Dickson v Secretary, Ministry of Health in respect of NSW Ambulance

Consideration

I am satisfied on the evidence that the Applicant has failed to prosecute the proceedings with due despatch.
However, in determining the dictates of justice in this particular case I am, pursuant to s 58(2)(b)(iii) of the Civil Procedure Act, to have regard to whether any lack of expedition has arisen from circumstances beyond the control of the party. As I have already explained, I am satisfied that the Applicant himself has not been the cause of the defaults. This being the case, the prejudice to the Respondent would need to be considerable to outweigh the prejudice the Applicant will suffer if his claim were to be dismissed, due to no fault of his own.
With the exception of ongoing stress to the various witnesses to be called by the Respondent, the possible diminution in the quality of evidence and the incurring of unnecessary costs, all of which is highly regrettable, the prejudice to be suffered by the Respondent may be remedied by changing the dates of the hearing and adjusting the timetable accordingly. This of course affects not only the Respondent, but the Commission itself and all the other litigants who seek relief from the Commission. However, ultimately the delay experienced in this matter has been relatively short.
While the Applicant had failed to file and serve evidence on four occasions in breach of three sets of orders and failed to honour three additional commitments made to the Respondent's solicitors, the period of the breach is just under two months and has been explained, albeit in an unsatisfactory fashion. This compares to a four-month delay in Poore v Commissioner of Police, NSW Police Force [2022] NSWIRComm 1079 which was wholly unexplained. The delay in Musicka v Health Secretary in respect of NSW Ambulance [2022] NSWIRComm 1055 was also around two months, however it was compounded by failures by the applicant to appear when the matter was listed and to respond to correspondence sent by the Registry.
The Respondent referred me to my decision in Barbagiannis v Commissioner of Police, NSW Police Force [2022] NSWIRComm 1097 although this was an application by the applicant to rely upon late filed and served material. I refused the application in circumstances where, although the delay was short, the applicant had failed to provide any explanation for failing to comply with the Commission's directions, even in circumstances where I had made a direction permitting the applicant to put on any submissions and evidence in support of his application. The respondent's solicitor submitted that the applicant's representative in that case, as in this case, appeared to be "pretty unsatisfactory". That is a fair observation. The difference between that case and this one however, is that the representative did not put on any evidence or otherwise submit, that he was the cause of the delay.
In the present matter I consider that the prejudice that the Applicant will suffer by a dismissal of the proceedings, through the loss of the ability to obtain the relief he seeks, in circumstances where he was not personally responsible for the defaults and delays and where the delay has been relatively short, outweighs the irremediable prejudice to the Respondent, being the unnecessary costs she had incurred, the ongoing stress and anxiety of the Respondent's witnesses and potentially, the diminution in the quality of evidence. This is not a case where it could be said that the Applicant, personally, in contradistinction to the Applicant in Poore or in Kabir, where the matter was still unresolved two years after it had been commenced, has luxuriated in the conduct of the proceeding to suit himself.
In the circumstances I made the following orders at the conclusion of the hearing on 22 June 2023: 1. Dismiss the Respondent's Notice of Motion filed on 15 June 2023. 2. The compliance hearing listed on 28 June 2023 is vacated. 3. The time for the Applicant to file and serve an outline of submissions is extended to 26 June 2023. 4. The time for the Respondent to file and serve written statements, an outline of submissions and any other relevant documentation is extended to 31 July 2023. 5. The time for the Applicant to file and serve any evidence and submissions in reply to the Respondent's documents is extended to 7 August 2023. 6. The hearing on 31 July 2023 and 1 August 2023 is vacated and in lieu thereof the matter is listed for hearing on 16 and 17 August 2023. 7. If the Applicant defaults in compliance with Order 3 or Order 5, the Applicant must file and serve with 24 hours of his default an affidavit setting out why the default has occurred and why his unfair dismissal application should not be dismissed for want of prosecution pursuant to Rule 12.7 of the UCPR. 8. If the Applicant defaults in compliance with Order 7 the proceedings will be dismissed. 9. Liberty to the parties to apply to have the matter relisted on short notice. 10. The parties have leave to file documents by email.
In the course of preparing these reasons I realised that I omitted to grant leave to the Applicant to rely on the statement he filed on 15 June 2023. Such leave is necessary due to Order 3 made on 14 June 2023. Mr Kernick did not formally make an application for leave. When asked about why he filed the Applicant's statement over three hours after the stipulated deadline he submitted: That's merely - simply that's my error - simply through no fault of my client whatsoever. I do apologise, Commissioner, to my friend so, when I read the orders, I stopped reading when I saw the date. It wasn't until the following day that I actually saw the 9.30am. So, given those circumstances there, it's certainly through no fault of my client. It was certainly ready to go on 14th, the day before, but I had several court appearances on that date of 15th and then when I reviewed - when I was going to file it - again it was my error that I assumed, and one should never assume, that it was a 4pm - I thought that I had the time and obviously the panic had set in once I saw the 9.30am. So, on that basis, it's extremely prejudicial to my client, should that be rejected or not be allowed to be relied upon. Again, certainly through no fault of his own.
It is more than regrettable that none of this information had found its way into Mr Kernick's affidavit of 21 June 2023. Nevertheless, for the reasons I have already discussed, I agree with Mr Kernick that it would be unacceptably prejudicial to the Applicant if leave were not granted to allow the Applicant to rely on his statement filed on 15 June 2023. Accordingly, I make the following further order: 1. The Applicant has leave to rely on his statement filed on 15 June 2023.
There is final observation I wish to make. As I said to Ms Moton at the conclusion of the hearing of the motion, the motion was properly brought. The Applicant has failed to prosecute the proceeding with due despatch. As it has transpired, the reason for that lies squarely at the feet of the Applicant's solicitor.
In the circumstances I gave some consideration as to whether I had the ability to require Mr Kernick to show cause why I should not make an order pursuant to s 99(2)(c) of the Civil Procedure Act, requiring him to indemnify the Respondent against the costs she has incurred as a result of his conduct.
Prima facie, s 99 of the Civil Procedure Act applies to this Commission: Civil Procedure Act, s 4(1), Schedule 1. So far as I am aware s 99 has never been utilised by this Commission, to make a legal practitioner liable for unnecessary or wasted costs where such costs have been caused by the practitioner. This is likely because of the terms of s181(2) of the Industrial Relations Act, which provides that the Commission may award costs only in four types of cases. Unnecessary or wasted costs occasioned by a legal practitioner are not listed in s 181(2). However, s 181(1), which gives the Commission power to award costs, is expressed to be subject to "the rules of the Commission and any Act or law". It may well be arguable that the Commission does have the power to make costs orders against legal practitioners pursuant to s 99. Nevertheless, given the lack of precedent and in the absence of any application by the Respondent, I have determined not to require the Applicant's solicitor to show cause as to why a costs order pursuant to s 99(2)(c) should not be made against him. Janet McDonald Commissioner

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Judgment (7 paragraphs)

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Cases Cited (9)