Crewdson v Department of Ageing, Disability and Home Care

LEGISLATION CITED: Industrial Relations Act 1996

Crewdson v Department of Ageing, Disability and Home Care (2007) 159 IR 446 Hakim and Hakcom Investments Pty Ltd & anor [2004] NSWIRComm 405 CASES CITED: Koprivnjak and Others v Body Corporate Services (NSW) Pty Limited (1999) 87 IR 49 Lenijamar Pty Ltd v AGC (Advances ) Ltd (1990) 27 FCR 388 Mealey and the Council of the City of Sydney (2004) 132 IR 177 Piriz v AAPT Limited [2005] NSWIRComm 374

APPLICANT (Respondent to Motion) Ms S Tansley unrepresented LEGAL REPRESENTATIVES: RESPONDENT (Applicant on Motion) Mr C Landrigan Northern Sydney Central Coast Area Health Service

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Susan Tansley and Northern Sydney Central Coast Area Health Service

Application by Susan Tansley re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION ON NOTICE OF MOTION [2008] NSWIRComm 83 1 The Commission has been moved by the respondent in this matter, the Northern Sydney Central Coast Area Health Service, to dismiss this application, filed under Pt 6 Ch 2 of the Industrial Relations Act 1996 ('the Act') for want of prosecution. The substantive application for reinstatement relief from alleged unfair dismissal, was originally filed on 14 September 2007 by the Health Services Union ('the Union') on behalf of its member, Ms Susan Tansley. It is relevant, to the disposition of this notice of motion, to note that on 20 March 2008, the Union filed a notice of ceasing to act for Ms Tansley. Consequently, the file was amended to record the applicant as Ms Susan Tansley, acting on her own behalf. 2 The respondent's notice of motion and accompanying affidavit of Mr Robert Hitchen, Manager Employee Relations, were filed on 1 April 2008 and served on the applicant on or about that date. There was no complaint from the applicant that she had not received the filed material in sufficient time for her to respond to the notice of motion at its hearing on 8 April 2008. 3 This matter has had a lamentable history underpinned, unfortunately, by the applicant's inability and/or unwillingness to co-operate with her Union and this Commission in providing the most basic of information which is required in order for her application for relief from alleged unfair dismissal to be prosecuted in an efficient, orderly and timely fashion before the Commission. At various points in the proceedings, the applicant would interrupt and embark on a litany of wild and unsupported accusations of bullying, harassment, reprisals, conspiracy, corruption and, even criminal conduct. She never once focussed on the reasons for her dismissal. She was insulting and argumentative, not only towards the respondent's representative, Mr C Landrigan, but towards her own Union representative, Mr D Lipman. To say that the Union was utterly frustrated with her irrelevant accusations and her failure to provide the most basic of information, is to understate its position. Despite its best endeavours, the Union was placed in the invidious and embarrassing position of not being able to comply with the directions of the Commission because the applicant simply would not appropriately engage with it. It was perfectly understandable that the Union, in frustration, had little choice but to file a notice of ceasing to act. 4 It is necessary to provide a summary of the proceedings before turning to the instant matter now to be determined. 5 Conciliation and Directions proceedings were listed on 11 October 2007. Mr Lipman appeared for the Union and Mr Landrigan appeared for the respondent. At that time, the Commission was informed that the applicant had not been at work since July 2006, and had been on paid suspension for about a year, during which an investigation was conducted by the respondent into a number of the applicant's allegations and grievances. Mr Landrigan said that when first asked for details of her grievances, it took the applicant four months to produce the details necessary for an independent investigator, Mr John Kilkenny to conduct an investigation. In the result, none of the allegations were found to be substantiated and outstanding disciplinary matters were resumed against the applicant, which ultimately resulted in her dismissal. 6 At the conclusion of private conciliation conferences, the Commission made a finding of unsuccessful conciliation and issued directions in preparation for the arbitration of her claim. The hearing was to commence on 30 January 2008 and continue for two weeks. The Union was to file the applicant's evidence by 22 November 2007. However, the Union wrote to the Commission on 26 November 2007, after failing to file the applicant's evidence, and said in part: Regrettably, and somewhat most unusually, the HSU has not been able to provide such material arising from difficulties in obtaining instructions from Ms Tansley. The continued inability to obtain relevant instruction from Ms Tansley is most disappointing and the HSU apologies (sic) to the Commission for any unintended consequence that this now may have on the directions issued and hearing dates scheduled. Accordingly, in the above circumstances, the HSU would respectfully seek a relisting of this matte for Report Back and possible further directions. This further assistance of the Commission would be most appreciated. 7 At a further directions hearing on 3 December 2007, the applicant expressed dissatisfaction with the Union's representation and indicated she was seeking alternative representation. The applicant claimed she was now living in a refuge; her home had been trashed; she had lost her family; that she was a police target and she was in fear for her life. She complained that she had not been provided with a copy of the transcript of her 'show cause' interview of 20 June 2006. She said she had 11 years of documentation, some of which the Union had now lost. Mr Landrigan undertook to provide a copy of the transcript of the interview to the Union and the applicant by 7 December 2007. Mr Lipman reported that while the applicant would not accept the Union's advice, he had proposed settlement of the matter to the respondent. The Commission adjourned the matter for a week to allow the applicant to consider the transcript, her future representation and whether settlement of her claim might be possible. 8 The respondent made a "without prejudice" settlement offer to the applicant which remained open until 10 December 2007. Mr Lipman described the offer as reasonable and advised the applicant to accept it. He requested a draft deed of release from the respondent. He then provided the draft to the applicant and explained its terms to her. The matter was re-listed on 14 December at which time the Commission was advised of the settlement negotiations. The matter was adjourned until 29 January 2008 (later changed to 1 February). On this occasion, Mr Landrigan said that as no reply had been received from the applicant, the offer of settlement had been withdrawn and the matter should proceed to hearing. He contended that the applicant should only be provided a further three weeks to file her evidence. Mr Landrigan said the applicant had earlier been given six weeks to file her evidence and had failed to do so. He put that if there was a failure again to comply with the Commission's directions, her application should be dismissed. 9 The applicant then proceeded to accuse the Union of "playing a stunt" with her. She said that she and others had received "very little co-operation" from the Union. She said she was endeavouring to obtain legal advice and would not sign a "gagged statement" (presumably the deed of release). The Commission then said: HIS HONOUR: I propose to allow the applicant one last, and I would say last opportunity, and to allow her a six week period to provide her evidence, and I would indicate to you, nevertheless that, a failure to do so without appropriate explanation and advice to the Commission about that may well result in the Commission entertaining an application that you might make seeking a dismissal of the proceedings. I don't intend to set the matter for hearing until I'm confident that all of the evidence is before the Commission. At this stage I can't be so confident. OFF RECORD HIS HONOUR: The Commission intends to set this matter for hearing but I shall not take the course of setting hearing dates at this stage, however I propose to issue the following directions: 1.That the applicant file and serve any evidence upon which the applicant relies by 4pm on 13 March. 2. The respondent file and serve any evidence on which the respondent relies by 4pm on 4 April.

3. That the applicant file and serve any evidence in reply by 4pm on 9 May. In light of the history of this matter I wish to emphasise on the record the importance of strictly complying with the timetable, and a failure to do so by either party may well result in an application being made by either of them in respect to such a failure, but hopefully the matter can proceed in an orderly fashion with the materials being provided according to the timetable that I've just outlined. 10 On 13 March 2008, the applicant filed a letter, a statutory declaration and doctor's certificate and two additional statutory declarations she claimed were from supporting witnesses. It is clear from a reading of this somewhat confusing material, that none of it related to the reasons for the termination of the applicant's employment. Rather, it boldly stated that she wanted to have her job back. She did not wish to have her matter withdrawn, but she was unable to conduct her case without legal representation. This material could not be said to be evidence in support of her claim of unfair dismissal, but rather, it was simply a plea to get her job back. Importantly, the applicant did not indicate if, when, or if at all she intended to prepare evidence for her substantive case. 11 In light of this history, the respondent submitted that the Commission could have no confidence that the applicant would comply with further directions of the Commission or that the matter would ever proceed in an orderly and timely fashion. It was submitted that there was a public interest in the prompt institution and prosecution of litigation before the Commission and the continued failure by the applicant, without reasonable explanation, to comply with the Commission's directions, renders an injustice to the respondent. It was said that the Commission should take into account the respondent's ongoing costs and inconvenience of the matter not being finalised and, accordingly, the application should be dismissed for want of prosecution. 12 The notice of motion was heard on 8 April 2007. The applicant said that she had sought legal aid, but had been unsuccessful. She said she had been "screaming" for assistance and just wanted her job back. She had been "marginalised" and said that there are matters which now need to go the Police Integrity Commission. She claimed to have been intimidated by the Police who had "trashed" her property. She said she had been "injured, battered, bruised and beaten" in trying to look after her children. 13 Mr Landrigan relied on the affidavit filed by Mr Hitchen, who was not required for cross-examination. Mr Landrigan said that this matter had been dragging on for six months. The applicant had been given twelve weeks to file her evidence and there had been a complete failure by her to put her case. Notwithstanding a reasonable offer to settle the matter, the Commission had warned the applicant that she may face a motion to dismiss her claim, if she again failed to comply with the Commission's directions. He said that the Union had attempted to get her co-operation, but it too had been unsuccessful. The Union had tried its best just to get the names and contact details of witnesses. Nothing had been provided. Mr Landrigan noted that while the applicant continually raised matters of concern to her, these matters had nothing to do with her case. 14 The applicant replied that Mr Landrigan had trivialised her concerns and had failed in his duty of care to her. She concluded that he "would have been quite happy if I ended up dead or harmed…". (At this point the Commission intervened to warn the applicant that she had made a grossly improper comment.) The applicant put that she had no human rights, that she had been overwhelmed by "evil and horrors" including not feeling safe. She had been trying to save her children and her home and had other domestic problems. She said that all she wanted to do was to return to a decent job and this was "a simple request from a simple human being who believes in the truth and hard work". The applicant opposed the motion to dismiss her application. CONSIDERATION 15 Presumably, this notice of motion is brought pursuant to Rules 146 and 147 of the Industrial Relations Commission Rules. These Rules provide as follows: 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.

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.

16 It has been accepted by this Commission that the principles applying to applications made under Rules 146 and 147 are those applicable to similar applications made under the Supreme Court Rules: See Koprivnjak and Others v Body Corporate Services (NSW) Pty Limited (1999) 87 IR 49 and Hakim and Hakcom Investments Pty Ltd & anor [2004] NSWIRComm 405. 17 In Piriz v AAPT Limited [2005] NSWIRComm 374, Staff J referred to the principles to be taken into account when an application to dismiss a matter for want of prosecution is considered by the Commission. His Honour said: 8 These principles were succinctly summarised by Simpson J in Raymond Hoser v Christopher Hartcher [1999] NSWSC 527 and respectfully adopted by me in Hakim v Hakcom Investments at [24] as follows: … 1. The ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited , unreported, 19 November 1995, per Sperling J. 2. The discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of discretion: Stollznow v Calvert . 3. Any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J. 4. Personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73. 5. A defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. Calvert v Stollznow, 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, par 13,022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestly JA. 6. Delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor; Calvert v Stollznow, per Cross J; Burke v TCN. Simpson J observed that in her view, this circumstance must be treated with some caution, noting that the weight that can be accorded to that delay is limited. 7. The onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise. 8. Prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay. 9. What the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. 10. The plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred), it is less likely that justice will be done by striking the action out: Razvan, per Kirby P.

11. The exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice.

9 In Mealey v Council of the City of Sydney (2004) 132 IR 177 at [51], the Full Bench, after considering r 146 observed: 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…

10 In State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, the High Court observed at 154: …Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. 18 It also seems to me that the judgment of the Federal Court in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 is particularly apposite to the circumstances of this case. At page 396 a majority of the Full Court said: "…the rules must be administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable, by even the most conscientious parties and their lawyers, and of the likely serious consequences to an applicant of staying or dismissing a claim; compare the approach taken to non-compliance with time limitations in respect of appeals in Van Reesema v Giameos (1979) 27 ALR 525. We would not wish our observations to cause respondents to apply for dismissal of proceedings simply because there has been a non-compliance with a direction by the applicant, even though it does not cause or indicate a continuing problem in preparing the matter for an early trial. The discretion conferred by O 10, r 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to cooperate with the court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non- compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to cooperate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding." 19 With the relevant principles in mind, I am satisfied that the applicant was given reasonable notice of this application and she was given an appropriate opportunity to respond: See Mealy and the Council of the City of Sydney (2004) 132 IR 177 at par 50. There can be no doubt that the applicant understood the ramifications of the notice of motion being granted. However, she chose not to offer any reasonable basis for the Commission exercising its discretion in her favour. To simply argue a range of irrelevant and extraneous matters - no doubt of grave concern to her - and seek to have the Commission order her immediate reinstatement, is patently insufficient and in no way addresses the substantive basis of the notice of motion. 20 These are the facts. The applicant has been offered generous latitude by the Commission. She has had 12 weeks to prepare her evidence - four times the usual preparatory time in unfair dismissal applications (see Practice Direction 17). Directions have been made on two occasions and not complied with. No satisfactory explanation has been given for the applicant's failure to comply with the Commission's directions. Two weeks of hearing had to be abandoned. The Union desperately tried to assist the applicant, but was met with nil co-operation and absurd accusations against it. 21 At the hearing of the notice of motion the applicant could give no indication when, or if, she would ever be in a position to prepare her case. While she claimed that she required legal advice, she has not been successful in obtaining legal aid and said she had no financial capacity to independently engage legal representation. The applicant could not even focus on defending her position on the notice of motion and chose instead to raise serious allegations against unnamed police officers. She even claimed, quite improperly, that Mr Landrigan would have been happy if she had ended up dead. The applicant frequently invoked a mantra that her case involved "multifaceted overarching interwoven issues". Like Mr Landrigan, I have no idea what is meant by this phrase, as it was never explained. 22 Sadly, for what ever reason, the applicant could not focus on what was required of her to diligently, (or at all), pursue her claim of alleged unfair dismissal. I don't believe she is incapable of doing so; rather she chose not to. Despite its entreaties, the Union could not get her to provide any relevant information. As I said earlier, its little wonder the Union could no longer represent her in the face of ongoing breaches of the Commission's directions. The fact that a very experienced and well resourced Union was unable to convince the applicant to focus on what was required, and to a lesser extent, my own pleadings with her to the same effect, results in me having no confidence at all - even if the applicant could secure legal representation - that she would accept advice and provide the relevant information to any legal practitioner. To put it bluntly, I have no confidence that this case will ever proceed in an orderly or sensible way; let alone in a timely fashion. 23 In circumstances where the applicant:

a) refuses to co-operate with her Union in preparing her case;

what is the Commission to do in order for this case to be properly prepared for hearing? The answer is obvious. 24 I am left with no alternative but to conclude that the applicant has not pursued these proceedings with due diligence. Moreover, the present state of these proceedings is untenable. The burdens on the respondent, despite it being a large Government entity, are real and substantial. It continues to incur costs and inconvenience (including six appearances in the Commission to date) with little, or no prospect of ever reaching a final disposition of the proceedings. As was said by the Full Bench in Crewdson v Department of Ageing, Disability and Home Care (2007) 159 IR 446 at par [16]: 16 The matters which the appellant has referred to are indicative of his concern to pursue other proceedings in which he is involved and we assume that to that extent he is distracted from and unable to pursue these proceedings because, he says, of his involvement in these other proceedings. The fact remains, however, that these appeal proceedings have been on foot since November 2003 and whatever other circumstances may confront a litigant it is still necessary in the interest of the administration of justice that proceedings be pursued diligently and brought to a conclusion as soon as possible. Although the respondents, on one view, are instrumentalities of the New South Wales Government and one may perhaps make some allowance in terms of the appellant by reason of this, on the other hand it is necessary for the efficient and effective administration of Government that it be entitled to have outstanding proceedings before a tribunal concluded as quickly and cost effectively as possible. 25 There is a public interest in ensuring a speedy resolution of litigation initiated in the Commission. (See s 162 of the Act.) Further, in my opinion, allowing the present utterly unsatisfactory state of affairs to continue, is to visit upon the respondent an unwarranted and substantial injustice. 26 If I might offer the applicant a suggestion for her own future wellbeing. It is obviously important for her to focus on those family issues which have been a constant, but serious distraction to her. However, she would do well to move on with her life, concentrate on the things which matter and not obsess on the past. 27 The respondent's notice of motion is granted. Accordingly, matter number IRC07/1512 is dismissed for want of prosecution, pursuant to Rules 146 and 147 of the Industrial Relations Commission Rules.

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