Issa v Department of Customer Service [2025] NSWIRComm 1019

1. This is a brief background and summary of the issues as they relate to what I must consider today. This is in no way intended to be a thorough history of the matter or the issues, particularly given this is an ex tempore decision.
2. After a failed conciliation, directions were made by O'Sullivan C with respect to filing and serving evidence. Those directions or orders are known as the usual directions in this jurisdiction. The Commissioner listed the matter for hearing on 19 and 20 March 2025.
3. As a result of those usual directions, the matter came before me for a compliance hearing on 10 March 2025.
4. The respondent had failed to file in accordance with the usual directions as ordered by the Commission and filed their submissions and evidence over a series of days after the date on which they had been ordered to file.
5. During the course of that listing, I made case management directions which allowed the respondent to rely on two statements which had been filed late, approximately an hour or so after they were due.
6. Additionally, I indicated that anything filed after the time of those statements would require leave from the Commission at the commencement of the hearing to be relied upon, as they had been filed in contravention of the usual directions.
7. To remedy prejudice caused to the applicant by the respondent's failure to comply with the orders and directions of the Commission, I further varied the case management directions to afford the applicant time to consider the material and respond to it.
8. On 13 March 2025 the applicant sought to review my decision pursuant to UCPR 49.19 and 49.20 by way of notice of motion. As a consequence of that motion, the hearing date of the substantive matter was vacated.
9. A further hearing date was allocated, and a fresh set of usual directions were made with regard to the filing and serving of evidence in the substantive matter.
10. O'Sullivan C heard the review on 11 April 2025 and the motion was dismissed.
11. On 29 April 2025 the applicant filed an application for leave to appeal that interlocutory decision to the Full Bench of the Commission. As part of his application, the applicant sought a stay of the Commissioner's decision.
12. The stay is due to be heard by the Deputy President of the Industrial Relations Commission, Paingakulam J, on 14 May 2025.
13. No directions have been made with respect to filing or serving any evidence or submissions, in so far as I am aware as informed by the parties, on that stay application.
14. The substantive matter is presently listed for hearing on 28 to 30 May 2025. The following usual directions were made on 11 April 2025:

(1) The applicant shall, by 4:00pm on 8 May 2025, file and serve:

(a) Any evidence in reply; and

(b) An outline of submissions in reply, not exceeding 20 pages, spaced line and a half.

(2) The matter is listed for In Person Compliance Check Hearings at 9.15am before the registrar on the following date:

(a) 12 May 2025, which will be vacated if order 1 is complied with.

1. On 28 April 2025 the applicant wrote to the registry seeking leave to vary those directions with respect to filing his material until the stay application had been considered by the Deputy President.
2. On 5 May 2025 the respondent notified the Commission via the registry that they opposed the variation.
3. The respondent's position is, in essence, that the appeal to the Full Bench is of the applicant's own making and given the amount of time he has had the material from the respondent, there is no need for extra time to be afforded to him to provide any response in the substantive proceedings.
4. The applicant's position is that he is self-represented and so has concerns about preparing material in the substantive proceedings while also preparing to appear at the stay application before the Deputy President.
5. The applicant, as I said, is self-represented but in my view, he has shown himself to be very articulate and capable. I have no doubt he can do both, but I do not think it is an unreasonable concern for a self-represented applicant to have concerns about preparing for two hearings at the one time.
6. In my view, if I were to extend the time for the applicant to file his material, there is still sufficient time afforded to the respondent to adequately prepare for hearing in the usual way.
7. A significant concern I have is preserving the hearing date. It has already been vacated once, and I do not want the matter to be in a position where it must be vacated again.
8. Case management decisions are largely a balancing exercise and, in this instance, any detriment, if there was any, to be suffered by the respondent in allowing the applicant further time is, in my view, entirely outweighed by the prejudice that would be caused to the applicant if he were forced to comply with the timetable as it stands.
9. Accordingly, I make the following orders and directions:

The usual directions as ordered on 11 April are varied as follows:

(1) The applicant shall, by 4pm on 19 May 2025, file and serve any evidence in reply and an outline of submissions in reply, not exceeding 20 pages, spaced line and a half.

(2) The compliance listing on 12 May 2025 is vacated.

(3) The matter is listed for in-person compliance hearing at 9.15am before the Registrar on 21 May 2025, which can be vacated if the above order is complied with.