Bourot v New South Wales Department of Public Works and Services & Anor

RESPONDENT Mr S Benson of counsel CROWN SOLICITOR'S OFFICE LEGAL REPRESENTATIVES: Mr G De Courcey

AGENT REPRESENTING THE APPLICANT: Mr Gerard Crewdson

JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Wednesday 31 October 2001 Matter No IRC 5810 of 2000 PASCALE BOUROT v NEW SOUTH WALES DEPARTMENT OF PUBLIC WORKS & SERVICES & CENTRAL SYDNEY AREA HEALTH SERVICE Application under s 154 of the Industrial Relations Act 1996

INTERLOCUTORY JUDGMENT ON STRIKE OUT MOTION 1 The proceedings in this matter have their genesis in an amended application for declaration brought by the applicant Pascale Bourot against the respondents the New South Wales Department of Public Works and Services and the Central Sydney Area Health Service seeking certain declaratory relief under s 154 of the Industrial Relations Act 1996 ("the Act").

2 Section 154 of the Act is in the following terms: 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought.

3 The application seeks the making by this Court of the following declarations. a) That Pascale Bourot is and at all times since 1987 has been employed by the NSW Department of Public Works and Services and its predecessors. b) That the decision to refer Pascale Bourot for a Fitness to Continue Examination by the GMO on/or about 25 June 1998 by officers of the Department of Public Works and Services is void, invalid and of no effect. c) That the purported retirement of Pascale Bourot on or about the 2 September 1998 by the GMO and/or officers of the NSW Department of Public Works and Services is void, invalid and of no effect. d) That Pascale Bourot be entitled to be paid all emoluments pertaining to her position as a State Mail Service Officer (Teams) Level 1 (Mail Sorter) together with interest thereon and to retain all leave and other entitlements and interest thereon.

4 It will be observed that the jurisdiction of this Court under s 154 to make binding declarations of right is confined to those declarations which are "in relation to" a matter in which the Commission whether constituted as the tribunal or as this Court has jurisdiction.

5 The applicant is represented in the proceedings by Gerard Crewdson, who acts as her agent. Mr Crewdson is not legally qualified.

6 The amended application for declaration was filed in Court on 31 January 2001 and on that occasion leave was granted for the applicant's application to be amended.

7 On 26 April 2001 the Crown Solicitor's Office, acting for the respondents sought further and better particulars of the applicant's claim from Mr Crewdson. Mr Crewdson responded by letter dated 12 May 2001. He furnished certain particulars, which the respondents assert are not responsive in some respects to the particulars sought. That debate will be dealt with on a further occasion, and the substance of the debate does not form any part of these reasons for judgment. However, as will appear, the dates of the correspondence are relevant.

8 On 15 June 2001 the respondents filed a notice of motion seeking a number of orders. The first sought an order pursuant to rule 82 (1)(a) of the Rules of this Court that the amended application for declaration be set aside. The second order was sought in the alternative, namely that under rule 82(1)(h) this Court decline in its discretion to exercise its jurisdiction in the proceedings. A third order sought that the time fixed for the filing of the notice of motion be extended to the date of actual filing.

9 A further order sought in the notice of motion related to the contents of an affidavit filed by the applicant in the proceedings, the substance of which is to be argued on a further occasion.

10 On 26 June 2001 Mr Crewdson filed on behalf of the applicant a notice of motion seeking certain orders. Those which are relevant to these reasons for judgment are firstly an order that this Court decline in its discretion to exercise its jurisdiction to deal with the respondents' notice of motion of 15 June 2001 and secondly, in the alternative, an order that the respondents' notice of motion be wholly set aside.

11 The basis for the orders sought by the applicant was that the notice of motion filed by the respondents was not filed within the time limited by rule 79, that is within seven days of the service of the originating process on the respondents. An additional argument advanced by the applicant was that, in any event, this was not an appropriate time in the proceedings at which to deal with the respondents' notice of motion.

12 Under normal circumstances the matters raised by the applicant's notice of motion could have been considered by way of submissions made by the applicant at the hearing of the respondents' notice of motion. Given the manner in which the proceedings have developed, given the fact that the applicant has filed a notice of motion and given the fact that Mr Crewdson does not fully appreciate and understand all of the practices and procedures of this Court, it seemed preferable to deal with the applicant's notice of motion first because, if that succeeds, there would be no necessity to deal with the respondents' notice of motion.

13 In order to consider the principal submission it is necessary to refer to some of the rules of this Court.

82. (1) A tribunal may, on notice of motion filed by a respondent in accordance with subrule (2), by order: (a) set aside the originating process; or (b) set aside the service of the originating process on the respondent; or (c) declare that the originating process has not been duly served on the respondent; or (d) discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State; or (e) discharge any order extending the validity for service of the originating process; or (f) protect or release property seized, or threatened with seizure, in the proceedings; or (g) declare that the tribunal has no jurisdiction over the respondent in respect of the subject matter of the proceedings; or (h) decline in its discretion to exercise its jurisdiction in the proceedings; or (i) grant such other relief as it thinks appropriate.

(2) Notice of motion under subrule (1): (a) may be filed without entering an appearance; (b) must bear a note "The respondent's address for service is" and state the address; (c) must be filed within the time limited for entering an appearance.

(3) The making of an application under subrule (1) is not to be treated as a voluntary submission to jurisdiction.

15 Rule 82(2)(c) refers to the time limit for entering an appearance. That time is set out in rule 79 which is in the following terms: 79 (1) A respondent must enter an appearance before filing any document and within 7 days of service of any originating process on that respondent. (2) Notwithstanding subrule (1), where a matter is commenced by way of notice of motion a respondent must enter an appearance before the date appointed for any hearing or mention and before filing any document, except with leave of the tribunal.

16 By rule 88 this Court is given power to waive strict compliance with any procedural requirement or to exempt any party from compliance. Rule 88 is in the following terms: 88. (1) Application to a tribunal to waive strict compliance with any procedural requirement or to exempt any party from compliance with any such requirement either before or after the occasion for compliance arises, may be made by notice of motion or orally in the course of the proceedings and if made separately must, unless the tribunal otherwise directs, be supported by affidavit. (2) Subject to any direction of the Commission, the Presidential Member of the Contracts of Carriage Tribunal or the Chairperson of an Industrial Committee, the Registrar may extend the time fixed by these Rules for the lodging of any document or the doing of any act (whether or not that time has expired).

17 The respondents' notice of motion was accompanied by an affidavit in support. That affidavit asserted by way of belief that "the respondents would be put to a significant disadvantage if the orders as sought were not granted ….".

18 The affidavit filed in support by the respondents did not make any reference to the reason why the respondents had failed to file the notice of motion within the time limited by the rules.

19 It is not sufficient, in my opinion, for any party to proceedings before this Court to make an application for an extension of any time limitation fixed by the rules without some form of satisfactory explanation. Prima facie the times are fixed by the rules for good cause and must be complied with. Of course, in relevant circumstances, time may be extended, especially where no prejudice attaches by reason of the extension of time. However in the absence of any reason being advanced in support of an application for the extension of time, I see no reason why time should be extended automatically. No reason was advanced by counsel for the respondents during submissions other than that the delay flowed from the sequence of events which had occurred in the course of the litigation, the nature of the proceedings and the voluminous materials requiring inquiry. The amended application for declaration was filed on 31 January 2001, the respondents did not seek particulars from the applicant's agent until letter dated 26 April 2001 and the respondents' notice of motion was not filed until 15 June 2001. This time sequence requires more detailed explanation than was forthcoming.

20 As is clear from the provisions of rule 82(2), they are intended in the circumstances of these proceedings to be given some force and effect. The use of the word "must" in rule 82(2)(c) is to be contrasted with the permissive "may" in rule 82 (2)(a).

21 The principles to be applied in considering the provisions of rule 82 and the proper approach to the exercise of discretion are fully set out in the judgment of Wright J, President of this Court in Taudevin v Egis Consulting Australia Pty Ltd (1999) 97 IR 165. I respectfully adopt the manner in which his Honour has summarised the relevant principles in that judgment, and there is no need to repeat what his Honour has set out. In reaching my decision I have taken into account not only the matters referred to in para 19 of these reasons for judgment but also the fact that if the respondents are not granted an extension of time to file their notice of motion filed on 15 June 2001, this will not preclude them from advancing arguments as to jurisdiction, power and the exercise of discretion during the course of the substantive hearing of the proceedings. There does not appear to be any prejudice attaching to the respondents if their notice if motion is not dealt with. I take into account also the following matters: 1. The proceedings are complex and raise complex issues particularly with respect to the jurisdictional requirement that the declarations of right which are sought must relate to a matter in which the Commission however constituted has jurisdiction. In these circumstances the balance of convenience may well dictate that all of the relevant factual material be filed and be available to the Court when determining arguments going to jurisdiction and, indeed, power. In these circumstances the "appropriate time" at which to consider these matters may well be during the final substantive hearing. 2. The state of the evidence adduced by the applicant may require refinement. I am yet to deal with an application by the respondents to strike out a substantial part of the applicant's affidavit sworn in the proceedings on the basis that it is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive.

22 I refer also to the approach adopted by Boland J in Gibson v Western Sydney Area Health Service (2001) NSWIRComm 126. His Honour declined to grant an extension of time limited by rule 82 in circumstances where the party had offered no explanation for the delay.

23 I order that so much of the respondents' notice of motion filed on 15 June 2001 as seeks relief under paras 1, 2 and 3 be set aside and that costs be reserved.

24 The proceedings are stood over for further hearing to 10am on Monday 11 December next to deal with outstanding interlocutory issues. --------------------------

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