The Applicant, by notice of motion filed on 12 April 2023 and as amended today in court, seeks the following orders:
1. That the filing of the Applicant's reply to the Respondent's evidence be extended to 28 April 2023.
2. That the Applicant file a short summary of her case 14 days prior to the hearing date.
3. That the hearing date of 26 and 27 June 2023 be vacated and a new hearing date set.
In support of the notice of motion, the Applicant relies upon an affidavit sworn by her solicitor, Stephen Kelly, on 11 April 2023. I will discuss the reasons why the Applicant requires an extension of time in which to file reply material shortly. The reason she seeks a vacation of the hearing date is because the counsel she has briefed is not available on the scheduled hearing dates.
The Respondent neither consents to, nor opposes, the making of orders 1 and 2 but does oppose the vacation of the hearing date. The Respondent relies upon an affidavit sworn by her solicitor, Rosemary Marando, 14 April 2023.
For reasons that follow, I have reluctantly decided to extend the time sought by the Applicant for the filing of the Applicant's reply evidence. However, I have decided not to vacate the hearing dates and I will require the Applicant to file her short summary of case at the same time as she files her reply evidence.
The background to the application is as follows.
The Applicant filed an unfair dismissal application against the respondent pursuant to s 181E of the Police Act 1990 (NSW) on 29 March 2022. At that time the Applicant was represented by Matthew Treharne of Walter Madden Jenkins, solicitors. The matter was unsuccessfully conciliated by Commissioner Murphy on 12 April 2022 and 10 May 2022.
Following the conciliation, and at the request of the Applicant, the matter was adjourned until 25 July 2022 for mention. On that day, the Applicant again requested a further adjournment and Commissioner Murphy made orders that the matter be stood over generally with a note that the matter should be relisted for mention after 30 October 2022.
On 30 November 2022 the matter was listed before Chief Commissioner Constant for directions. On that day, the Chief Commissioner set a timetable for the filing and service of evidence by the parties and the matter was listed for a compliance hearing before the Registrar on 8 March 2023.
On 9 January 2023, after the matter was allocated to me and without reference to the parties, I listed the matter for hearing before me on 2 May 2023 for three days. On 10 February 2023, the parties, by email correspondence to the registry and by consent, requested that the hearing dates be vacated, due to the Respondent's counsel being unavailable on the days allocated and that other adjustments be made to the timetable. In light of the fact that the application was made by consent, and the hearing dates had been allocated by me ex parte, on 13 February 2023 I made the following orders:
1. Orders 3, 4 and 10 made by Chief Commissioner Constant on 3 November 2022 are vacated.
2. The hearing listed on 2 - 4 May 2023 is vacated.
3. The respondent must file and serve all written statements to be relied upon for each witness together with any other relevant documentation, including submissions, by 3 March 2023.
4. The applicant must file and serve any reply to the respondent's documents, including any submissions in reply, by 10 March 2023.
5. The matter is listed for a compliance hearing before the registrar at 9.30am on 15 March 2023.
6. The matter is listed for hearing on 26 and 27 June 2023.
It transpires that the applicant was not represented on 13 February 2023, although I was not aware of this on that day.
At the compliance hearing before the Registrar on 15 March 2023 the Applicant appeared via telephone as a self-represented party. According to the evidence of Ms Marando, the Applicant informed the Registrar that she had provided preliminary instructions to Mr Stephen Kelly of Ashley, Francina, Leonard & Associates to review the Respondent's evidence and prepare a reply. She also requested a two-week extension of time in which to file her reply material.
According to Ms Marando, Mr Kelly had written to the registry and to Ms Marando the night before the compliance hearing, advising that he was now instructed, and he required a four week extension of time until 12 April 2023 to file evidence in reply. According to Ms Marando, she consented to the extension of time on the basis that it did not jeopardise the hearing dates and that only material in reply was to be filed.
The Registrar made the following orders:
1. I order an amendment to the timetable with the applicant's evidence in reply now due 12 April 2023. This extension is by consent.
2. Compliance check will be listed on 19 April 2023.
3. I grant liberty to apply for the matter to be re-listed by either party.
Ms Marando emailed Mr Kelly at 10.31am on 15 March 2023 to inform him of the orders made by the Registrar. Mr Kelly filed a Notice of Appointment of Solicitor on 17 March 2023.
[2]
Application to Vacate the Hearing Date
According to Mr Kelly, on or around late March 2023 the Applicant agreed to instruct Mr Brett Eurell of counsel to appear for her at the upcoming hearing, however, Mr Eurell is unavailable in June 2023. It has not been explained why Mr Eurell was briefed to appear in or about late March 2023, in circumstances where he was not available to appear on the scheduled hearing dates.
Mr Kelly's evidence in support of the vacation of the hearing date was as follows:
24. At the time this matter was listed for hearing, the applicant was not legally represented.
25. The respondent is represented by counsel, Mr Martin Watts and I understand the previous hearing date was vacated at the request of the respondent which the applicant did not oppose.
26. My client has been diagnosed with PTSD by Consultant Psychiatrist, Dr Clayton Smith in a report dated 18 October 2022 and is currently seeing a psychologist for her ongoing mental health issues arising from her employment as a NSW Police Officer and therefore would be at a significant disadvantage if she was unable to have counsel and was required to appear unrepresented.
27. I am advised Mr Eurell of counsel has availability in August, October and December of 2023 and therefore any delay in the finalisation of this matter would be not be significant given counsel's availability in the second part of 2023.
28. The issues in these proceedings arc complex and involve questions on interpretating the powers of the NSW Police Commissioner and whether the Directive issued to the applicant was lawful & reasonable in all the circumstances including whether or not it fell within the parameters of the WHS Legislation. For these reasons, the Commission would benefit from the assistance of both parties being legally represented at the hearing.
28. The applicant's legal representatives have only recently come into the matter and have attempted to vacate this hearing at the earliest opportunity.
29. We do not believe there would be any unfair prejudice to the respondent in allowing this application in all the circumstances.
While I accept the Applicant would be at a significant disadvantage if she was unable to have counsel, and that the Commission will benefit from the assistance of both parties being legally represented at the hearing, there is no evidence before me that she would not be able to be legally represented at the hearing if the hearing date were not vacated. There is no evidence that Mr Kelly, who is a practising solicitor, will be unable to act for the Applicant if the hearing date is not vacated, nor is there any evidence of attempts made to secure alternative counsel.
I do not accept that the Applicant's legal representatives have attempted to vacate the hearing at the earliest opportunity, noting that the application was first foreshadowed on 11 April 2023, over three weeks from when instructions were first received by Mr Kelly.
In any event, the hearing is still over two and a half months away, leaving ample time for alternate counsel to be briefed, or at least there is no evidence that that is not sufficient time to enable alternate counsel to be briefed.
In terms of prejudice to the Respondent, the Respondent points out that the date has been put into the diaries of counsel, solicitors and their witness, Superintendent David Driver, and that there are now difficulties in rescheduling the hearing to an alternate date. Evidence was given from Ms Marando that she is unable, at present, to confirm the availability of the Respondent's witness, Superintendent David Driver, as he is currently on leave until 26 April 2023.
It seems, based on exchanges from the bar table, that the earliest available date that both counsel and potentially Superintendent Driver might be available would be 19 to 21 July 2023. However, on that date Ms Marando is not available. Otherwise, it seems that the earliest available dates to all parties may not be until December 2023.
The Respondent also points to the fact that the Applicant seeks back pay as a remedy and that the longer the matter goes on the more back pay potentially the Respondent may be liable for. Whilst that is a matter upon which submissions could be made at the hearing, nevertheless it is a factor in terms of considering where the dictates of justice lie.
Even if the prejudice to the Respondent was minimal, it is not the only consideration. Consistent with my obligations under s 56 of the Civil Procedure Act 2005 (NSW), as guided by s 57, I am required to have regard to the object of the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings and all other proceedings in the court, in this case the Commission, at a cost affordable by the respective parties.
Commissioner Stanton explained in Bouskila v Corrective Services NSW [2019] NSWIRComm 1061 at [162] to [163]:
"The legislative intention of s 57 is both clear and unequivocal and it specifically directs the litigating parties to the objectives of effective case management which requires all proceedings to be managed having regard to their efficient disposal and the efficient use of available judicial and administrative resources.
Critically, s 57(1)(d) of the Civil Procedure Act suggests the objects of case management extend to the needs and interests all parties of the relevant court and not simply those parties conducting the proceedings in question. Section 59 requires that any delay to be eliminated so far as possible. Section 60 also requires a court to consider proportionality of costs."
This matter has been on foot for over a year. At the request of the Applicant, the matter was effectively left in abeyance for over six months. There is no evidence before me as to why the Applicant changed solicitors and no reason advanced as to why I should not hold the Applicant to her agreement to have the hearing date set on 26 and 27 June 2023.
The Applicant now proposes that the hearing of the matter be adjourned for at least a further month and likely for a longer period, potentially up to six months.
In circumstances where the only impediment to the hearing proceeding on 26 and 27 June 2023 is counsel's availability, I consider the overriding purpose and the dictates of justice indicate that the request for the hearing dates to be vacated and for new hearing dates to be set, should be refused.
[3]
Application for Extension of Time to File and Serve Reply Evidence
Mr Kelly gave the following evidence in support of the application for an extension of time:
On or around 6 April 2023 I commenced a review of the evidence in relation to the applicant and respondent's evidence in this matter. During this review, it became evident to me that there was significant material that needed to be considered in preparing the applicant's response to the respondent's evidence including evidence relevant to the applicant's financial position. Unfortunately due to the Easter Holiday period, the applicant has not been in a position to complete her response and requires an extension of time of one further week. It is submitted there would be no prejudice to the respondent in allowing further time as the respondent is not required to submit any further evidence in relation to this matter.
Ms Marando gave the following evidence in respect of the application for an extension of time:
12. At 2.35pm pm 14 April 2023, I received an email from Mr Kelly advising that he would be requesting a further extension of time to file the Applicant's evidence in reply until 28 April 2023 as the Applicant will be away on an outback 4WD trip from 16 April 2023 until 23 April 2023 in outback Victoria and will be out of range. Annexed and marked "RM-2" is a copy of the email.
The email reads as follows:
"Dear Rosemary,
I am emailing to advise my client has provided instructions today she will be away on an outback four wheel drive trip from 16 April 2023 till 23 April 2023, in outback Victoria and will be out of range.
Therefore, I will be requesting at the IRC on Monday, 17 April 2023, for an extension of time to file a reply to the respondent's evidence till Friday, 28 April 2023. I also note that it is a shorter week that week with Anzac Day on 25 April 2023.
I was only advised of this today but have been informed my client has booked this trip some time ago and they will not have any reception during this period.
If you can advise whether you have any objection to this further extension of time it would be appreciated."
The Applicant's evidence was due on 12 April 2023. That deadline was set on 15 March 2023 by consent. The evidence discloses that the Applicant's solicitor was instructed on or about 17 March 2023, giving him a little under a month to finalise the Applicant's reply evidence. Despite this, it seems he only commenced a review of the evidence filed on 6 April 2023, leaving him only six days to finalise the reply material. No explanation has been given as to why he only commenced his review on 6 April 2023.
The delay apparently caused by Mr Kelly was then compounded by the fact that the Applicant went on holiday on 16 April 2023. She informed Mr Kelly that she was going on holiday on 14 April 2023, two days after her evidence was due and two days before her holiday was due to commence.
As I said in Poore v Commissioner of Police, NSW 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 upon other people and entities. Anyone commencing proceedings must prioritise the prosecution of those proceedings to the best their resources and circumstances will allow."
While I am not at all satisfied with the explanations that have been proffered by the Applicant for the delay in finalising her reply material, in circumstances where the hearing is still some two and a half months away and the Respondent has not indicated it will suffer any prejudice from the delay, particularly a relatively short one as indicated and the Applicant clearly will be prejudiced if she is not permitted to rely on the material in reply, on balance the dictates of justice are in favour of the Applicant being given an extension of time to file her reply material.
I make the following orders:
1. The time for filing of the Applicant's reply to the Respondent's evidence and the Applicant's Summary of Case, be extended to 28 April 2023.
2. The Applicant's Notice of Motion is otherwise dismissed.
3. Vacate the compliance check hearings listed on 19 and 26 April 2023.
4. List the matter for a compliance check hearing on 10 May 2023.
Janet McDonald
Commissioner
[4]
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Decision last updated: 19 April 2023