The Commission has before it a notice of motion filed by the Health Secretary on 21 December 2021. That notice of motion seeks an order that the application be dismissed pursuant to r 12.7 of the Uniform Civil Procedure Rules ("UCPR") for want of due despatch. The notice of motion is supported by an affidavit of Jack Gautray, the Manager Industrial Relations for NSW Health Pathology, sworn 21 December 2021.
I had an opportunity to consider both the notice of motion and the affidavit before coming onto the bench this morning. I did that particularly having regard to the fact that Mr Diaz is at present unrepresented in these proceedings and that it was necessary for the notice of motion to be resolved one way or the other to ensure a timely despatch of the proceedings.
As Mr Diaz is unrepresented, I have not invited submissions from him in respect of the notice of motion, particularly having regard to the fact that I am hearing it on its first return.
To place the notice of motion in context, some history is required.
The application for unfair dismissal was filed by Mr Diaz on 23 June 2021. It was first listed for conciliation and directions on 23 July 2021. At the request of the respondent, the conciliation was relisted on 29 July 2021.
On 29 July 2021, Mr P Baker, a solicitor, appeared for Mr Diaz. He raised concerns as to the capacity of Mr Diaz to conduct these proceedings. To use his words, Mr Baker stated:
"It seems to me that it would be necessary for the Commission to be satisfied that he [Mr Diaz] has the physical and mental wherewithal to participate in this process."
The matter was adjourned at Mr Baker's request to allow Mr Diaz an opportunity to obtain medical advice as to his capacity to conduct these proceedings.
The matter came before me again on 19 August 2021. At that time Mr Baker informed me that Mr Diaz had obtained medical advice to the effect that he was not then fit to participate in these proceedings, but that the situation would be reviewed in a fortnight. I stood the matter over for mention on 22 September 2021.
On that date, Mr Baker informed me that arrangements had been made for Mr Diaz to attend an independent medical examination ("IME"). To allow for that to occur and for a report to be prepared, I stood the matter over until 14 October 2021.
At the report back on 14 October 2021, Mr Baker informed me that the IME report had been obtained and that the consultant psychiatrist who had been appointed stated that, in her opinion, Mr Diaz did not currently have the capacity to conduct the proceedings, but that this capacity could be reassessed once he had engaged with appropriate psychiatric treatment. I stood the matter over again to 9 December 2021.
On 6 December 2021 the Commission received from Mr Baker a Notice of Ceasing to Act, informing the Commission that he no longer represents Mr Diaz in these proceedings.
At the report back on 9 December 2021, Mr Diaz was self-represented. He informed the Commission that he had received medical advice to the effect that he had the capacity to conduct the proceedings. I made directions that the medical evidence be filed and served. I also listed the matter for conciliation today, 22 December 2021. Mr Gautray, who appeared for the Health Secretary, indicated that if the matter did not proceed on that day the Health Secretary would wish to be heard as to whether the matter ought to be dismissed.
I digress in the chronology to make this observation: Throughout the proceedings, the Health Secretary has generally been resistant to the Commission providing Mr Diaz with any time or accommodation to demonstrate or develop his capacity to conduct these proceedings. To the extent that the Health Secretary ever consented to an adjournment of the proceedings, she did so begrudgingly.
In any event, at the mention on 9 December 2021 I had the following exchange with Mr Diaz:
"COMMISSIONER: I think that what Mr Gautray is more directly alluding to, Mr Diaz, is that if on the 22nd or on or before the 22nd of December you seek to have the matter adjourned again, I have indicated that I will hear from Mr Gautray as to whether the matter should be dismissed. He is simply saying that if it is your intention to apply for an adjournment, he would like as much advance notice of that as possible.
APPLICANT: Right.
COMMISSIONER: So and I just - I heard what you just said in response to Mr Gautray and let me be abundantly clear this matter is listed for 22 December whether or not you get legal representation. It's not subject to you getting legal representation. Do you understand that?
APPLICANT: I understand, thank you."
Following the directions hearing, but also on 9 December 2021, the Commission received from Mr Diaz two medical reports. One was from Dr Richard Au, the other from Emeritus Professor Derrick Silove. It suffices to say that in his report Dr Au stated:
"I agree with the diagnosis of an adjustment disorder with panic/anxiety and depression. I would add that a major prolonged stressor revolves around the workplace environment. The events leading to this hearing only serves to amplify the symptoms. I think he will greater benefit from resolution of his work situation and my view is that he has the capacity to instruct his lawyer to proceed with the legal proceedings."
On 20 December 2021, Mr Diaz wrote to the Commission seeking to have the matter adjourned until 7 January 2022. He set out a number of reasons why he sought that adjournment.
The Commission sought the views of the Health Secretary who, consistent with her position generally in these proceedings, did not consent to the adjournment. She subsequently filed a notice of motion seeking an order that the proceedings be dismissed.
Rule 12.7 of the UCPR provides that if a plaintiff does not prosecute proceedings with due despatch the court may order that the proceedings be dismissed or make such other order as the court thinks fit.
Rule 12.7 needs to be read in conjunction with s 56 of the Civil Procedure Act 2005, which provides, in subs (1), that the overriding purpose of that Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
In citing this section, I note that the first requirement is that of facilitating a just resolution of the proceedings. The focus is not simply on the quickness or cheapness of the proceedings.
The Health Secretary drew my attention to the matter of Bizuneh v Industrial Relations Secretary (Department of Communities and Justice) (2020) NSWIRComm 1040, in which the Full Bench of the Commission considered an application for an order pursuant to r 12.7 of the UCPR. It is to be observed that in that case the Commission was faced with an applicant who had repeatedly failed to comply with directions of the Commission. In that case, the Full Bench relied on a decision of then Chief Commissioner Kite in Rous and Department of Education and Communities (2018) NSWIRComm 1017, which again concerned an applicant who had repeatedly failed to comply with the Commission's directions.
The Full Bench in Bizuneh also cited Ghosh v NineMSN Pty Limited (2015) 90 NSWLR 334; [2015] NSWCA 334 in which Macfarlan JA, with whom Leeming JA and Adamson JA concurred, at [40] cited a passage from Whitten v Lombard Australia Limited [1968] 2 NSWR 529 at 534 as follows:
"Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised."
To my mind, the Health Secretary has focused too much on the number of adjournments and not on the basis for which they were sought. Unlike the cases of Bizuneh and Rous, where the applicant had repeatedly failed to comply with directions that had been made, in this case the adjournments, on every occasion, were sought to accommodate what was said to be Mr Diaz's restrictions in conducting these proceedings. While the delays are unfortunate, it is my view that there has been an explanation or excuse offered for the delay and that is quite clearly Mr Diaz's medical capacity to conduct this litigation.
As noted in the passage from Whitten to which I referred, it is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason for the delay. It has to be said that there is no evidence in Mr Gautray's affidavit that would support a finding that the respondent would suffer any particular prejudice. The attachment to the affidavit, at par 5, simply submits that the respondent will suffer prejudice by further delaying the conciliation conference. It is not articulated in the evidence in support of the motion what prejudice has been suffered by the respondent that necessitates an order that the proceedings be dismissed.
I am aware from the proceedings that were conducted on 9 December 2021 that some of the individuals who might be called by the respondent in these proceedings are no longer employed with NSW Health Pathology. There is no evidence to say that that are unavailable or could not be made available through the processes of the Commission, including appropriate summonses to appear.
I am also aware from the proceedings on 9 December 2021 that one other person who the Health Secretary might call as a witness may no longer be employed by NSW Health Pathology as at the end of January 2022. Again, there is no evidence before the Commission that the individual would not be available to provide evidence, if required, at any hearing or that they could not be compelled to appear through the mechanisms available under our legislation.
Suffice it to say, I am not satisfied that the respondent has made out its case that it will suffer prejudice as a result of the delay, such as to warrant an order pursuant to r 12.7 that the proceedings be dismissed.
I would add this, that in his submissions Mr Gautray submitted that the aim of Mr Diaz is to create difficulties for and possibly wear down the respondent. I do not accept that submission or that characterisation of Mr Diaz's conduct of these proceedings. I accept that the delays are regrettable, but, as I have already said, an explanation for those delays has been offered which is, in all of the circumstances, credible and, indeed, worthy of the Commission exercising some latitude to allow Mr Diaz an opportunity to demonstrate or develop the mental and physical capacity to conduct these proceedings.
Ultimately, it seems to me that, with conciliation having failed to resolve the proceedings, the interests of justice and, in particular, s 56 of the Civil Procedure Act, requires that the proceedings be programmed with despatch and that the matter proceed in a timely fashion to a hearing, so that the respondent is not subjected to any further or other prejudice as a result of the delays that have been occasioned to date.
For all of these reasons, the notice of motion filed by the Health Secretary on 21 December 2021 is dismissed.
It is appropriate, however, that directions be made at the earliest opportunity for this matter to proceed to determination in an arbitration and arrangements will be made for a directions hearing to be conducted at the first opportunity.
Damian Sloan
Commissioner
[2]
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Decision last updated: 11 January 2022
Parties
Applicant/Plaintiff:
Diaz
Respondent/Defendant:
Health Secretary in respect of NSW Health Pathology