On 7 June 2024, on the application of the Respondent, the City of Parramatta Council (Council), I dismissed these proceedings due to the Applicant's failure to prosecute the proceedings with due despatch. These are my reasons for concluding that the proceedings had not been prosecuted with due despatch and that the dictates of justice required that the proceedings be dismissed.
On 27 February 2024 the Applicant, Tracy Cavanagh, filed an Unfair Dismissal Application pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (IR Act). The Applicant had been dismissed from her employment as a store supervisor with the Council on 7 February 2024 for serious breaches of the Council's Code of Conduct and various Council policies. She sought reinstatement and compensation.
The Unfair Dismissal Application was filed on the Applicant's behalf by the New South Wales Local Government Clerical Administrative Energy Airlines and Utilities Union (USU) and was listed for conciliation and directions before me on 11 March 2024. The matter was unable to be resolved and I made the following orders to prepare the matter for arbitration:
1. The applicant is to file and serve all written statements to be relied on for each witness, an outline of submissions and any other relevant documentation by 4.00pm on 4 April 2024.
2. The respondent is to file and serve all written statements to be relied on for each witness, an outline of submissions and any other relevant documentation by 4.00pm on 29 April 2024.
3. The applicant is to file and serve any evidence in reply and submissions in reply by 4.00pm on 13 May 2024.
4. The matter is listed for a directions hearing on 17 May 2024 at 10:00am.
5. Without leave of the Commission no party will be permitted to rely on any evidence which is filed later than the time directed in this timetable.
6. All evidence in the proceedings will be given by way of signed written statements and other relevant documents filed and served by a party.
7. The parties must include in or with their written statements all matters and documents on which they rely or which they allege are relevant to the proceedings.
8. Without the leave of the Commission, cross examination of a witness will not be allowed unless, at least 7 days prior to the hearing, notice has been given to the opposing party that a witness is required for cross-examination.
9. Without the leave of the Commission, no summons for the production of documents may be made returnable less than 3 weeks prior to the date set for the hearing/arbitration of the matter.
10. The parties are excused from compliance with Practice Note 32 as regards the length of statements to be relied on by each witness and the documents referred to in those statement.
Cavanagh v City of Parramatta Council [2024] NSWIRComm 1036 | Case summary | Zoe
To date, the Applicant has failed to file and serve any material upon which she proposes to rely in support of her application.
On 12 April 2024 the USU filed and served a Notice of Intention to File a Notice of Ceasing to Act. Eleven days later, on 23 April 2024, the USU filed and served a Notice of Ceasing to Act.
To date, no Notice of Change of Solicitor/Agent or Notice of Appointment of Solicitor/Agent has been filed and consequently the Commission has proceeded on the basis that the Applicant is unrepresented.
On 29 April 2024, the Council filed a Notice of Motion, supported by an affidavit of Issac Mann sworn on 29 April 2024, seeking an order that the proceeding be dismissed pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) on the basis that the proceeding had not been prosecuted with due despatch. Mr Mann is an industrial officer and solicitor employed by Local Government NSW, an Industrial Organisation of Employers registered pursuant to Part 3 of Chapter 5 of the IR Act. Mr Mann is the solicitor on the record for the Council.
Mr Mann deposed to the procedural history of the matter I have referred to above, as well as some additional information which I will refer to shortly.
The Notice of Motion was listed for return before me on 2 May 2024. On that day, upon discovering that neither the Applicant, nor any representative of the Applicant, was in attendance, Registry staff telephoned the Applicant and arranged, with my leave, for her to attend on the return of the Motion by telephone. It transpired that although the Applicant had been sent soft copies of the unfiled Notice of Motion and affidavit of Mr Mann, copies of the filed versions had not yet been served. In those circumstances I was not prepared to proceed with the hearing of the Motion and instead I made the following directions:
1. Direct the Respondent to serve a copy of the filed Notice of Motion and affidavit in support on the Applicant by email by no later than 3 May 2024.
2. Direct the Applicant to file and serve any evidence she wishes to rely upon in answer to the Respondent's Notice of Motion by no later than 10 May 2024.
3. The motion is listed for hearing on 16 May 2024 at 2:00pm in person.
Before making the above directions, I explained to the Applicant that:
"The City of Parramatta has put on this motion to have your proceedings dismissed, for the reasons I said, you were meant to file evidence back, I think, on 4 April. We've not received any correspondence from you to indicate whether you've got any alternative representation or whether you're now acting for yourself, which you're entirely able to do, if you wish to. The motion to dismiss your proceedings will not be heard today because it seems you've not been properly served with the documents, including the evidence, the affidavit of Mr Mann, which sets out the reasons why they say that proceedings should be dismissed and you need to be given an opportunity to respond to that, if you wish.
So what I propose to do is to set a deadline for you to put on any evidence you want to put on, to explain why your proceedings should not be dismissed. You need to explain what's actually occurred since you started the proceedings and why it is that the evidence wasn't filed by 4 April and what's actually occurred, such that the proceedings have not been properly conducted up to this point, so basically, to give me a reason for the delay and I can then consider that reason and whether indeed then I think that the proceedings should be dismissed or not."
On 10 May 2024 the Registry received an email from the Applicant, a copy of which was also sent to the Council's solicitor, which read as follows:
Good Afternoon All
I intend to proceed with the hearing on 16th May 2024 where I will be representing myself in this matter.
Isaac can I please receive printed hard copies of all evidence put forward by council at all stages of the investigation. I believe I requested this on multiple occasions during the investigation but had only received electronic copies that were unable to be open (sic) or unable to be read.
Please arrange delivery to my address [redacted].
Kind regards
Tracy Cavanagh
The content of this email made me concerned that the Applicant misunderstood the nature of the hearing scheduled on 16 May 2024, so I arranged for the Registry to send an email to the Applicant, copied to the Council, explaining that the hearing on 16 May 2024 would not be a hearing of the Applicant's claim for unfair dismissal, but rather a hearing of the Council's motion to have the proceedings dismissed on the basis that they had not been prosecuted with due despatch and that if the Applicant intended to rely on any evidence in response to the Council's Notice of Motion she would need to explain why her evidence was not filed by 10 May 2024, as directed.
On 14 May 2024 the Applicant sent an email to me, via the Registry, with a copy sent to Mr Mann, although for reasons which are unknown, the email was not received by the Registry until it was resent by the Applicant on the morning of 16 May 2024. The email commenced as follows:
Dear Commissioner McDonald
Apologies for my mistakes in the process so far. I do not intend to provide any new witness statements at this stage and only request to be given the opportunity to explain what occurred at council.
The information below is what I was intending to present to the commission.
I am sorry for the lateness of my response to the correspondence and failing to meet the deadline set down for my response. I have struggled to function in an organised manner since my termination from City of Parramatta as the decision by council caught me completely unprepared and I have been at a loss of what to do professionally and personally. Due to my unprepared and conflicted mindset, I was not able to decide on what course of action I should take when provided with options by council.
The reason for me underestimating the potential consequences of this process and council's decision are detailed below -
The email went on to explain various matters relevant only to the Applicant's substantive claim for unfair dismissal.
The motion was called on for hearing at 2pm on 16 May 2024. At that time the Applicant appeared unrepresented and Mr Mann appeared for the Council.
In light of Ms Cavanagh's remarks in her email of 14 May 2024 about not being able to decide what course of action she should take "when provided with options by council", (which I took to refer to offers of settlement made during the conciliation conducted by me on 11 March 2024, less than a month after her employment had been terminated), I considered that there could be some benefit in attempting further conciliation of the matter. I proposed this to the parties and they each agreed to proceed with further conciliation. I made it plain to the parties that if conciliation was not successful, the hearing of the motion would resume.
Conciliation of the matter ensued for the whole of the afternoon of 16 May 2024. As I noted on the record at the end of the day, the matter appeared to be on the cusp of resolving, subject to the Applicant having the opportunity to seek further legal advice regarding the terms of a proposed Deed of Release, so I made the following directions:
1. I stand the Respondent's Notice of Motion over to 7 June 2024 at 2pm.
2. I grant the Respondent liberty to restore the motion to the list before 7 June 2024 on short notice.
3. I grant the Applicant leave to file a Notice of Discontinuance by email.
After making those directions I made the following statement:
"Let me make it clear, though, that if the motion proceeds to be listed on the 7th or earlier then I will proceed on that day with the motion and unless both parties are in agreement, I will not be engaging in conciliation again."
As I will shortly explain in more detail, on 22 May 2024 the Applicant informed the Council that she wished to "continue with the process" and accordingly on 23 May 2024 the Registry received a request from the Council to restore the Motion to the list before 7 June 2024. Accordingly, I listed the Motion for hearing on 30 May 2024 at 2pm.
On 30 May 2024 at around 1.11pm Mr Mann emailed the Registry to request an adjournment of the Motion for two weeks as the parties had "agreed in principle to settle the Applicant's claim for relief for unfair dismissal". Mr Mann confirmed that he had spoken with the Applicant and had "explained the adjournment of the Motion for two weeks" and that she was "fine with this approach". In the circumstances I made the following orders in chambers:
1. By consent the hearing of the respondent's notice of motion on 30 May 2024 is vacated.
2. The respondent's notice of motion is listed for hearing on 7 June 2024 at 3:00pm in person.
No Notice of Discontinuance or any other document was filed prior to 7 June 2024.
[2]
Evidence on the Motion
When the matter was called on 7 June 2024 Mr Mann appeared for the Council and moved on the Motion. There was no appearance for Ms Cavanagh. Her name was called three times outside of the courtroom. Mr Mann read his affidavit of 29 April 2024 and a further affidavit sworn on 6 June 2024.
Conscious of my obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, and to ensure that a complete account of events leading up to the hearing of the motion was properly before the Commission, at my request, the Council also tendered:
1. the Notice of Orders Made, sent to both parties by email by the Registry, setting out the orders made on 2 May 2024;
2. the email chain commencing with the Applicant's email to Mr Mann, copied to the Registry, dated 10 May 2024, the detail of which is setting out at paragraph [11] above; the Registry's email to the parties of 13 May 2024, which is referred to at paragraph [12] above; and concluding with the Applicant's email to me, copied to Mr Mann, of 14 May 2024, which is discussed at paragraphs [13] and [14] above;
3. the emails between Mr Mann and the Registry of 30 May 2024, regarding adjournment of the Notice of Motion, all of which were copied to the Applicant;
4. an email from the Registry to both parties dated 30 May 2024, advising of the orders I made in chambers on 30 May 2024 and noting that the listing on 7 June 2024 would be automatically vacated and the file closed upon the filing of a Notice of Discontinuance; and
5. a copy of the Notice of Orders Made, and Appointment for Hearing, sent by the Registry to both parties by email on 30 May 2024.
In addition to the procedural history I have already outlined above, Mr Mann gave the following additional evidence in his two affidavits in respect of his communications with the Applicant:
1. on 23 April 2024 Mr Mann wrote to the Applicant by email noting that the USU had filed a Notice of Ceasing to Act, enquiring as to the Applicant's intentions for the proceedings in circumstances where the Applicant's evidence had not been filed by 4:00pm on 4 April 2024 pursuant to the orders of the Commission and notifying the Applicant that the Council intended to file a motion that the proceedings be dismissed for want of due despatch in accordance with UCPR r 12.7 on 29 April 2024;
2. later that same day, after sending the email, Mr Mann spoke with the Applicant by telephone, during which he repeated the matters set out in his email and enquired whether she had found alternative representation. The Applicant informed Mr Mann that she was aware that her USU representatives no longer acted for her, that she would read Mr Mann's email, that she intended to pursue the matter and that she had spoken with a solicitor who might be sending her details of an industrial relations lawyer, but she didn't know;
3. during his telephone conversation with the Applicant Mr Mann invited the Applicant to contact him if she had any questions and while he could not give her legal advice, he was willing to assist her, as an unrepresented litigant, in navigating the Commission's processes;
4. as at 29 April 2024 (the date the Motion was filed) Mr Mann had not received any further contact from the Applicant;
5. on 21 May 2024 (after the conciliation held on 16 May 2024 when the parties had agreed to the terms of a Deed of Release to resolve the matter, subject to the Applicant having the opportunity to seek further legal advice regarding the matter and the terms of the Deed), Mr Mann emailed the Applicant and asked her if she had had the opportunity to obtain further advice on the terms of the Deed;
6. on 22 May 2024 the Applicant emailed Mr Mann stating: "I have had legal advice and wish to proceed with the process" and requesting "a hard copy of all photos [apparently related to the substantive claim] as early as possible.";
7. on Thursday 30 May 2024, at approximately 11:30am, shortly before the Notice of Motion was set to be heard, the Applicant contacted Mr Mann by phone and informed him that she wanted to agree to resolve the proceedings pursuant to the Deed of Release;
8. on 30 May 2024 Mr Mann emailed the Applicant, requesting she confirm in writing "that we are agreed in principle on the terms of the Deed" and advising that he would "then write to the IRC advising them of the agreement and telling them to set aside this afternoon's hearing";
9. at 12:42pm on 30 May 2024 the Applicant emailed Mr Mann stating: "I have agreed to sign the deed document";
10. on 31 May 2024 Mr Mann emailed copies of the Deed and a Notice of Discontinuance to the Applicant for her signature, together with a Statement of Service;
11. on 3 June 2024 Mr Mann left a voicemail for the Applicant to check on how she was going signing the Deed and Notice of Discontinuance and followed this up with an email in which he also stated that he was "happy to assist if anything is unclear or you are having any technical difficulties". He also informed the Applicant that the Notice of Motion was listed on 7 June 2024 at 2:00pm and attached a copy of the Notice of Orders Made (on 30 May 2024) and advised that the Motion would be heard if a Notice of Discontinuance was not filed;
12. on 4 and 6 June 2024 Mr Mann again attempted to phone the Applicant to inquire whether she had signed the documents, however the Applicant did not answer and he left a voicemail message for her on each occasion;
13. on 6 June 2024 Mr Mann emailed the Applicant stating:
1. he had attempted to contact her many times regarding the signing of the Deed of Release and Notice of Discontinuance;
2. that, due to her failure to answer or respond to any contact, the Council believed that she had abandoned the in-principle agreement to resolve the proceedings;
3. that the Council would still honour the agreement if she provided a signed copy of the Deed prior to the Motion hearing on 3:00pm on 7 June 2024; and
4. that the Council would otherwise press the Motion and request that the Commission dismiss the unfair dismissal proceeding for want of due despatch;
1. Mr Mann has received no contact from the Applicant since her email sent on 30 May 2024.
[3]
Consideration
It seemed to me possible that the Applicant's claim the subject of this proceeding was resolved prior to the hearing of the Council's motion. The Council of course says that is not the case, due to the failure of the Applicant to sign the Deed of Release. In any event it was not a matter I needed to decide as there was no prejudice to the Applicant either way. If the proceedings settled by agreement on terms reflected in the Deed of Release, the parties proposed to file a Notice of Discontinuance. A discontinuance of proceedings does not, of itself, prevent an applicant from claiming the same relief in fresh proceedings, subject to the terms of any consent to the discontinuance: UCPR r 12.3. (In those circumstances the Deed itself would likely operate to bar the bringing of fresh proceedings.) Similarly, a dismissal for want due despatch does not, subject to the terms on which any dismissal order is made, prevent an applicant from bringing fresh proceedings or claiming the same relief in fresh proceedings: s 91 of the Civil Procedure Act 2005 (NSW) (CPA). Of course in either case, the ability to bring fresh proceedings may be curtailed, as it would be in this case, by any applicable time limits to the bringing of proceedings.
Based on the evidence before me I was satisfied that:
1. the Applicant failed to file evidence and submissions by 4 April 2024 as directed and had not sought any extension of time for the filing of evidence and submissions, which remained unfiled as at 7 June 2024;
2. the Applicant failed to file evidence in opposition to the Motion by 10 May 2024 as directed, or at any time thereafter; and
3. the Applicant had failed to communicate satisfactorily with the Council throughout the matter.
As already observed, the Applicant failed to appear on the hearing of the Motion on 7 June 2024.
The only explanation proffered by the Applicant for her defaults was contained in her email to me of 14 May 2024. In that email she claims to have struggled to function in an organised manner since her employment with the Council was terminated. Despite this alleged impairment, which was otherwise unsupported by medical or other corroborative evidence, and despite the USU ceasing to act for her, the Applicant provided no evidence, informally or otherwise, of steps she had taken or proposed to take, to obtain assistance in prosecuting her claim.
As detailed above, the Applicant had abundant notice of the hearing of the Motion and had more than sufficient opportunity to file and serve evidence in opposition to the Motion, which evidence may have included details of the prejudice she would face if her claim were to be summarily dismissed.
I was satisfied on the evidence that the Applicant had failed to prosecute the proceedings with due despatch. The question I then needed to answer was: where do the interests of justice lie?
Prior to the introduction of the CPA, the power to dismiss proceedings for want of prosecution would only be exercised where there had been intentional and contumelious default or where there had 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. However, as Ward JA (as her Honour the President then was), explained in Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [102] (Emmett and Gleeson JJA agreeing) the introduction of ss 56-60 of the CPA modified this statement of principle, such that proceedings may now be dismissed for want of due despatch even where the default or delay is not intentional or contemptuous. The touchstone is the requirement stipulated in s 58 of the CPA for the Court (or in this case, the Commission) to act in accordance with the dictates of justice, guided by matters such as those listed in s 58(2)(b).
As Commissioner Newall noted in Kabir v Department of Family & Community Services [2016] NSWIRComm 1009 at [13] (with emphasis added):
"...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 rule 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 despatch. 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 despatch, are not penalised by parties who do not."
Relevantly, at [15], Commissioner Newall considered that the fact that the applicant in that case was unrepresented, did not excuse him from the operation of the CPA.
As I said in Poore v Commissioner of Police New South Wales Police Force [2022] NSWIRComm 1079 at [93]:
"Prosecuting proceedings in any court or tribunal is a serious business. It involves the use of significant public resources and seeks the invocation of powers by the court or tribunal which may have a significant impact on other people and entities. Anyone commencing proceedings must prioritise the prosecution of those proceedings to the best their resources and circumstances will allow."
In the present matter I was not satisfied that the Applicant had prosecuted her claim to the best her resources and circumstances would allow. The Applicant provided no evidence of her economic circumstances and had not suggested that they had impaired her ability to seek assistance in the prosecution of her claim. Even if I were to accept that the Applicant has struggled to function in an organised manner since her employment was terminated, this does not, absolve her from the requirement to take steps to comply with the Commission's directions and if need be, to obtain help in taking those steps. In short, the Applicant failed to provide cogent and compelling reasons for her failure to file evidence in accordance with the directions of the Commission. Her failure to appear at the hearing of the Motion was also unexplained and provided further evidence of the Applicant's failure to comply with her duty under s 56(3) of the CPA to participate in the processes of the Commission.
The lack of evidence concerning the Applicant's economic circumstances also diminished the weight I might have given to the prejudice the Applicant would suffer if the proceedings were summarily dismissed. There was no evidence before me as to what the loss of the ability to obtain the relief sought would mean to the Applicant, financially or otherwise. While it is possible that her personal circumstances are significantly impaired by her dismissal, it is equally possible that her circumstances may have improved since her dismissal.
While the Council led no evidence of the prejudice suffered or to be suffered by it if the proceeding were not dismissed, I accepted Mr Mann's oral submissions that:
1. the quality of the evidence that may be led in the proceeding will deteriorate over time;
2. that if the Applicant was ultimately successful in obtaining an order that she be re-instated to her position, this could cause difficulties in terms of operational requirements and working relationships, if re-instatement occurs a long time after her departure from the workplace, including by reason of the fact that the Council will have filled her position with another employee; and
3. the Council has and will bear additional costs by reason of the Applicant's defaults.
In the circumstances I considered that the prejudice to the Council occasioned by the ongoing failure of the Applicant to prosecute her proceeding appropriately outweighs any prejudice she may suffer from the summary dismissal of the proceeding. The Council had expended time and money in dealing with the Applicant's defaults. The Council had acted diligently throughout the matter and had offered to assist the Applicant to navigate the Commission's processes.
I was satisfied that the Applicant had failed to comply with her obligations under s 56(3) of the Civil Procedure Act and had failed to prosecute the proceedings with due despatch.
The balance of justice lay in the proceedings being dismissed.
Janet McDonald
Commissioner
[4]
Amendments
13 June 2024 - Corrections made to cover sheet
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Decision last updated: 13 June 2024