Kaprivinjak and Others v Body Corporate Services

JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

Matter No IRC01/6887 Xiu Zhen Lin and Roseville Golf Club Limited Application by Xiu Zhen Lin re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2002] NSWIRComm 81

1 On 22 October 2001, Ms Xiu Zhen Lin ("the applicant') filed an application pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"), seeking relief in respect to her alleged unfair dismissal on 3 October 2001, by the Roseville Golf Club Ltd ("the respondent").

2 It is unnecessary for the purposes of this decision, to detail the reasons for the applicant's dismissal; suffice to note that it was a summary dismissal for alleged gross misconduct.

3 What is pertinent to this decision is the nature and conduct of the proceedings from when the matter was first listed on the 7 November 2001. On that occasion Mr A Tees and Mr A Wei from Duker and Associates appeared for, and with the applicant. Ms M Knight from Clubs NSW, with Mr R Davies appeared for the respondent.

4 After chairing private conferences with the parties, I formed the view, pursuant to s 87 of the Act, that the applicant's claim could not be settled and set the matter for arbitration. Directions for the filing and service of evidentiary material were issued accordingly.

5 The respondent subsequently complained about a statement received from the applicant, which was not prepared in the proper form. The respondent also claimed the applicant was in default of the Commission's directions. It requested a relisting of the matter.

6 The Commission acceded to the request and on 7 March 2002, Mr Tees informed the Commission that the applicant had left Sydney and was in employment somewhere in New South Wales. The applicant was unwell and had not been accessible to her legal representatives. She did, however, intend to pursue her claim of unfair dismissal and would travel to Sydney to "prosecute the application." (T.p 7) and was "definitely coming to Sydney on that date" (the hearing).

7 In respect to the applicant's original statement, the Commission expressed the view that there was an obligation on a party's legal representatives to file documents in accordance with the Commission's rules and procedures.

8 Mr Morgan, for the respondent, applied to vacate the hearing date. This was denied. My earlier directions were amended as follows: 1. That the applicant file and serve any affidavit material and such other evidence upon which the applicant relies by 4pm, Friday 15 March. 2. The respondent is to file and serve any affidavit material or other material upon which the respondent relies by 4pm, 27 March next. 3. The applicant file and serve any evidentiary material in reply by 10am Tuesday 2 April. This amendment to the timetable will not affect the hearing of the matter, which will commence at 10am Tuesday 2 April and continue on the subsequent two days. In respect to the shortened timetable such as requiring the applicant if she should choose to file any material in reply, by 10 am on the first day of the hearing, leave to apply during the course of the proceedings will be provided to the respondent, should it want to deal with any matter in reply that it would have otherwise not received notice of.

9 An unsigned affidavit of the applicant was received by the respondent four days late. The respondent wrote to the Commission and said it was seriously disadvantaged by the applicant's non-compliance with the Commission's directions. Nevertheless, the respondent had served unsigned affidavits on 29 March 2002. No application was made by either party in respect to the hearing scheduled for 2 April 2002.

10 However, at the outset of the hearing, Mr Tees sought an adjournment on the grounds that the applicant was in Brisbane and too ill to attend the proceedings. No medical certificate was presented. He said the applicant was undergoing stress about the circumstances of her dismissal. Mr Tees emphasised that the applicant "had every intention of pursuing the matter."

11 Ms Knight opposed any adjournment and applied to have the matter dismissed for want of prosecution, pursuant to Rule 146 of the Commission's Rules, on the grounds that the applicant had not pursued her claim with due diligence.

12 Ms Knight submitted that the applicant had twice been in default of the Commission's directions. The applicant's solicitor had assured the respondent, only the week before, that the applicant would be attending the hearing. The respondent had not even been warned that the applicant would not be attending, nor provided with any evidence as to the reason for her non-attendance. The respondent had been put to considerable time and expense in preparing it's case which would now not proceed.

13 The Commission made the following observations and directions: HIS HONOUR: Yes, what I propose to do is this, I will require the filing of an affidavit by the applicant indicating the reasons for her non-attendance and also if there is medical documentary proof of such reasons, such affidavit and documents to be filed within 14 days of today. I will review that material and determine whether or not the matter should be re-listed for further directions. However, if at the expiry of 14 days I do not receive such affidavit and documentary evidence of the reason for her non-attendance, the matter will be dismissed for want of prosecution. Now I appreciate that that places you in a similar position as you have been throughout this matter, Mr Tees, but if it hasn't been done, it is simply not fair and not serving the interests of justice to have the respondent placed in this position. TEES: Deputy President, I will put it in writing to the applicant that that is the case. I think that is manifest. HIS HONOUR: Yes. Well, I know it's not strictly supportive of your submission, Ms Knight, but in the circumstances I will permit the applicant one last opportunity to convince me that there is a bona fide desire on her part to pursue her application; and if I am not so convinced, or indeed if she does nothing about what I have just directed, then you can be comforted by the knowledge that, more than likely, the matter will be dismissed for want of prosecution.

14 As of the date of this decision some 22 days after 2 April, the Commission has received no communication from the applicant's solicitor, let alone a satisfactory explanation for the applicant's non-attendance on 2 April 2002.

15 I propose therefore to determine the respondent's application to dismiss this matter for want of prosecution.

16 The discretionary powers of the Commission to dismiss a matter for want of prosecution are to be found in Pt 17, Div 4 of the Commission's Rules - Want of Prosecution. Rules 146 and 147 provide: 146 Where any party has not done any act required to be done by or under the Act or any other Act or otherwise has not pursued the proceedings with due diligence, a tribunal may: (a) Order that the application be dismissed for want of prosecution; or (b) Fix a definite time for the doing of the act and at the same time order that upon non-compliance the application shall stand dismissed for want of prosecution or subsequently, in the event of non-compliance, order that it be dismissed; or (c) Make such further or other order as in the circumstances may seem just. 147 Subject to any right of appeal, where a tribunal dismisses an application for want of prosecution the applicant shall not claim the same relief in fresh proceedings

17 In Kaprivinjak and others v Body Corporate Services (NSW) Pty Limited, 87 IR 49, Peterson J considered similar provisions in the Supreme Court Rules and the general principles that have been distilled from judgments of the Supreme Court. The Commission's discretion in this matter is referred to in Pt 19, Withdrawals and Discontinuance, Div 4, Want of Prosecution, of the Commission's Rules. Rules 146 and 147 provide: "Want of Prosecution 146. Where any party has not done any act required to be done by or under the Act or any other Act or otherwise has not pursued the proceedings with due diligence, a tribunal may: (a) Order that the application be dismissed for want of prosecution; or (b) Fix a definite time for the doing of the act and at the same time order that upon non-compliance the application shall stand dismissed for want of prosecution or subsequently, in the event of non-compliance, order that it be dismissed; or (c) Make such further or other order as in the circumstances may seem just Effect of dismissal 147. Subject to any right of appeal, where a tribunal dismisses an application for want of prosecution the applicant shall not claim the same relief in fresh proceedings." The primary objective of the discretion to dismiss a matter under r 146 appears to me to be synonymous with that which arises under Supreme Court Rules (NSW). Mr Rogers made the point that r 147 creates a position different to that under the Supreme Court Rules (NSW) in that a dismissal for want of prosecution in this Commission creates a res judicata in relation to the relief sought. There is no such equivalent in the Supreme Court Rules (NSW). However, as Mr Corsaro submitted, in the Supreme Court there is generally no point in seeking to have the matter dismissed for want of prosecution if it is within the limitation period and capable of being recommenced. The point thus is usually taken in minutes in respect of which the limitation period has expired and accordingly the effect is the same: a dismissal is final. In the Supreme Court the leading point of reference in the Authorities is the judgement of Cross J in Calvert v Stollznow (unreported, 1 April 1980, Supreme Court Procedure, Vol 2, pp 8528-8545) affirmed on appeal in Stollznow v Calvert [1980] 2 NSWLR 749. As a result of those judgments the following principles may be expressed: 1. Each case must depend on its own facts, without adherence to rigid formulae. 2. The Court must decide whether or not on balance justice demands that the action should be dismissed 3. The blamelessness of a plaintiff personally for the delay is a fact relevant to be considered. Any fault of the plaintiff's solicitor should not, as a matter of course, be attributed vicariously to the plaintiff. 4. Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered, is credible and satisfactory.

18 While his Honour was dealing with unfair contract proceedings in the Commission in Court Session under s275 of the Industrial Relations Act, 1991, the relevant rules were then, and are now applicable, to all proceedings of the Commission, whether sitting as the Court, or otherwise.

19 It seems to me, therefore, that his Honour's summary of the principles to be applied is a helpful guide to my conclusions in the instant circumstances of this case.

20 One other Full Bench authority is pertinent - although not directly relevant to the respondent's application under Rule 146 in the present case. In the Spanish Club v Australian Liquor and Hospitality and Miscellaneous Workers Union, New South Wales Branch, 87 IR 294, the Full Bench considered the powers of the Commission where a party failed to comply with directions of the Commission in respect to the filing of evidence. The Full Bench said: It is imperative that parties to proceedings before this Commission comply with directions designed to facilitate the efficient and effective determination of matters before the Commission. Absent any proper explanation, any party in default of the direction will run the risk of a sanction imposed by the presiding member of the Commission.

21 In the present case the applicant did not strictly comply with the Commission's directions. The result was the matter was relisted with new directions issued. Again the directions were not complied with. However, the failure to comply with such directions was not sufficiently serious as to jeopardise the orderly and efficient conduct of the proceedings. Certainly, the failure was not of sufficient gravity as to justify the sanction of dismissing the application for want of prosecution.

22 However the issue here is the failure of the applicant to attend the proceedings and offer a proper explanation for her non-attendance. It may well be that the applicant still wishes to pursue her application; but seemingly only at her convenience. As Cross J said in Calvert v Stollznow (unreported, 1 April 1980, Supreme Court Procedure, Vol 2, pp 8528-8545), "Litigation is not a game."

23 This situation is plainly intolerable and creates an untenable position for the respondent. The respondent does not know when, or if, it has a case to answer. In my estimation, these circumstances equate to a failure of the applicant to pursue her application "with due diligence" in accordance with Rule 146.

24 Notwithstanding the force of the respondent's submission on 2 April to dismiss the matter at that time, the Commission exercised it's powers under Rule 146(b) to require the applicant, within 14 days, to file an affidavit with accompanying medical certification of the reason for her non-attendance on 2 April. As stated earlier no affidavit was filed and no further contact has been made with the Commission.

25 In my opinion, the Commission has given the applicant every opportunity to explain her position and pursue her claim. She alone, is responsible for the outcome in this case.

26 Before finally determining this matter, it is necessary to observe that dismissing an application for want of prosecution is a most serious matter. The Commission's power to do so should be exercised with considerable care and caution. This is implicit in the authorities to which I have earlier referred. See also Teeling v Steingold and Abel, t/as Steingold Abel Lawyers (unreported, McKenna C, Matter No IRC 4226 of 2000, 15 February 2002)

27 Each case must be decided on its own particular facts and circumstances. However, there will invariably arise a point, in the failure of an applicant to pursue his/her case with due diligence in which the interests of justice, and the efficient and orderly conduct of the Commission's case load, demands that an application be dismissed for want of prosecution.

28 I am satisfied that this is one such case. Pursuant to Rule 146 of the Commission's Rules, Matter 6887/01 is hereby dismissed for want of prosecution. The proceedings are concluded.

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.