Gu v Nature's Care Manufacture Pty Ltd

1 This matter has been referred to me in accordance with the requirements of Practice Direction 17 to determine an application by Ms Bronwyn Anley ("the applicant") for a further variation to the directions made for the preparation of this matter for hearing. 2 In order to properly consider what is the fifth application by the applicant to vary directions made by the Commission, it is necessary to trace the history of this matter. 3 On 10 November 2008, The applicant filed an application pursuant to s 84 of the Industrial Relations Act 1996 ("the Act"), seeking relief from unfair dismissal. The alleged ground for the dismissal which is relied upon by the Department of Education and Training - Western Sydney Institute of TAFE ("the respondent"), is inefficiency. 4 On 13 November 2008, Commissioner McLeay conducted a conciliation conference and in light of the failure of the parties to reach a settlement made directions. In making these directions, the Commissioner took into consideration that the applicant would be overseas from 22 January 2009 until 28 March 2009. The Commissioner was told the purpose of the applicant going overseas was to adopt a child. The directions, which were agreed by the parties, took this factor and the Christmas/New Year period into account. 5 The following directions were made: 1. The applicant was to file her evidentiary material by 4 December 2008. 2. The respondent to file its evidentiary material by 13 February 2009. 3. The applicant to file any material in reply by 17 April 2009. 6 The matter was listed for a compliance callover before the Registrar on 16 December 2008. 7 On 2 December 2008, the applicant sought a variation to the timetable on the grounds that firstly, she did not have a solicitor and was awaiting advice from the Law Society's pro bono scheme and secondly, she had been unable to access certain documents that had been removed from her personnel file for the purposes of the conciliation conference. The directions were varied to provide that the applicant's evidentiary material be filed and served by 13 February 2009, the respondent's evidentiary material be filed and served by 13 March 2009 and any material in reply be filed and served by 17 April 2009. 8 On 15 January 2009, the applicant wrote to the Registrar advising that she was ill and could not attend a callover, which had been fixed for the purposes of setting hearing dates. The applicant also advised that she was not going overseas until 1 February 2009 and that she had still not seen a complete copy of her personnel file. She was yet to engage representation. 9 The matter was fixed for hearing on 28, 29 and 30 April 2009. 10 On 6 February 2009, Mr G Pinchen, the Principal of an organisation known as "A Whole New Approach Pty Ltd", wrote to the Registrar advising that he had been retained by the applicant. He further advised that on 3 February 2009, he had received approximately 600 pages of documents from the applicant. Mr Pinchen made, in these circumstances, an application to vary the timetable by two weeks. This application was granted with the applicant being required to file and serve evidentiary material by 27 February 2009, the respondent to file and serve its evidentiary material by 27 March 2009 and any material in reply to be filed by 17 April 2009. 11 On 26 February 2009, Mr Pinchen wrote to the Registrar advising that he no longer acted for the applicant. On the same day, the applicant sought, by email from the United States, a variation to the timetable to enable her to file her evidentiary material by 3 March 2009. This application was granted. 12 On 5 March 2009, the applicant forwarded a further email to the Registrar enquiring about the result of her request that the hearing dates be vacated. The applicant was advised that no such request had been received by the Registrar. 13 On 6 March 2009, the applicant forwarded a further email to the Registrar, copying an email dated 2 March 2009, which sought that the hearing dates fixed in this matter be vacated. The applicant also advised that a solicitor friend of hers, Ms A Wilson, who was not otherwise acting in the matter, was endeavouring to engage a barrister to represent her. 14 As the applicant was, once again, in default of directions made by the Commission, a further variation to the timetable was approved on 9 March 2009. The amended directions required the applicant to file her evidentiary material by 24 March 2009. The applicant was advised that in the event that any material was filed after this date, the Commissioner should give serious consideration to excluding such material from being relied upon during the hearing. The applicant was also advised that the Commission would not consider any further applications to vary the timetable or adjourn the hearing, based upon the grounds currently relied upon in the application of 6 March 2009. The dates set for the hearing were confirmed.

15 On 16 March 2009, a further application was received, by email, from the applicant. The applicant advised that she had engaged Ms L Goodchild of counsel to represent her and sought a further variation of the timetable to enable her to file her evidentiary material on 10 April 2009. 16 At the hearing of this application today, Ms Goodchild of counsel appeared for the applicant and pressed an application for a further variation of the timetable. The grounds relied upon by Ms Goodchild were that the applicant was in the process of adopting a child and was delayed overseas. Secondly, this was a sensitive time in the applicant's life. Thirdly, the late withdrawal of the applicant's representative. Fourthly, that a statement of evidence in draft form had been prepared. Fifthly that, as the applicant is still overseas, she is unable to comply with the directions. Sixthly, the applicant had engaged a solicitor, Ms Wilson, and counsel has been retained. 17 Ms Goodchild also referred the Commission to a decision of Deputy President Sams in Patricia Hale v Energy Australia (2000) NSWIRComm 41, particularly relying upon [15]. Counsel submitted that a proper explanation for the failure to comply with the Commission's directions had been provided. 18 It was further submitted by counsel that Mr Miles, who appears for the respondent had foreshadowed an application to have the proceedings dismissed. Ms Goodchild submitted that if that application was pursued she would seek an adjournment and costs because she had not received any notice of it, although counsel conceded that the respondent would not have been in a position to provide notice because a notice of appearance has not yet been filed. Furthermore, counsel contended that there was no or little prejudice to the respondent if the timetable was again varied and if the dates for the hearing were adjourned. 19 Mr Miles made an application that since the directions that were made by the Commission on 9 March had not yet expired, these proceedings should be adjourned until after 24 March 2009, being the date by which the applicant is required to file and serve her evidentiary material so that the respondent and the Commission could ascertain whether or not the applicant complied with this direction. In response, Ms Goodchild submitted that it was impossible for the applicant to comply with the current directions. 20 Mr Miles also opposed the vacation of the hearing dates at this time. Mr Miles pointed to the prejudice suffered by the respondent which he said included counsel who had been briefed in the matter returning the brief because of the uncertainty as to whether the matter would proceed for hearing on 28 April 2009. The respondent has also been inconvenienced so far as the availability of its witnesses were concerned. 21 Practice Direction 17 is designed to facilitate the just, quick and cost effective disposal of unfair dismissal proceedings before the Commission. Clause 12 of Practice Direction 17 provides that any directions made must be complied with and any application to vary directions after the conciliation conference must be made in writing and contain full supporting grounds. 22 Clause 13 of the Practice Direction provides that the day (or days) in which the application will be dealt with by arbitration are definite. Any application for an adjournment of the arbitration dates must be made in a timely way, be in writing and contain full grounds. Such applications will be considered and determined by a Presidential Member. The Practice Direction also provides that it should be understood that adjournment applications will be granted only on clear and compelling grounds. 23 This Commission has observed in a number of recent decisions that Practice Direction 17 will be strictly applied: Zammit v KTS Logistics Pty Ltd [2006] NSWIRComm 36; Gu v Nature's Care Manufacture Pty Ltd [2006] NSWIRComm 39; Vadim Dedov and Apollo Life Sciences Limited [2006] NSWIRComm 159; Pritchard v Trident Global Pty Ltd [2006] NSWIRComm 83 and Craig Maguire and Plasdene Glass-Pak Pty Limited [2006] NSWIRComm 112. 24 Furthermore, the applicant, in particular, should be aware that it is not unusual for matters to be struck out for want of prosecution (Rule 146 of the Industrial Relations Commission Rules 1996) where there has been a consistent failure to comply with the Commission's directions. Such an application was foreshadowed by Mr Miles. 25 Whilst the Commission is mindful of the applicant's personal circumstances, these were taken into account when the original timetable was fixed by Commissioner McLeay. The applicant did not leave to go overseas until 1 February 2009 and did so knowing full well of the directions that had been made and varied by the Commission regarding the preparation of her matter for hearing. 26 Recently, a Full Bench determined an appeal where, as a result of the continued failure of the applicants to comply with case management orders, Marks J struck out of the application for want of prosecution: International Sports Marketing Pty Ltd v Oasis Development Corporation Pty Ltd [2009] NSWIRComm 34. The Full Bench stated at [42]: One further matter should be mentioned before concluding the appeal. This application has been considered on its own, special, facts and should not be regarded as signalling a green light to parties to ignore directions made by the Court or to routinely flout the obligations imposed upon them by orders of the Court. The appellants in this case have received the benefit of considerable leniency in the preparation of a case for hearing that was filed in 2003. In other circumstances the Court may have been well justified in dismissing the proceedings for want of prosecution at a much earlier time. The flexibility of the Court in this regard cannot be presumed and parties should understand that they run a grave risk should they fail to proceed with the preparation of their case in a timely manner. 27 In determining this application, I am mindful of the Full Bench's observations in International Sports Marketing Pty Ltd. I am also required to take into consideration the overall interests of justice as between the parties and the intention of the Act that applications such as this must be heard and determined in a timely manner. 28 In State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146 at 168, the High Court observed: 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. 29 Taking into account that principle, the submissions made on behalf of the applicant and the respondent and the decisions referred to earlier, I propose to vary the timetable but only by the inclusion of a self-executing order. The application to vary the hearing dates is rejected. ORDERS 30 I make the following orders. 1. The applicant is to file and serve any material including witness statements that she wishes to rely upon on or before 4.00 pm on Wednesday 1 April 2009, in default of which, the proceedings brought by the applicant pursuant to s 84 of the Industrial Relations Act 1996 will stand dismissed. 2. The respondent is to file and serve any material including witness statements that it wishes to rely upon on or before 4.00 pm on Friday 24 April 2009. 3. The applicant is to file and serve any material in reply on or before 1.00 pm on Monday 27 April 2009. 4. The applicant should file a certificate pursuant to s 90 of the Industrial Relations Act 1996 on or before 4.00pm on Wednesday 1 April 2009. 31 I confirm that this matter is listed for hearing commencing at 10.00 am on Tuesday 28 April 2009 with 29 and 30 April 2009 being reserved to conclude the hearing.

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