do not. [14] In that regard I observe that the Court in Beavan (No 1) drew attention 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]: [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. [15] I accept that Mr Kabir is presently unrepresented. I do not regard that as excusing him from the operation of the Civil Procedure Act (Emphasis as it appears in Rous) [23] I agree with the Commissioner's analysis and conclusions. [24] In these matters, despite numerous explanations by the Commission of the obligation upon it to hear and determine proceedings, and of the obligations of parties to assist in the fulfilment of that obligation, the applicant refuses to take steps to advance her proceedings. I find therefore that the applicant has not complied with the Commission's directions of 18 May 2017 in relation to these two proceedings. [25] In balancing the prejudice to the parties I note that the respondent has been confronted by three separate sets of proceedings in this Commission. In the first of those the applicant sought an adjournment on the basis of her "unfitness" to conduct the proceedings. Later she abandoned those proceedings having commenced the instant proceedings. The Commission and the respondent have recognised her lack of representation and directions have been shaped, having regard to s 56(1) of the CP Act, with a view to mitigating any disadvantage which may flow from that. Nevertheless the applicant has made no attempt to comply with those directions contrary to the obligation imposed upon her by s 56(3) of the CP Act. [26] Even when the respondent had the matter relisted to consider varying the directions the applicant refused to appear. When she did appear in response to the respondent's motion there was no change in the applicant's attitude to her obligations. [27] The result is the respondent has incurred costs and inconvenience. There is no sign of that prejudice abating. [28] The prejudice to the applicant is the loss of her proceedings. In that regard it is relevant to consider the prospects of success of these claims. In my view, for the reasons advanced by the respondent, the applicant has limited prospects of success. I accept the submissions of the respondent that substantial jurisdictional issues confront the applicant in each matter.
We agree with what was expressed in both Kabir and Rous and apply the principles referred to above to these proceedings.
The respondent submits in addition, or in the alternative, the proceedings should be dismissed pursuant to rule 13.4(1)(b) of the UCPR on the basis that no reasonable cause of action is disclosed by the appellant in the appeal proceedings. Rule 13.4 provides: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). (notes omitted)
The respondent referred the Commission to Bott v Carter [2012] NSWCA 89 at [13]-[14], where Basten JA said as follows: 13. According to established principle, proceedings should not be dismissed generally if there is "a real question to be tried". As has been explained by the High Court, "great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal": General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ). However, as that case itself demonstrated, where upon full legal argument it is established that there was no legally tenable cause of action, summary dismissal is an appropriate course. 14. A question has been raised as to whether that approach is affected by s 56 of the Civil Procedure Act 2005 (NSW) requiring a court, in exercising a discretionary power, to facilitate the "just, quick and cheap resolution of the real issues in the dispute or proceedings": s 56(1) and (2). Clearly the provision imposes substantial obligations on parties and lawyers as well as the courts; it is not merely exhortatory: compare Migration Act 1958 (Cth) s 420, discussed by Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (FCA, 6 May 1997, unrep) approved by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [106]-[109]. It has been suggested that s 56 might warrant courts striking out proceedings on "less substantial grounds" than those stated in General Steel: Commonwealth v Griffiths [2007] NSWCA 370, at [155] (Young CJ in Eq). In the present case, the primary judge referred to this possibility, but did not rely upon it. Another view might be that s 56 does not reduce the conditions for the engagement of the power conferred by r 13.4, but limits the circumstances in which the court, satisfied that the power is available, might be inclined to refuse relief on discretionary grounds.
Placing reliance upon Bott, the respondent submitted that a case does not have to be hopeless to disclose no reasonable cause of action, with reference to Spencer v The Commonwealth (2010) 241 CLR 118 at [52].
What is clear from the authorities is that a case should not be dismissed on the basis that there is no reasonable cause of action quickly and a party seeking to have a matter dismissed must reach a very high threshold before a party will be denied the opportunity to have their case heard.
For the respondent to succeed in having the matter dismissed on the basis that there is no reasonable cause of action disclosed, the principles with respect to the question of leave to appeal are relevant. These are well settled and noting the oft-quoted passages from Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 at SJ and Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 at [12]-[13]: 1. Leave will not be lightly or automatically granted; 2. Leave will not usually be granted unless the appellant demonstrates that the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application or raises issues going to the proper administration of justice; 3. Leave will rarely be granted unless there is at least an arguable case of appealable error; 4. Leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence (see also, for example Box Valley Pty Ltd v Price (2000] NSWIRComm 117).
These principles were recently restated in Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012 at [22] and authorities cited therein. We will apply these principles to the case at hand.

The respondent's evidence and submissions

The Respondent relied upon an affidavit sworn by Mr David Yuille filed 11 March 2020 in support of the Notice of Motion (the Yuille affidavit). Mr Yuille is a Senior Employee Relations Officer employed by the Department of Communities and Justice. In his affidavit, Mr Yuille deposed to the background of the proceedings, annexing relevant documents, including its submissions in support of the respondent's Notice of Motion.
In addition, the respondent relied upon the affidavit of Ms Amelia Rogers sworn 1 April 2020 (the Rogers affidavit). In the Rogers affidavit, Ms Rogers describes herself as a Graduate, employed by the State Government and on rotation to the respondent in its Industrial Relations Team at relevant times.
Ms Rogers gives evidence relating to the respondent's non-compliance with the Commission's directions with respect to the filing of the respondent's Notice of Motion on 20 March 2020. We have referred to this evidence below.
The respondent argues that his Notice of Motion to dismiss the appeal proceedings due to the appellant's failure to prosecute the appeal with due dispatch should succeed because of the conduct of the appellant in failing to prepare the Appeal Books. The respondent also refers to the appellant's assertions that he will not take any further action at all in relation to the appeal. Accordingly, the respondent argues, in summary, the matter should be dismissed for the following reasons: 1. Although the appellant is unrepresented, he has put both the Commission and respondent to the time and cost of dealing with the proceedings when he does not commit to carrying out the most basic of functions expected of any litigant. 2. The appellant has indicated that he does not intend to take any further part in prosecuting the appeal through his correspondence to the Commission in respect of the directions hearing of 24 February 2020 and in his letter to the Commission dated 28 February 2020. 3. Although the delay in the proceedings caused by the appellant's non-compliance is not lengthy as yet, the appellant has indicated unambiguously that he does not intend to take any further steps effectively beyond filing his Application for Leave to Appeal and Appeal and there is no sign of the prejudice this causes abating. 4. Apart from filing the Application for Leave to Appeal and Appeal and restating uncontroversial case law, the appellant's only contribution to the appeal proceedings has been to make baseless allegations against both the Department and Commission. 5. There would be no prejudice to the appellant in dismissing the appeal proceedings as it has no merit. 6. Although the appellant is representing himself, he is subject to sections 56-60 of the Civil Procedure Act.
With respect to the respondent's argument that the appeal should be dismissed on the basis that no reasonable cause of action is disclosed, the respondent argued that none of the matters raised by the appellant could possibly reach the threshold required for the Commission to grant leave to appeal because the law with respect to constructive dismissal is well settled and the Decision is well reasoned and consistent with accepted authority and reasonably open on the evidence.
The respondent argues that the grounds for leave to appeal to do not support a basis upon which leave would be granted to the appellant, noting: 1. grounds 2 and 4 suggest prejudice against the appellant where there is "not the merest hint of any bias or impropriety"; and 2. grounds 1 and 3 suggest the appellant did not receive a fair trial or that evidence was ignored by the Commissioner and that upon a fair reading of the Decision, these grounds are devoid of merit.
With respect to the substantive appeal, the respondent argues that there is no reasonable basis upon which the appellant could succeed. We have considered the respondent's submissions with respect to this aspect of the respondent's Notice of Motion in greater detail below.

The appellant's submissions

The appellant filed submissions with respect to the respondent's Notice of Motion on 27 March 2020. The appellant argues, in summary, that the respondent's Notice of Motion should be dismissed on the following procedural grounds: 1. the respondent's Notice of Motion did not comply with ss 63(1) and 63(3)(a) of the Civil Procedure Act as it was filed at Woy Woy Court on 20 March 2020, four days out of time; and 2. the Notice of Motion should be dismissed pursuant to rule 12.7(1) and (2) of the UCPR because the respondent has repeatedly not complied with the rules and orders of the Commission.
With respect to the Decision, the appellant's complaints are, in summary, that the Commission at first instance: 1. did not consider the substantive matter of his application before dismissing it; 2. failed to give him an opportunity to provide the Commission with facts and evidence on oath; 3. erred by concluding that his claims were not supported by evidence; 4. excluded photographic evidence in relation to his application; 5. "deliberately ignored and manipulated to his disadvantage" his evidence that he held a grave concern with respect to his safety; and 6. denied him access to the "three months Employees Survey" by the Commissioner at first instance and the respondent and had this been provided "my claim of Unfair/Constructive dismissal could have been upheld."
The appellant argued that his appeal has significant public importance and the wrong done by the respondent and the Commission at first instance will only be corrected by dismissing the respondent's Notice of Motion and allowing him to be heard with respect to the appeal.

The respondent's submissions in reply

The respondent filed his submissions in reply on 9 April 2020 (the respondent's reply submissions). The respondent's reply submissions acknowledge that it is regrettable that the respondent's Notice of Motion was filed four days late for the reasons contained in the Rogers affidavit, however, argue that this should not lead to the respondent's Notice of Motion being dismissed.
With reference to s 63 of the Civil Procedure Act, the respondent argues that this is not a case where the Commission would exercise its discretion to dismiss the matter due to the late filing of the respondent's Notice of Motion and further, by responding to the material filed (albeit late), the appellant had effectively waived his right to submit that the matter should be dismissed. The respondent similarly submits that the appellant's claim that the matter should be dismissed pursuant to rule 12.7 should not be accepted because there has not been repeated failure to comply with the Commission's directions and the failure to file the respondent's Notice of Motion within time did not impact on the appellant's capacity to meet the claims of the motion.
The respondent also notes the appellant's silence with respect to his own continued non-compliance of the directions made by the Commission with respect to the appeal.

The appellant's reply

The appellant addressed the respondent's reply submissions by way of letter to Chief Commissioner Constant on 17 April 2020 (the appellant's response submissions).
The appellant's response submissions reassert that the respondent has repeatedly failed to comply with the Commission's orders, directions and rules and on this basis the respondent's Notice of Motion should be dismissed. In this regard, the appellant pointed to the respondent again breaching the Commission's orders of 24 February 2020 in that it did not reply to the appellant's material within one week of receipt of the appellant's material; instead, six days later than directed.
The appellant also raised doubt as to whether the Rogers affidavit was sworn pursuant to the NSW Oaths Act 1900 (NSW) as it had been witnessed by a Justice of the Peace, Mr Neal Rogers, having the same surname as the deponent. The appellant references a document titled the "Justice of Peace Handbook" where it is stated that, "It is not advisable for you to witness or certify a document for a member of your family."

Submissions with respect to s 63(3) of the Civil Procedure Act

As set out above, at the hearing of the respondent's Notice of Motion, the Full Bench provided the respondent an opportunity to be heard on whether or not it would be appropriate for the Full Bench to consider dismissing the matter pursuant to s 63(3) of the Civil Procedure Act. The respondent submitted that it would be open to the Commission to dismiss the matter pursuant to s 63(3), noting that there has been a failure by the appellant to comply with directions as described by s 63(1).
The following directions was made by the Full Bench on 4 May 2020: 1. The name of the respondent be amended to "Industrial Relations Secretary (Department of Communities and Justice)" pursuant to s 50 of the Government Sector Employment Act 2013 (NSW). ….. 3. As the Full Bench at the hearing of the Motion, granted leave to the respondent to amend the Notice of Motion to include at A of the Notice of Motion the additional Order sought being: In addition, or in the further alternative that the Appeal be dismissed pursuant to s 63(3) of the Civil Procedure Act 2005 (NSW) the appellant may if the appellant wishes, file and serve written submissions dealing with the Order sought by the respondent pursuant to s 63(3) of the Civil Procedure Act 2005 (NSW) only, within 14 days of receipt from the Commission of the transcript of the hearing on 4 May 2020; 4. The respondent may file and serve within 7 days of receipt of any submissions filed by the appellant in accordance with Direction 3, written submissions in response to the appellant's further submissions dealing with the Order sought pursuant to s 63(3) of the Civil Procedure Act 2005 (NSW).
On 19 May 2020 the appellant filed a submission in answer to direction 3 of the Full Bench (the appellant's supplementary submissions). On 21 May 2020, the respondent filed a submission in reply to the appellant's supplementary submissions (the respondent's supplementary submissions).
The appellant's supplementary submissions go beyond the scope of the direction given by the Full Bench, seeking to retrospectively oppose orders 1 and 3 above.
The appellant argued in the appellant's supplementary submissions that it was inappropriate or improper for the Commission to raise the issue of whether the respondent had considered relying upon s 63(3) of the Civil Procedure Act in the Notice of Motion. The respondent contended in the respondent's supplementary submissions that it is proper and common for judicial officers to raise issues with parties in this manner, and that in circumstances where the appellant was provided with an opportunity to address the Commission on those matters with the benefit of the transcript, he has no legitimate complaint. We accept the respondent's submissions on this point.
Notably, the appellant's supplementary submissions do not address the appellant's failure to comply with the Commission's directions. Rather, he states that he is "strictly following the rules and procedures of the Industrial Relations Commission". This submission is difficult to reconcile with the history of these proceedings summarised under "Background" above.
In respect to his participation in the appeal proceedings, the appellant submits: 1. unlike the Commission and the respondent he does not have the resources to conduct a teleconference or videoconference; and 2. that his health, the traumatising experience since filing his unfair dismissal application and the COVID-19 environment are among the many reasons why he is unable to appear in person or via teleconference.
Although the appellant states that he is "eager and willing to cooperate" in the appeal proceedings, he does not give any indication that he will comply with directions made by the Commission to facilitate the hearing of the appeal proceedings.

Should the respondent's Notice of Motion be dismissed because of the respondent's non-compliance with the Commission's directions?

The appellant argues that the respondent's Notice of Motion should be dismissed because pursuant to rule 12.7(1) and (2) of the UCPR and s 63 of the Civil Procedure Act.
The appellant says that the respondent has repeatedly failed to comply with the Commission's directions, pointing to the respondent's late filing of: 1. The respondent's Notice of Motion, filed 20 March 2020, four days late. 2. The respondent's response to the appellant's reply to the respondent's Notice of Motion, six days later than was required. 3. The respondent's reply submissions with respect to the appellant's Notice of Motion, one day later than the Commission's directions required.
The circumstances surrounding the respondent's failure to comply with direction to file and serve the respondent's Notice of Motion is explained in the Rogers affidavit. We note the appellant's objection to the Rogers affidavit, namely that it may have been witnessed by a relative of the deponent. The appellant did not require the deponent for cross-examination, nor adduce any evidence to contradict the evidence contained in the Rogers affidavit. We accept the Rogers affidavit as a frank account of how the respondent's Notice of Motion came to be filed late.
Accordingly, we find that the respondent tasked a graduate officer with filing the respondent's Notice of Motion and the Yuille affidavit, which attached the respondent's submissions within the time directed by the Commission, on 11 March 2020. As a result of an administrative error, the respondent's Notice of Motion was not filed on 11 March 2020 and instead was filed on 20 March 2020 after the issue was identified, four days later than directed by the Commission. The Commission accepts that whilst this was unfortunate, from time to time such errors do and will occur.
We reject the appellant's submission that the Commission should exercise its discretion to dismiss the respondent's Notice of Motion because of this failure to comply with the Commission's direction as a consequence of the late filing of the respondent's Notice of Motion. In doing so, we observe that the lateness was due to an administrative error; the respondent filed the Yuille affidavit attaching the respondent's submissions within time and that the appellant was placed on notice of the substance of the contentions to be raised in the respondent's Notice of Motion. There was no prejudice to the appellant in the late filing of the respondent's Notice of Motion as demonstrated by the fact of the appellant filing submissions referred to herein.
With respect to the appellant's assertions that the respondent has repeatedly not complied with the Commission's directions, we note that there have been three breaches of the respondent of the Commission's directions.
Whilst the respondent should have either complied with the Commission's directions or otherwise approached the Commission seeking an amendment to the directions with which he did not comply, we are not persuaded that the Commission should exercise its discretion to dismiss a matter because of these breaches. In this regard, we particularly note that the appellant does not point to any prejudice suffered by him as a consequence of this late filing and we can see none.

Should the appeal proceedings be dismissed?

We agree with the submissions of the respondent as to why the appeal should be dismissed for want of due dispatch as set out above at [39].
While the appellant seeks the respondent's Notice of Motion be dismissed for its failure to comply with the Commission's directions, he remains in breach of the directions issued by the Commission to file the Appeal Books in these proceedings. The appellant has made plain in his communication with the Commission that he does not intend to comply with the direction of the Commission or participate any further in the matter: see [17]-[18] and [22] above.
If the matter were to proceed as the appellant suggests, there would be no Appeal Books and no submissions to understand the appellant's complaints about the Decision. Alternatively, the costs associated with producing the Appeal Books would be shifted from the appellant to either the respondent or the Commission in circumstances where neither will have the benefit of the appellant's further participation in the proceedings.
The appellant has an obligation, even though he does not have representation, to comply with the Commission's directions and participate as required by the Commission in the appeal that he has commenced. It is not for the Commission, nor the respondent to anticipate or guess what his case might be. It is not for the appellant to tell the Commission what directions he will and will not comply with and how the appeal proceedings will be conducted. We consider that the position the appellant has taken with respect to his refusal to file the Appeal Books and participate any further in the proceedings runs contrary to the objects of the Civil Procedure Act to obtain, "the just, quick and cheap resolution of the real issues in the proceedings", the "efficient use of available judicial and administrative resources" and "resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute".
We also consider that there will be little prejudice to the appellant in dismissing the appeal proceedings because, for the reasons set out below, his appeal is unlikely to succeed.
The appellant has not filed a narrative with respect to why leave to appeal should to be granted by the Full Bench. However, we have considered the submissions made by appellant in the context of the respondent's Notice of Motion on why leave to appeal should be granted.
In Grounds 2 and 4 of the appellant's reasons why leave to appeal should be granted, he argues that: 1. the appeal raises the question of the impartiality, prejudice and bias of the Commission given the Secretary of the respondent is also the Secretary of the Justice Department which the Registry of the Commission is a part of; and 2. the Industrial Registrar and staff of the Industrial Registry are part of the proper administration the Industrial Relations Act 1996 (NSW) and he is aggrieved by the alleged harassment, bullying, lack of transparency and courtesy he experienced. The ill-treatment he allegedly received is another reason for which leave to appeal should be granted.
The respondent to these proceedings is the Industrial Relations Secretary, and not the Secretary of the Department of Communities and Justice. However, as the appellant is self-represented this is not a distinction on which we could properly reject his submissions. We have instead considered his underlying grievances.
The appellant misapprehends the role of the Commission as a statutory tribunal and the work of Registry staff who are employed to assist the Commission in its functions. The Decision was made by the Commissioner in the discharge of the Commission's statutory functions with which he has been appointed. Even had the appellant been subjected to the ill-treatment of which he complains, it does not demonstrate any prejudice by the Commissioner in the exercise of the Commission's functions.
In any event, taking the appellant's assertions at their highest, he has not demonstrated that he was subjected to any bias, prejudice or impartiality alleged against the Industrial Registrar or Registry staff. Rather, he seeks to find offence and draw inferences of bad faith from what must be regarded as benign communications.
In Grounds 1 and 3 of the appellant's reasons why leave to appeal should be granted, assert that he: 1. did not receive a fair trial; and 2. there will be a tragic miscarriage of justice as the inhumane treatment and the safety to his life he addressed in his unfair dismissal application were ignored, excluded and trivialised by the Commissioner.
There is nothing currently before the Commission that would persuade us to conclude that that the appellant did not receive a fair trial and that his claims were ignored, excluded and trivialised. To the contrary, the Commission at first instance appears to have adopted an orthodox approach to the determination of the issue of whether the appellant was constructively dismissed. Not only did the Commissioner take note of the appellant's evidence, he took it at its highest in applying the authorities to the factual circumstances of the case as set out below.
With respect to the substantive appeal, the appellant lists 13 grounds of appeal in the Application for Leave to Appeal and Appeal. In summary, the grounds complain of bias on the part of the Commissioner; a lack of procedural fairness being afforded by the Commission to the appellant; and too little or not enough weight being given to the appellant's evidence and submissions in the Decision.
The respondent argues that there is no reasonable basis upon which the appellant could succeed on these grounds, because, in summary: 1. the Commissioner clearly identified the issue of whether the termination of employment had been brought about by a constructive dismissal or a resignation and gave the appellant every opportunity to respond in relation to this matter so it could not be put that there was a denial of procedural fairness. 2. ln [30]-[41] of the Decision the Commissioner: 1. refers to the leading authorities in this area of the law at [30]-[31]; 2. distils the main facts (at [33]) including that the appellant had sent an email refusing an offer of a further five weeks employment in early August 2019; 3. correctly states the legal principle arising from Allison v Bega Valley Council (1995) 63 IR 68 at [35]; 4. analyses the evidence, taking that evidence at its 'highest' when assessing the appellant's claim at [36]-[40]; and 5. determines, by applying accepted authority to these facts, that Bizuneh had resigned of his own volition at [41].
Based on the material currently before the Commission, it is not at all clear how the appellant could succeed on the grounds he relies upon and his prospects of succeeding on appeal are low. This is particularly the case given the appellant has indicated that he does not intend to participate in the proceedings any further beyond what he has already contributed.
Accordingly, we would allow the respondent's Notice of Motion on the bases that: 1. the appellant has not prosecuted the matter with due dispatch, taking into account the conduct of the appellant in not complying the Commission's directions, and his position that he will not do so in the future and the Commission should determine the matter on the material presently before it; and 2. our finding that there would be little prejudice to the appellant in the matter being dismissed given the Full Bench cannot discern from the material before it, any grounds on which leave to appeal would be granted appeal and therefore the appeal has limited prospects of succeeding.
Given our finding in respect of rule 12.7 of the UCPR, it is not necessary to make findings in respect of s 63(3)(a) of the Civil Procedure Act. We observe, however, for the sake of completeness that for the same reasons we have decided to dismiss the matter pursuant to rule 12.7 of the UCPR, we would have dismissed the matter pursuant to s 63(3)(a) of the Civil Procedure Act, noting that this would be consistent with the overriding purpose of the legislation as provided for in s 56.

Orders

The Full Bench orders: 1. The appeal proceedings are dismissed pursuant to rule 12.7 of the UCPR.

Amendments 30 March 2023 - Correction made to citation at [32] from (2010) 214 CLR 118 to (2010) 241 CLR 118. 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: 30 March 2023

Migration Act 1958(Cth)s 420, discussed

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