Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 1) [2006] NSWIRComm 405

LEGISLATION CITED: Freedom of Information Act 1989 Industrial Relations Act 1996 s 188, s 189, s 210 and s 213

HEARING DATES: 15/12/2006 EXTEMPORE JUDGMENT DATE: 12/15/2006

APPLICANT Elka Simjanovska (unrepresented) LEGAL REPRESENTATIVES: RESPONDENT Ms J Nand Spark Helmore Lawyers

• 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Matter No IRC 4554 of 2005 and 2762, 3138 of 2006 Elka Simjanovska and Roads and Traffic Authority

Application by Elka Simjanovska for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996

DECISION ON NOTICE OF MOTION (ex tempore) [2006] NSWIRComm 405 1 The Commission has been moved by a notice of motion filed on 11 December 2006 by Ms Elka Simjanovska ('the applicant') in victimisation proceedings brought under s 210 and s 213 of the Industrial Relations Act 1996 ('the Act'): Matters 4554 of 2005 and 2762 and 3138 of 2006 ('the substantive proceedings'). The respondent to those proceedings is the Roads and Traffic Authority of New South Wales (RTA). 2 The notice of motion seeks an order to vary and extend the date set by the Commission s for the filing of evidence by the applicant; s for filing the evidence in reply by the applicant; s for the hearing. 3 The applicant filed an amended notice of motion yesterday, 14 December 2006 and, notwithstanding the short notice, I dealt with the amendment in today's proceedings. The amended notice of motion sought a further order that the respondent produce documents which it was ordered to produce, or otherwise agreed to produce on 25 October 2006. 4 The timetable for the filing of evidence in the substantive proceedings was set by the Commission on 30 October 2006 in the following terms: 1. That the applicant file and serve any evidentiary material upon which the applicant relies by 4 pm on 5 January 2007. 2. The respondent file and serve any evidentiary material on which the respondent relies by 4 pm on 9 February 2007. 3. The applicant file and serve any evidentiary material in reply by 4 pm on 2 March 2007

and the dates for hearing were set on 10 November 2006, being 8, 9, 12, 13, 14 March and, if necessary, 16 March 2007. 5 Essentially the reason for the present amended notice of motion filed by the applicant is that she has lodged two appeals (Matters 3572 and 3585 of 2006) pursuant to s 188 and s 189 of the Act against numerous interlocutory rulings made by the Commission on 10 October and 10 November 2006. These rulings dealt with the applicant's request to summons or produce various RTA documents. It is said that the denied documents were critical to the applicant's evidentiary case in the substantive proceedings and, consequently the appeals (which will presumably determine whether such documents are to be produced, assuming leave is granted), should be determined before the substantive proceedings. I note that one of the appeals (IRC 3572 of 2006) was lodged out of time and the Commission has yet to rule on whether to grant an extension of time for leave to appeal and appeal pursuant to s 189 of the Act. 6 The applicant claims that her health and financial circumstances are such as to make it difficult for her to prepare for the substantive proceedings and appeal proceedings concurrently. 7 The Commission was advised (although not by the applicant, which she was obliged to do) that a stay of the proceedings was sought by the applicant and heard and determined by Kavanagh J on 13 December 2006. The stay sought was in the following terms: 1. The Commission has directed that the Appellant filed the evidence in matter IRC 2762 of 2006, IRC4554 of 2005, IRC 3138 of 2006 by 05 Januray (sic) 2007. The matter is appointed for hearing on 08 March 2007. 2. The stay of the proceedings and direction to file evidence on 05 Jnuary (sic) 2006 (sic) in matter IRC 2762 of 2006, IRC 4554 of 2005, IRC3138 of 2006 is required because the Appellant is not able to prepare her case and to produce the evidence until the leave to appeal and appeals pursuant to s. 187 and s. 188 in matter IRC2762 of 2006, IRC 4554 of 2005, IRC 3138 of 2006 is decided by the Commission. 8 As will be readily apparent, the stay orders sought are in identical terms to what the applicant seeks in the present amended notice of motion. As I understand the outcome, the stay of the proceedings was refused by Her Honour and this was not disputed by the applicant. 9 Ms Nand for the RTA opposed the notice of motion on four grounds:

1. The subject matter of the notice of motion has already been dealt with by Kavanagh J;
2. The dates for hearing have been postponed on an earlier occasion;

3. The applicant has sufficient material with which to prepare and prosecute her claims;

4. All documents requested under summonses or the notice to produce have been produced and some other documents cannot be located. CONSIDERATION 10 The Commission would firstly observe that this is the second occasion that the applicant has sought an adjournment of the hearing of her substantive proceedings; the proceedings were earlier listed for hearing over 5 days earlier this month. Thus the hearing has already been delayed three months at the applicant's request. 11 It is somewhat surprising that the applicant has continued to press this notice of motion in light of Kavanagh J's decision on the stay application three days ago. The present amended notice of motion seeks to reagitate the very same issue which Her Honour refused. However, this is not the first time the applicant has sought to challenge the Commission's rulings by subsequently re-filing an application or notice which is designed to reagitate procedural matters already determined with which she has been dissatisfied. Such a tactic is impermissible and will not be tolerated. Viewed in this way, the amended notice of motion is sailing periously close to being an abuse of the Commission's processes. However, at this stage, I make no formal finding in this regard. 12 I would be content to dismiss the amended notice of motion on the basis that it's subject matter has already been determined by a member of the Commission and cannot be now reagitated in order to achieve a substantially different result. 13 Notwithstanding this finding, I would also dismiss the amended notice of motion on the following basis. In my opinion, the applicant has more than sufficient material, whether relevant or not, including her personal file, the relevant RTA policies and numerous other documents, including under a privacy request and under the Freedom of Information Act 1989, to prepare her case in accordance with the established timetable and for the hearing to proceed as listed in March 2007. I would remind her, yet again, of the terms of s 210(2) of the Act as to the conduct of cases of this type in which there is a presumption in favour of the applicant required to be rebutted by the RTA. 14 That being said, if the applicant is successful with her appeals, in whole or in part, it will be open for her to seek to admit fresh evidence in the substantive proceedings, subject to the usual tests. I would emphasise however, that merely securing documents through summonses or notices to produce does not automatically mean that such documents will be relevant to the proceedings and admitted into evidence. Moreover, the applicant does not lose any appeal rights if following a decision in the substantive proceedings an appeal is lodged. Any such appeal would include interlocutory rulings of the kind I made on 10 October and 10 November 2006. 15 The applicant claims that her health and financial circumstances make it difficult for her to prepare for the substantive proceedings and the appeal proceedings concurrently. Leaving aside that there is no current medical evidence to support her claim, this submission sits rather uncomfortably with what the applicant has often told me - that she has legal advice from more than one source. If this be true (and despite my repeated requests for her to name her legal adviser which she refuses to do) then the principal burden for preparing her litigation must rest with her legal advisors. 16 As for the order sought for the respondent to produce documents it was ordered to produce or otherwise agreed to produce, I would expect any responsible party to proceedings to comply with orders made by the Commission or undertakings given to the Commission in that respect. I accept Ms Nand's undertakings in this regard. The fact that the applicant is dissatisfied with what has been produced, complains about its compilation, or cannot identify the very documents she requested, (bearing in mind the enormous amount of material provided to her or otherwise in her possession), is no basis to seek a further order from the Commission. That part of the notice of motion is also refused. 17 Finally, I note that Her Honour offered to assist the parties in further conciliation today. This offer should be warmly embraced by both parties and hopefully, settlement of the applications, with Her Honour's assistance, can be achieved. 18 The amended notice of motion filed by the applicant on 14 December 2006 in Matters 4554 of 2005 and 2762 and 3138 of 2006 is formally refused. The timetable for the filing of evidence and the hearing dates listed for March 2007 are reconfirmed: (See para 4).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.