Koprivnjak & Ors v Body Corporate Services

Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Commission Rules Supreme Court Rules

Hakim and Hakcom Investments Pty Ltd & anor [2004] NSWIRComm 405 CASES CITED: Koprivnjak & Ors v Body Corporate Services (NSW) Pty Limited (1999) 87 IR 49 Piriz v AAPT Limited [2005] NSWIRComm 374

APPLICANT (respondent to motion) No appearance LEGAL REPRESENTATIVES: RESPONDENT (applicant on motion) Mr R Hitchen Northern Sydney Central Coast Area Health Service

• 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Jane Louise Allan and Northern Sydney Central Coast Area Health Service

Application by Jane Louise Allan re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION ON NOTICE OF MOTION [2009] NSWIRComm 166 1 On 30 September 2009, the Commission dismissed this matter for want of prosecution pursuant to Rules 146 and 147 of the Industrial Relations Commission Rules. I now provide my reasons for doing so. 2 The Commission was moved by a notice of motion filed on 17 September 2009, by the respondent in this matter, the Northern Sydney Central Coast Area Health Service. The notice of motion sought the dismissal, for want of prosecution, of a substantive unfair dismissal application lodged by Jane Louise Allan ('the applicant') on 1 July 2009, pursuant to Pt 6 Ch 2 of the Industrial Relations Act 1996 ('the Act'). The notice of motion was accompanied by the required affidavit sworn by Mr Adam Quested, Workforce Services, Royal North Shore Hospital. The reason/s for the applicant's dismissal are not relevant for the purposes of this decision. However, a brief chronology of the history of the proceedings is necessary as it will establish a firm basis for my conclusion that the matter should be dismissed for want of prosecution. 3 When the substantive application was filed on 1 July 2009, it was accompanied by an affidavit of urgency filed by the applicant. The matter was listed on 6 July 2009, with Mr S O'Halloran from White Barnes Solicitors appearing for the applicant. Mr O'Halloran advised that he had been unable to contact the applicant and he had no instructions from her. He submitted however, that the applicant's career as a medical practitioner had been effectively suspended following her training contract coming to an end without her having fulfilled the requirements of the contract. 4 Ms J Neve, for the respondent, submitted that the termination of the applicant's contract raised a jurisdictional issue in that she had not been dismissed, unfairly, or otherwise. The matter was adjourned for report back on 21 July 2009. However, on 13 July 2009, Mr O'Halloran wrote to the Commission advising that despite repeated requests to the applicant, she had failed to return calls and therefore White Barnes filed a notice of ceasing to act. He advised that the applicant had been informed of the 21 July 2009 report back listing. On that occasion, there was no appearance by either party; the respondent being under the misapprehension that the matter had been withdrawn. The applicant was advised by mail of the listing of the respondent's notice of motion on 30 September 2009. She failed to appear. Mr Hitchen for the respondent submitted as follows: Firstly, the act requires that there is a public interest in ensuring a speedy resolution of litigation initiated in the commission and the notice of motion was brought pursuant to rules 146 and 147. Rule 146 requires a finding that a party has not pursued the proceedings with due diligence. We say that is the case with this application. Despite the affidavit of urgency filed on 1 July by Dr Allan. Neither Dr Allan or her legal representatives have sought to proceed the application since it was first listed on 6 July in proceedings before your Honour. The applicant and her legal representatives have been given reasonable notice of this notice of motion. As of today we have not heard or had any contact from Dr Allan or her legal representatives and we contacted the New South Wales medical board this morning to assess her current registration status and she still remains not registered. We suggest that one of the issues the commission would consider in the exercise of its discretion is the prospects of success. We would say that the contract of employment came to an end on 15 June, she is not currently registered with the New South Wales medical board, therefore the respondent health service could not employ her unless she is registered with the New South Wales medical board and the medical board couldn't register her unless she was allocated an intern position by medical training and this process was outlined to your Honour on the previous occasion by Dr Montague. There was an arguable case if the matter proceeded to hearing that the commission may not have jurisdiction to deal with unfair dismissal by an intern under regulation 6 because she is employed for a limited period and circumstances of that limited period, she is serving a period of probation or qualifying period which has been determined in advance which it was with Dr Allan and that period is more than three months and this maximum period is reasonable having regard to the nature and circumstances of the employment. We would think a period of internship is, by definition, a reasonable period for a doctor wishing to progress their training, become a specialist in due course. CONSIDERATION 5 Rules 146 and 147 of the Industrial Relations Commission Rules provide as follows: 146 Want of prosecution 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 Effect of dismissal 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.

6 It is now well established that the principles to be applied by the Commission in determining whether a matter should be dismissed for want of prosecution, are similar to the principles applicable under the Supreme Court Rules: See Koprivnjak & Ors v Body Corporate Services (NSW) Pty Limited (1999) 87 IR 49 and Hakim and Hakcom Investments Pty Ltd & anor [2004] NSWIRComm 405. His Honour, Staff J in Piriz v AAPT Limited [2005] NSWIRComm 374, helpfully summarised the relevant principles: 8 These principles were succinctly summarised by Simpson J in Raymond Hoser v Christopher Hartcher [1999] NSWSC 527 and respectfully adopted by me in Hakim v Hakcom Investments at [24] as follows: … 1. The ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited , unreported, 19 November 1995, per Sperling J. 2. The discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of discretion: Stollznow v Calvert . 3. Any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J. 4. Personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73. 5. A defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. Calvert v Stollznow, 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, par 13,022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestly JA.

6. Delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor; Calvert v Stollznow, per Cross J; Burke v TCN. Simpson J observed that in her view, this circumstance must be treated with some caution, noting that the weight that can be accorded to that delay is limited. 7. The onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise. 8. Prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay. 9. What the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. 10. The plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred), it is less likely that justice will be done by striking the action out: Razvan, per Kirby P.

11. The exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice. 9 In Mealey v Council of the City of Sydney (2004) 132 IR 177 at [51], the Full Bench, after considering r 146 observed: We wish to make two further observations. Rule 146 requires a finding that a party "has not pursued the proceedings with due diligence". In considering any application for want of prosecution it is important to make a proper assessment as to whether the history of the proceedings warrants such a conclusion… 10 In State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, the High Court observed at 154: …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.

7 After taking these principles into account and having regard for the fact that the applicant has failed to attend three listings of her application, with no explanation, I consider that this is a matter which meets all of the relevant tests of not being pursued with due diligence. Indeed, it seems obvious enough that it is not being pursued at all. 8 There is a public interest in ensuring a speedy resolution of litigation in the Commission. The applicant initially sought an urgent hearing of her application, yet has seemingly done nothing about progressing the matter. Notwithstanding there has been correspondence forwarded to her on numerous occasions, it is curious that she had not made any independent inquiries about her matter, given her early pleading for urgency. In my opinion, the respondent is entitled to have the unsatisfactory state of this application resolved without incurring further inconvenience and costs. 9 Accordingly, I am satisfied that the respondent's notice of motion should be granted. Matter number IRC 954 of 2009 is dismissed for want of prosecution pursuant to Rules 146 and 157 of the Industrial Relations Commission Rules. Peter J Sams, AM Deputy President

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