CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia

APPELLANT Ms M Painter of counsel SOLICITORS Leitch Hassan Dent Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr R Crow of counsel SOLICITORS PricewaterhouseCoopers Legal

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, Vice-President SAMS DP TABBAA C 26 March 2004 Matter No IRC03/6761 Garry Patrick Mealey and the Council of the City of Sydney Application by Garry Patrick Mealey to extend time to appeal and for leave to appeal and appeal against a decision of Deputy President Grayson given on 31.10.2003 in matter no. IRC 3807 of 2003 DECISION [2004] NSWIRComm 58

1 This is an application for leave to appeal and, if granted, an appeal against a decision of Deputy President Grayson given in transcript on 31 October 2003. The appellant, Mr Garry Patrick Mealey, was dismissed by the Council of the City of Sydney ('the respondent') on 1 July 2003.

2 The reasons for the appellant's dismissal are not materially relevant to the disposition of these proceedings. However, shortly stated the appellant was dismissed for misconduct in relation to excessive sick leave, unauthorised absences and a failure to notify of absences. The appellant's Union, the Federated Municipal and Shire Council Employees' Union, subsequently filed a claim of unfair dismissal on the appellant's behalf, pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act').

3 The appellant's unfair dismissal claim proceeded in the conventional way. After the Deputy President's unsuccessful attempt at conciliating a settlement of the claim, the matter was listed for arbitration and directions were issued in preparation for the hearing. The scheduled date for hearing was postponed as the appellant filed his evidence late (by five days) thereby producing a delay in the respondent's case; it being filed later than directed by the Commission. Despite some faint suggestion to the contrary, we do not consider that the adjournment of the hearing was seriously contested. In any event, the delay occasioned in the proceedings was ultimately only minor with the matter being listed on 31 October.

4 We observe that we do not consider that the appellant's failure in this regard was of such serious consequence as to have influenced the approach his Honour took to the eventual dismissal of the proceedings.

5 His Honour's decision on 31 October 2003 was in short form and we quote it in full: The Commission has before it an application to dismiss the application before the Commission, that is to say the substantive application seeking relief from an alleged unfair dismissal for want of prosecution. It is an unusual circumstance in which the Commission finds itself in that the matter has been through the various processes required by the Act. Conciliation was attempted without success shortly after the application was filed. Directions as to the filing and service of evidence were then made and a timetable was fixed for the hearing and determination of the issues between the parties. The matter was then listed as is the customary practice of the Commission as presently constituted on 7 October 2003 to ascertain readiness to proceed to hearing and compliance with directions to which I have earlier referred. The Commission was advised on 7 October 2003 that whilst the applicant's evidence had been filed there was a degree of lateness associated with the filing of that evidence, such that the respondent employer was unable to comply with the directions given as to the filing and service of its evidence. Those directions were varied to accommodate the circumstances to which I have referred and an application for adjournment was granted in the interests of allowing further time for the applicant's case to be fully prepared. The matter came on for hearing today and at the outset the Commission has been advised of the applicant's decision to dispense with the services of his union and to seek advice from legal representatives for that purpose. The applicant asks for a further adjournment of the proceedings. That adjournment, having been vigorously opposed was not granted. The applicant was then invited to begin his case. He declined and the Commission is now asked to in the circumstances to dismiss the application. It seems to me that for reasons best known to himself, Mr Mealey has decided not to present his case today, although one may note on the face of the documentation filed, the matter is ready to proceed, that is the applicant has filed the evidence upon which he wished to seek to rely and the Council has done likewise. The Commission has been taken to various authorities going to the exercise of discretion in relation to rule 146 of the Industrial Relations Commission Rules and it seems to me fundamental that each case turns on its own facts and circumstances. I am completely satisfied that the applicant has had sufficient opportunity to prepare and present his case and for reasons that are undisclosed to the Commission, other than the fact that he seeks alternative representation, he has chosen not to do so. In the circumstances I will accede to the application made by the employer and dismiss the application for want of prosecution. I make no order as to costs.

6 It will be readily apparent that his Honour's decision can be appropriately characterised as procedural in nature. The gravamen of the decision was that his Honour firstly, refused to grant the appellant an adjournment of the hearing and secondly, dismissed the application pursuant to r146 of the Commission's Rules for want of prosecution.

7 To appreciate the background to his Honour's determination it is necessary to examine, through the transcript, the sequence of events on the day of the hearing.

8 At the commencement of the proceedings, Mr Veney, for the Union, informed the Commission that the appellant had dispensed with the Union's services and was seeking an adjournment to obtain legal advice. The appellant said he had only engaged legal representation the day before and was intending to meet with a solicitor later that day. Mr Skyring, for the respondent, opposed the adjournment on the basis that the case was ready to proceed, witnesses were available and an earlier date for the hearing had already been adjourned due to the applicant's default of the Commission's directions. If the case did not proceed, Mr Skyring foreshadowed an application that the matter be dismissed for want of prosecution in that the proceedings had not been pursued with due diligence.

9 The Deputy President invited the appellant to reconsider his position as to representation and proceed with the hearing. He adjourned for a short time for this to occur. Upon resumption, Mr Veney confirmed his earlier advice. The appellant informed the Commission that he could not proceed without legal representation. After some further exchange between the Deputy President and the appellant, his Honour asked if the adjournment application was pressed. The appellant confirmed that it was. His Honour ruled against the appellant and invited him to proceed with his case. The appellant declined and said he could not do so without legal representation.

10 Mr Skyring then pressed his foreshadowed application. During his submissions Mr Skyring cited the decisions of Sonia Lawless and Leichhardt Community Youth Association [2003] NSWIRComm 66, Hutchison and Karl Azzi Hairstylists [2002] NSWIRComm 133 and Stollznow v Calvert (1980) 2 NSWLR 759. The appellant did not respond to Mr Skyring's submission, although we understood the appellant's response to the application under r146 to be to seek an adjournment. The Deputy President then proceeded to issue his decision.

11 The Full Bench granted leave to amend the appeal. The grounds of the amended appeal were: (i) That the Commission erred in law in refusing to grant the Appellant an adjournment of his claim on 31 October 2003 and awarded(sic) that he might seek legal advice (ii) That the Appellant was denied nature (sic) justice and the Commission erred in law by ordering his claim be struck out. (iii) The Commission erred in law in that Grayson DP failed to provide proper reasons; (iv) The Commission erred in law in that Grayson DP erred in applying the sanctions applicable in respect of an Applicant's want of prosecution in circumstances where the Applicant was not in default of any procedural step and is present in Court but unrepresented and unable to proceed as the Applicant wished to arrange legal representation. (v) The Commission erred in law in that Grayson DP failed to afford the Applicant procedural fairness in that His Honour: (a) Failed to inform the Applicant in plain English the effect of Rule 147; and (b) Failed to correct the applicant's misunderstanding or misapprehension as to the consequences (or lack of them) of the matter being dismissed for want of prosecution.

12 The appellant made an application to admit fresh evidence. After a short adjournment the Full Bench ruled: We propose to rule on what appears to be the essence of the application for fresh evidence in the proceedings and will do so in two parts dealing, firstly, with item numbers 5 to 10 respectively appearing in the appeal book and, secondly, with the affidavit of Mr Gary Mealey filed on 9 December 2003. As to the first consideration we note at the outset that while we referred to the material as a matter of convenience by reference both to the index to the appeal book and the various materials corresponding to that index appearing on pages 22-23, we agree with the submission put by Mr Crow that these materials do not form part of the record of the proceedings and should not properly have formed part of the appeal book. Then dealing with those matters however - again for convenience by reference to the appeal book - we consider that the affidavits corresponding respectively to items 5, 6, 7, 8 9 and 10 appearing in the appeal book, should be admitted as evidence in the appeal for all purposes, namely both as to the question of leave and if reached, the question of merit both as to firstly them demonstrating the record of the proceedings that have been produced to the Deputy President but not read into evidence - that is they are not evidence in the proceedings before the Deputy President, but demonstrate the case filed by the respective interests and, secondly, primarily as to the question of merit as to the nature of the cases which were advanced at that stage, not as to the intricacies of the merits of them, but simply as to the nature of the cases advanced at that point. That collection of six affidavits shall be collectively Exhibit "2" in the appeal proceedings, although limited in their operation and effect in the appeal in the manner that we have described in rendering our decision in relation to it. Then turning to the affidavit of Garry Patrick Mealey filed on 9 December 2003, we have decided to admit into evidence on the appeal, parts of the affidavit and in that respect to limit the scope of the evidence so admitted for particular purposes on the appeal. Therefore we shall deal with the paragraphs respectively as those paragraphs admitted and those of course struck for that purpose. In each case it should be taken that where the paragraph has been admitted, we do so by the grant of leave pursuant to section 191(2) of the Act. We admit for that purpose, but only as to the question of leave to appeal, paragraphs 1 to 4 respectively. We strike paragraphs 5, 6, 7 and 8. We admit as to the question of leave and, if reached, the question of merit, paragraph 9 and we strike respectively paragraphs 10, 11, 12 and 13, namely the balance of the affidavit. Therefore there is admitted as exhibit "3" the paragraphs which we have identified as having been admitted in the proceedings either as to leave or to merit as described in our ruling. We have not identified separately how the annexure would carry in that respect although it is our suspicion that it does not follow. In other words the annexures would not form part of the exhibit.

13 The effect of our decision was to admit into evidence an important matter relevant to the disposal of this appeal. That concerned the following uncontested evidence of the appellant: 1) I am the appellant in this matter. My date of birth is 15 August 1954. 2) I left school at the age of 14 years. I cannot read. I cannot write. I am married with six children aged 11 years, 14 years, 16 years, 18 years, 19 years and 21 years. 3) Since leaving school I have always been employed in manual labour type positions and the types of jobs that I have done are labourer, loading in transport, meat worker, 19 years with South Sydney Council and City of Sydney Council. I have only been unemployed once for 12 months after I left South Sydney Council in 1993.

14 On the question of leave to appeal Ms Painter, counsel for the appellant, submitted that the appeal raised questions of importance such that it was in the public interest to grant leave to appeal. These questions were: a) the circumstances in which an application for adjournment of a hearing by an unrepresented and illiterate litigant in order to seek alternative legal advice and representation should be granted;

b) the meaning and application of r146 of the Commission Rules and in particular of the phrases " has not done an act required" and "otherwise not pursued the proceedings with due diligence" ;

c) whether the sanctions applicable in respect of an applicant's want of prosecution are properly applied pursuant to r146 in circumstances where an applicant is unable to proceed (but otherwise is ready and in compliance with directions issued by the Court) as the applicant wishes to arrange alternate legal representation;

d) the extent to which the Commission has an obligation to inform in plain English an unrepresented, uneducated and illiterate and indigent litigant of the impact of his or her failure to proceed when faced with an application under r146 and in particular the impact of r147 if the application under r146 is successful;

e) whether the absence of the availability of a costs order as a means to rectify prejudice caused to the respondent means that an application for an adjournment will be less readily granted than otherwise might prevail.

15 Ms Painter contended that Grayson DP had denied the appellant procedural fairness by refusing his request for an adjournment and dismissing the proceedings for want of prosecution.

16 Ms Painter argued that Grayson DP should have granted the adjournment and, by not doing so his Honour: a) failed to invite the applicant to make submissions concerning the reasons for the adjournment application;

b) failed to take into account the applicant's personal circumstances, namely that the applicant was unrepresented, illiterate and uneducated;

c) failed to inform the applicant in plain English the consequences of making the adjournment application;

d) failed to correct the applicant's misapprehension and/or misunderstanding as to the consequences of the applicant persisting with the adjournment application;

e) failed to afford the applicant procedural fairness; and

f) erred in exercising his discretion to deny the applicant's request for an adjournment.

17 In deciding to dismiss the appellant's application, Ms Painter submitted that Grayson DP had: a) failed to provide proper reasons;

b) erred in applying the sanctions applicable in respect of an applicant's want of prosecution in circumstances where an applicant is not in default of any procedural step and is present in Court but unrepresented and unable to proceed as the applicant wishes to arrange legal representation.

c) erred in determining that the circumstances were such that the appellant had " not done any act required to be done by or under the Act ... or otherwise not pursued the proceedings with due diligence" as required by r146 of the Rules of the Commission;

d) failed to inform the applicant in plain English the effect of r147;

e) failed to correct the applicant's misunderstanding or misapprehension as to the consequences (or lack of them) of the matter being dismissed for want of prosecution;

f) failed to afford the applicant procedural fairness; and

g) erred in the exercise of his discretion under r146.

18 In developing the appellant's submissions, Ms Painter referred to rr68 and 69 dealing with motions which are in the following terms: Application 68 Unless a tribunal directs otherwise, an interlocutory or other application in relation to proceedings already commenced must be made by motion Notice 69 (1) Subject to subrule (2), a person must not move a tribunal for any order unless before moving that person has filed notice of the motion in the appropriate form and has served the notice on each interested party who has an address for service in the proceedings. (2) A person may move a tribunal without previously filing or serving notice of the motion: (a) where the preparation of the notice, or the filing or service (as the case may be) of the notice would cause undue delay or other mischief to the applicant; or (b) where each other party interested consents to the order; or (c) where the tribunal dispenses with the requirements of subrule (1). (3) The notice of motion must: (a) state the date and time when, and the place where, the motion is to be made; and (b) where the tribunal makes an order under Rule 70, bear a note of the order made; and (c) state concisely the nature of the order which is sought; and (d) name each party affected by the order which is sought. (4) Costs need not be specifically claimed.

19 It was put that because the Deputy President had not dispensed with the requirement of subrule (1), the want of prosecution motion was fatally flawed.

20 Ms Painter put that it was clear the appellant was pursuing his case. While he was five days late in filing his evidence, there could be no real criticism of this default. The respondent had not suffered any practical inconvenience. Only one of its witnesses had been required for cross examination.

21 Ms Painter submitted that there was no evidence to support a conclusion that the appellant had not pursued the proceedings with due diligence. Rather, by seeking an adjournment to instruct alternative representation it was clear that he was intent on pursuing his claim. In such circumstances, it was not unreasonable for the appellant to have been granted an adjournment.

22 Ms Painter rejected the respondent's reliance on a number of decisions put before Grayson DP to support its want of prosecution motion. She said these decisions were distinguishable from the circumstances of this case. All these authorities dealt with a persistent failure to appear before the Commission or give any explanation for such failure. Ms Painter put that there was clear Full Bench authority on the operation of r146, but this authority had not been given to the Deputy President. See Freund and Ors and Peter Stoitse Transport Pty Ltd and Anor [2002] NSWIRComm 54.

23 Ms Painter submitted that Grayson DP did not make clear to the appellant, in plain English, the implications of the proceedings being dismissed. It was clear from the transcript that the appellant was an uneducated man who did not understand the consequences in not proceeding with his case. It would have been plain to the Deputy President that the applicant was not in a position to understand the proceedings; let alone conduct a defence of his case. This was evident from the original s84 application, which disclosed that the appellant needed assistance with literacy.

24 Ms Painter referred to the Deputy President's reference to the appellant deciding not to present his case "for reasons best known to himself." She said that the Deputy President perceived that "another agenda" was happening but did not ask about it, or identify what it was. The Deputy President was thus influenced by extraneous and irrelevant matters.

25 Ms Painter said that leave to appeal should be granted, the appeal upheld and the matter remitted to another member of the Commission for determination on its merits.

26 As to leave to appeal, Mr Crow, counsel for the respondent, put that leave ought not be granted, as the adjournment application was interlocutory and entirely discretionary. He said that rr68 and 69 should not be used to create obstacles for the Commission in the exercise of its statutory functions. The Rules are to assist in the efficient discharge of the Commission's duties and to ensure fairness to the parties.

27 Mr Crow submitted that his Honour knew the reasons why the appellant had sought the adjournment and carefully explained the consequences of him not proceeding with his case. There was no evidence before his Honour that the appellant was illiterate or uneducated. 28 In these circumstances, Mr Crow put that the Commission, on appeal, would not substitute its discretion for that of Grayson DP having regard for s191(3) of the Act and the principles set out in House v The King (1936) 55 CLR 499.

29 The same principles apply to the exercise of discretion under r146(a) to dismiss an application for want of prosecution. Mr Crow also relied on s170(3), which relevantly provides: If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings.

30 Mr Crow submitted that the circumstances before the Deputy President were analogous to those before Wilcox J in Kenneth Little Thoroughbred Services Pty Limited v Davies [2003] FCA 1627 (18 December 2003) where his Honour said: It seems to me unacceptable for a respondent, in a matter that is being litigated in a court of summary jurisdiction, and who has had over three months notice of the claim, to wait until the morning of the hearing to instruct a lawyer to defend the claim. A party who chooses to take that course cannot expect that a court will be inclined to grant an adjournment to allow the newly instructed lawyer to become fully familiar with the claim. Parties are expected by courts, at any level, to take steps to prepare themselves for a hearing.

31 Mr Crow submitted that there was no evidence of the appellant's ignorance of r146 or r147 and the consequences of the matter being dismissed. The facts before the Deputy President abundantly demonstrated a want of prosecution. The appellant was given warning of the consequences of his decision. In any event, Mr Crow said that the r146 application could have been dealt with on the day by the appellant. However, it did not matter that it was not, as there was little more that could be said about the factual matrix before the Deputy President.

32 Rather than risk the dismissal of his case, the appellant could have changed his mind about the Union's representation and asked Mr Veney to run the case. The transcript disclosed that Mr Veney was still within the Commission's precincts. Mr Crow submitted that the respondent did not accept the truth of the assertion about the appellant's lack of literacy. In any event, the appellant had heard what had been put in clear and plain language.

33 Finally, Mr Crow put that the decision in Freund did not concern r146 and therefore could be distinguished from this case.

34 At the conclusion of the parties' submissions the Full Bench adjourned for a short period. Upon resumption we announced that leave to appeal was granted, but we were undecided in relation to the merits of the appeal. We invited the parties to consider a further attempt at conciliation and advise of the result within 7 days. No settlement was reached and we have proceeded to determine the appeal. Before doing so, we will state shortly our reasons for granting leave to appeal.

35 The well settled principles governing leave to appeal are conveniently set out in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380; see also King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353. Leave will not lightly or automatically be granted.

36 We consider that in this case leave to appeal should be granted. We do so on two bases; firstly, it would be in the interests of the proper administration of justice (particularly having regard to the circumstances of the dismissal of the appellant's application and the consequences of r147) and, secondly, because this appeal raises issues of general significance to the practices which should be adopted by members of the Commission when considering applications to dismiss proceedings for want of prosecution pursuant to r146 of the Commission's Rules.

37 Counsel for the appellant submitted that, for two principal reasons, the proceedings before the Deputy President miscarried due to a denial of natural justice afforded to the appellant. It was said that his Honour was in error in firstly, refusing to grant the appellant an adjournment and secondly, by dismissing his application for want of prosecution. We accept that these propositions correctly characterise the issues to be determined on appeal.

38 In CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia (2001) 110 IR 211, a Full Bench of the Commission referred to the obligation to observe procedural fairness in relation to proceedings before the Commission. At para 33 the Full Bench said: The Commission, when not sitting in Court Session, is not bound to act in a formal manner, is not bound by the rules of evidence and may inform itself in any way that it considers to be just: s163(1)(a) and (b) of the Act. However, the Commission is required to act according to equity, good conscience and the substantial merits of the case: s163(1)(c) of the Act. This requirement clearly encompasses an obligation to observe procedural fairness in relation to proceedings before the Commission: see General Pants (Trading) Co Pty Ltd v Shonny (unreported, Fisher P, Schmidt J and Murphy CC, Matter No IRC 3123 of 1993, 8 September 1994, at p12). Numerous decisions have affirmed the principle that arbitral tribunals, although not bound by the rules of evidence or obliged to adopt the strict procedures characteristic of the courtroom, are nonetheless required to adhere to the dictates of procedural fairness. In Re Australian Railways Union; Ex parte Public Transport Corporation (1993) 117 ALR 17, the High Court observed that broad powers were conferred on the Federal Commission to make an award and was not restricted to the specific relief claimed by the parties. However, the Court stated (at 23-24): But the wide scope given to the Commission in determining the relief which it will give does not absolve it from an obligation to observe the rules of procedural fairness in exercising its arbitral function. In Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd ((1989) 167 CLR 513 at p519) this Court pointed out that it was well settled that the Conciliation and Arbitration Commission was bound to act judicially and that the Commission, as its successor, is bound to do likewise. The Court went on to point out that one aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and, coupled with that duty, is the duty to consider the case put. And in Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd ((1993) 67 ALJR 389, at p390; 112 ALR 193, at p194) the Court said that the Commission has a duty in considering an application to afford a party a reasonable opportunity to allow his or her case to be put. The precise requirements of procedural fairness will depend on the entire circumstances of the case and the statutory context in which the decision-maker is operating. It is clear, however, that a party to proceedings is entitled to know that case which they are required to answer. In Kioa v West (1985) 159 CLR 550 at 582, for example, Mason J said: It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it. Fairness requires that each party be given the opportunity to meet the case which is put against him or her. In adversarial proceedings, this ordinarily means that the decision maker is precluded from addressing issues not raised by the charges or pleadings and the submissions of the parties at hearing: see Fletcher v Federal Commissioner of Taxation (1988) 84 ALR 295 at 307-310. A decision maker may also be required to identify critical issues which it is proposed to decide against a party, at least where those conclusions are not obvious or anticipated. See also Freund and Ors and Peter Stoitse Transport Pty Ltd and Anor .

39 It was obviously regrettable that an adjournment application was made at the commencement of the proceedings on 31 October in circumstances where all the evidence had been filed and the respondent was plainly prepared and ready for the case to proceed.

40 There can be no doubt that the Deputy President was able, as a matter of discretion, to refuse to grant an adjournment; see Martin v Fruit Ingredients Australia Pty Ltd [2002] NSWIRComm 380. The exercise of that discretion does not make the exercise of such a judgement immune from review on appeal in accordance with the principles in House v The King, although it must be emphasised that the Commission will be reluctant to intervene on appeal in the case of interlocutory decisions as to procedural issues. However, we consider in this matter the exercise of the discretion miscarried.

41 It is plain that the appellant was seeking an adjournment in order to seek legal advice. It was the appellant's evidence that he had contacted the firm of Leitch Hasson Dent (Solicitors) a day or so before 31 October and made arrangements to meet with the solicitor that very day. The appellant believed that there would be no problem with an adjournment. Whatever might be said about the undesirability of seeking alternative representation so late in the proceedings, it remains a fundamental right of any party to have the representation of his/her own choosing, particularly when the alternative is no representation at all.

42 Moreover, we would observe that the respondent never seriously asserted (nor could it) that any difficulties occasioned in the proceedings below were substantial in nature or caused it any serious prejudice. Indeed, there was no real contest, as we have earlier noted, about the earlier adjournment of the hearing date.

43 In addition, we believe that the injustice which was visited upon the appellant was compounded by a failure to appreciate the applicant's lack of literacy skills as disclosed in his s84 application. As the evidence before us elaborates, the appellant cannot read or write. Faced with conducting his own case involving a number of detailed affidavits, it is little wonder that he baulked at the prospect.

44 To the extent then that the appellant was denied a right to be represented, where he was actively seeking alternative representation and bearing in mind the appellant's literacy difficulties, we consider that the appellant was denied procedural fairness. This is sufficient to determine this matter. We consider the error was jurisdictional in nature and the appeal should be upheld. However, having regard to the submissions of the parties, we consider that the second aspect of the appeal should also be considered. This involves a consideration of rr146 and 147.

45 Rules 146 and 147 are in the following terms: Want of prosecution 146 Where any party has not done any act required to be done by or under the Act or any other Act or otherwise has not pursued the proceedings with due diligence, a tribunal may: (a) order that the application be dismissed for want of prosecution; or (b) fix a definite time for the doing of the act and at the same time order that upon non-compliance the application shall stand dismissed for want of prosecution or subsequently, in the event of non-compliance, order that it be dismissed; or (c) make such further or other order as in the circumstances may seem just. Effect of Dismissal 147 Subject to any right of appeal, where a tribunal dismisses an application for want of prosecution the applicant shall not claim the same relief in fresh proceedings.

46 In our opinion, the appellant was denied natural justice when his application was dismissed for want of prosecution. We make this finding for the following reasons.

47 It is plain that the Deputy President attempted to explain the implications for the appellant in not proceeding with his case. Even if the appellant understood the implications (which we doubt), that is really not the point.

48 What is evident is that the appellant was not able to appropriately respond to an application to dismiss his case for want of prosecution. Further, he did not have reasonable notice that such an application would be made. In fact, we consider that, in essence, the appellant sought and was refused an adjournment of the hearing of the application to dismiss. As the Deputy President's approach to the proceedings failed to afford the appellant such notice (or grant such an adjournment), we consider the proceedings miscarried.

49 It is a fundamental right of any party to litigation to be given reasonable notice of any substantive application moved by the opposing party. A fortiori when the effect of such as application is to finalise the proceedings without trial. By dent of the operation of r147, the effect of dismissal, absent the exercising of a right of appeal, is final. An appellant is unable to bring fresh proceedings.

50 We would make it clear that before a matter can be dismissed under r146, parties must be afforded an opportunity to be heard on the issue. Without this opportunity being given to an applicant, we consider that the Commission would not be in a position to be able to form a proper view of the application. This need not necessarily require the procedure advocated for the appellant under rr68 and 69 (see r69(2)). We note, however, that if dismissal of the proceedings was raised by an appropriate notice of motion and with reasonable notice being afforded to the respondent to the notice of motion, then a failure to attend the proceedings might well result in the application being granted. We emphasise that this was not the case in the proceedings before the Deputy President.

51 We wish to make two further observations. Rule 146 requires a finding that a party "has not pursued the proceedings with due diligence". In considering any application for want of prosecution it is important to make a proper assessment as to whether the history of the proceedings warrants such a conclusion. On any objective assessment, we think that such a description could not be applied to the appellant in the circumstances we have earlier described. Indeed, the fact that he was seeking alternative representation strengthens our view that he had every intention to continue to pursue his claim. His only potential lack of diligence was being ill prepared and ill equipped to run his case at the hearing or defend himself against the want of prosecution application (which may, in the circumstances, be explained at least by his lack of literacy).

52 This case, we believe, can be distinguished from cases such as Hutchison and Karl Azzi Hairstylists and Sonia Lawless and Leichhardt Community Youth Association. In each of these matters Sams DP, dismissed applications brought by applicants pursuant to s84 of the Act where the applicants failed to attend pre-hearing conferences and or arbitration proceedings and offered no explanation for their failure to attend when given the opportunity.

53 Accordingly, we conclude that the errors we have earlier described constitute a miscarriage of justice in a manner which attracts appellate intervention under the principles in House v The King.

54 We have taken into account the prejudice to the respondent in upholding the appeal and are of the firm view that the interests of justice would be best served if the appellant is permitted to have his application properly heard and disposed of. We have not, of course, given any consideration to the merits of the appellant's case.

55 We consider that leave to appeal should be granted and the appeal upheld.

56 We make the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision of Grayson DP of 31 October 2003 is quashed. 4. The matter is remitted to Sams DP for hearing.

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