Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 3) [2007] NSWIRComm 47

LEGISLATION CITED: Industrial Relations Act 1996 Industrial Relations Commission Rules, Rule 146

CASES CITED: Chand, Bimla v State Rail Authority of NSW - PR975108 [2006] AIRC 848

APPLICANT No appearance 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

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

1 The Commission has before it a notice of motion with accompanying affidavit filed on 27 February, 2007 by the applicant, Ms Elka Simjanovska in the above proceedings against the Roads and Traffic Authority of New South Wales ('the respondent'). The notice of motion filed by the applicant essentially seeks the following: s an order to extend time for the filing of the applicant's evidence in reply until after 15 May 2007; s an order to vacate the hearing dates set to commence on 8 March, 2007 until at least two weeks after the filing of the applicant's evidence in reply; and s an order permitting the amendment of the applicant's evidence filed on 12 January, 2007 and for the admission of new evidence. 2 It is noted at this point that the applicant filed her evidence in chief on 10 and 12 January, 2007 after securing an extension of time from Boland J. The respondent filed its evidence (consisting of some 2200 pages of material) on 14 February, 2007. The applicant was required to file her evidence in reply by 4pm on 2 March, 2007 and this later direction has not been complied with. 3 The applicant claims she is currently sick and unable to prepare for and participate in her substantive proceedings, particularly having regard for the bulk of the respondent's material. She provided a doctor's certificate dated 22 February, 2007 which disclosed that she presented with numerous symptoms which in the doctor's opinion made her unfit for work and for the preparation and participation in proceedings from 22 February to 9 March, 2007. The applicant also claimed to be sick from 4 -12 January, 2007. The Commission required an affidavit be filed from the doctor and that he be available for cross-examination today.

4 She said she was sick for 30 days since 10 November, 2006 when final directions were issued and has had to prepare for, and attend an appeal against my interlocutory decisions of last year, prepare and attend a notice of motion relating to privilege, prepare and attend a further listing of a further two summonses for production issued to the respondent and a third party. 5 On 2 March, 2007 the applicant wrote to the Commission indicating she was too ill to attend the Commission today and relied on her earlier doctor's certificate in this regard. The Commission immediately replied by indicating that I expected her attendance on 6 March, an affidavit from her doctor and his attendance for cross-examination. A failure to attend might result in my deciding the notice of motion "on the papers". 6 On 5 March, the applicant wrote to the Commission seeking a new date for the hearing of this notice of motion until after 23 March, 2007. Further, on 5 March, the applicant filed a six page amended notice of motion seeking to adjourn today's notice of motion until her recent summons to produce, opposed in part by the respondent, is dealt with. 7 The applicant failed to attend today's proceedings and failed to provide satisfactory reasons for her non-attendance. 8 Ms Nand for the respondent submitted that the applicant's non-attendance today was problematic, particularly having regard for the history of these proceedings. She submitted that the Commission has three options available to it:

1. To substantially grant the applicant's notice of motion; the effect of which would be to grant an extension of time for her reply evidence and to vacate the hearing dates.

2. Adjourn all of the proceedings indefinitely until such time as the applicant provides a comprehensive medical report that she is fit to conduct her proceedings. Ms Nand said it was unfair and costly for the respondent to be faced with "stop-start" interlocutory proceedings without knowing when, or if the substantive case will be heard.

3. Dismiss the notice of motion and proceed with the substantive proceedings on Thursday, 8 March. If the applicant fails to attend and fails to provide satisfactory medical evidence of her failure to attend, the respondent may seek to have all of her applications dismissed for want of prosecution, pursuant to Rule 146 of the Commission Rules. 9 I would observe from the outset that I have serious doubts as to whether the state of the applicant's health prevents her from preparing and prosecuting her substantive proceedings. The doctor's certificate does not confirm the existence of the various symptoms there identified; rather he merely reports that the applicant 'presents' with such symptoms. No treatment is mentioned on the certificate. Further, there is no confirmation through test results that the applicant is as ill as she claims. Nor is there any indication that she seeks to undergo further medical investigation or testing or that she is being treated for these symptoms. 10 Moreover, the applicant's claim that she has, since November 2006, been too ill to prepare and prosecute her case does not comfortably reconcile with her ability to:

prepare detailed summonses for production against the respondent and a third party filed on 21 February, 2007;

prepare a detailed four page notice of motion and affidavit filed on 27 February, 2007;

prepare for appeal proceedings on 2 March, 2007 (although she did not appear on this day);

prepare for, and attend a notice of motion filed by her relating to claims of privilege over her medical reports;

prepare for, and attend proceedings in respect to an appeal against a decision of the Deputy Industrial Registrar heard by Haylen J on 12 February, 2007;

prepare a detailed six page amended notice of motion filed on 5 March and an accompanying three page letter.

It is also evident from her recent notice of motion that she has at least read the material filed by the respondent. 11 I have previously indicated to the applicant that I believe she has more than enough material with which to properly conduct her substantive proceedings. I see no reason to alter this opinion. One might wonder, why all of her repeated energy and time she has expended in matters which she has been told are so peripheral, if not irrelevant to her case, would not be better spent on preparing for her substantive proceedings. 12 I am satisfied that there is sufficient material in the details provided by the applicant in her amended notice of motion and recent letters and from the material and submissions of the respondent to determine this matter. Indeed, it would seem the applicant actually invites me to do so by her non-attendance and yesterday's amended notice of motion. 13 At this stage, I am not convinced that the applicant should be afforded yet again, and for the third time, and adjournment of these proceedings. It is somewhat ironic that last year the applicant pressed the Commission for an urgent hearing of her claims of alleged victimisation. This request was accommodated by significant rescheduling of the Commission's list. Secondly, in respect to the grant of an extension of time for the applicant to file her evidence in reply, I note that nothing in this regard has been filed. While I might be well inclined to refuse this request, I propose to allow the applicant to file and serve her evidence in reply by 10:00am on 8 March, 2007. 14 Thirdly, in respect to the request for an order permitting the admission of new evidence, such request is refused. To the extent the applicant has had more that enough time and latitude to bring forward her substantive case, there is no reasonable basis to permit the calling of new evidence. In any event, I ascertain that anything she wishes to bring as new evidence is more likely as a result of the respondent's filing of evidence and therefore more appropriately should be dealt with in reply. 15 It follows that I expect the substantive proceedings will commence at 10:00am on Thursday, 8 March, 2007. 16 However, I intend, and not without some reluctance, to allow the applicant one last opportunity to comply with the Commission's directions in respect to her alleged illness. The applicant will be permitted to reagitate her request for an adjournment based on any further medical evidence in the form of an affidavit from her doctor and his attendance in court, or a more detailed medical report provided by 10:00am on 8 March, 2007. 17 Let there be no doubt that the Commission has the power and the obligation to require her doctor to attend the proceedings or at least provide further details of the applicant's illness. See: Chand, Bimla v State Rail Authority of NSW - PR975108 [2006] AIRC 848. The extent the applicant criticises the Commission in this regard and questions my power to do so, she is plainly wrong. The Commission must be satisfied that the applicant's illness is genuine. At this stage, I am not so convinced. 18 In respect to her advice that a Full Bench has granted an extension of time for the filing of a submission in reply to her appeal and consequently her appeal will not be heard before the substantive proceedings, I intend to address this difficulty as follows: In the event the applicant is successful in her appeal, leave may be granted for her to re-open her case to admit any evidence which is presently subject to appeal as to its admission. 19 The applicant's amended notice of motion is otherwise dismissed consistent with my earlier rulings. The applicant is advised that the respondent may seek to have her substantive matters dismissed for want of prosecution if she fails to attend the proceedings on Thursday, 8 March, 2007 and fails to provide a satisfactory explanation for her non-attendance.

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