Kaprivinjak and others v Body Corporate Services

Matter No IRC03/659 Talim Hussain and New South Wales Department of Education and Training. Application by Talim Hussain re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2003] NSWIRComm 455

1 This matter was listed for hearing of a notice of motion on 14 November 2003. The notice of motion sought the following orders: 1. an order that these proceedings be dismissed; or in the alternative 2. an order that the proceedings be permanently stayed; and 3. any other such orders as the Commission may deem appropriate.

2 At the conclusion of the hearing the Commission dismissed the matter for want of prosecution. I now publish my reasons.

3 The applicant, Mr Talim Hussain, was dismissed on 28 January 2003 from his position as a primary school teacher, employed by the New South Wales Department of Education and Training (the 'respondent'). On 10 February 2003 the applicant filed a claim of alleged unfair dismissal, pursuant to section 84 of the Industrial Relations Act, 1996 (the 'Act').

4 It is unnecessary for the purposes of this decision to detail the circumstances surrounding the applicant's dismissal. It is sufficient to note that the applicant commenced casual employment in September 1999 and worked regular hours each week. He was appointed as a permanent teacher on 5 June 2001, after twelve months probation. He was dismissed for alleged performance related issues.

5 It is necessary to set out a brief outline of the history of this matter.

6 Conciliation proceedings were listed on 26 March 2003 but were adjourned to 16 April due to the absence of the applicant. At that time, the applicant was legally represented by MacMahon Associates. The matter could not be resolved and was set for arbitration on 14 October 2003. Directions were issued for the filing and service of evidence.

7 On 18 July 2003, MacMahon Associates wrote to the respondent and advised that the applicant accepted a settlement proposal.

8 Soon after, the Commission received a letter from the respondent advising that the parties had reached a formal settlement which the applicant now would not accept. The respondent regarded the settlement as a binding agreement. The matter was subsequently listed for further directions on 1 October 2003.

9 On that occasion there was no appearance by, or for the applicant and no explanation was provided. MacMahon Associates had filed a notice of ceasing to act on 17 September 2003.

10 It was obvious that no useful purpose could be achieved by proceeding with the listing in the absence of the applicant. The matter was adjourned for a week with a warning issued by the Commission that the application risked being dismissed for want of prosecution should the applicant fail to attend on the next occasion. The applicant was advised in writing accordingly.

11 The Commission relisted the matter for further directions on 10 October 2003. On that occasion, Mr Hussain appeared unrepresented and Ms B Charlton appeared for the respondent.

12 Ms Charlton submitted that a formal settlement of the matter had been reached and that the applicant refused to honour the agreement by refusing to sign a deed of release. She asked the Commission to make a finding that the agreement was binding. Ms Charlton sought to have determined the notice of motion seeking to have the matter dismissed or, in the alternative, permanently stayed. Mr Hussain denied that an agreement had been made and opposed the respondent's submissions.

13 The matter was listed for hearing on the notice of motion on 14 November 2003. Directions were issued for the filing and service of further affidavit material by the applicant. No evidence was filed.

14 The applicant failed to attend and was unrepresented at the hearing of the notice of motion on 14 November 2003. The applicant had offered no explanation to the Commission for his non-attendance or his failure to comply with directions. In view of these circumstances, it was difficult to imagine how the hearing could proceed in any sensible or conclusive way.

15 Following my usual practice of allowing a fifteen minute misadventure time for an absent party to arrive, phone contact was attempted to be made with the applicant. This proved unsuccessful.

16 After expressing the Commission's disappointment with the sequence of events which had now resulted in a waste of a day's hearing, Mr Benson of counsel, now appearing for the respondent, sought to have the application dismissed. He relied on two affidavits from Beverley Charlton (Ex 1) and Joanne Macara from MacMahon Associates (Ex 2) and two letters sent to the applicant on 29 October and 5 November respectively, to which no response had been received.

17 I note that as at the date of this decision, no contact has been made by the applicant with the Commission; nor has any explanation been provided for his failure to attend the proceedings on the 14 November 2003.

18 The principles to be considered by the Commission in determining whether to dismiss a matter for want of prosecution were helpfully discussed by Peterson J, in Kaprivinjak and others v Body Corporate Services (NSW) Pty Limited, (1999) 87 IR 49: 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. Rule 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 foe 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 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 judgment 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 that has been offered for the delay, and whether any explanation or excuse that has been offered, is credible and satisfactory.

19 While his Honour was there dealing with unfair contract proceedings before the Commission in Court Session under s 275 of the 1991 Act, the relevant rules are identical to those applying under the 1996 Act and are applicable to proceedings in both the Commission and Commission in Court Session.

20 In my opinion, there can be no doubt that the applicant has not pursued these proceedings with due diligence. I have serious doubts as to his bona fides in pursuing his claim. Directions for the preparation of the hearing on the notice of motion were ignored and no explanation or excuse offered. He failed to attend the date for hearing and again, offered no explanation or excuse.

21 While the Commission does not find it necessary to rely on the failure of the applicant to comply with directions of the Commission, his failure to do so is indicative of a lack of diligence to prosecuting his claim.

22 The circumstances here disclosed are not dissimilar to those I considered in Xiu Zhen Lin v Roseville Golf Club Limited [2002] NSWIRComm 81, where the applicant failed to attend arbitration proceedings in a claim of alleged unfair dismissal and offered no explanation for her failure to attend. I said in paragraphs 23-27: 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. 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. 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. 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) 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.

23 In my opinion, the balance of justice demands a similar result here.

24 It would also seem to be comfortably open for the Commission to dismiss this matter based on the uncontested affidavits of Ms Charlton and Ms Macara concerning the settlement of the applicant's claim in July 2003. However, pursuant to r146 of the Industrial Relations Commission Rules, Matter 659/03 is hereby dismissed for want of prosecution. The proceedings are concluded. PETER J SAMS DEPUTY PRESIDENT

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