Poore v Commissioner of Police, NSW Police Force

The Applicant's Representation

1. At the outset of the hearing I confirmed with the applicant that he is paying Mr Gareth Rogers to act as his agent in this matter. This is consistent with correspondence Mr Rogers sent to the respondent's solicitor on 14 September 2022, which I will refer to again below.
2. Section 166(1) of the Industrial Relations Act 1996 (NSW) permits a party to proceedings before the Commission to be represented by an Australian legal practitioner or by an agent who is not such a practitioner. However, if an agent represents a party in proceedings before the Commission for fee or other reward, such an agent, being an 'industrial agent' as defined in the Act, is required pursuant to s 90A(2) of the Act, where the proceedings are 'compensation proceedings' as defined in s 90A(1) of the Act, to file a certificate with the Industrial Registrar certifying that they have reasonable grounds for believing, on the basis of provable facts, that the applicant's claim in the proceedings has reasonable prospects of success. If no such certificate is filed the industrial agent must not represent the applicant in the compensation proceedings. No discretion is available to the Commission to permit the industrial agent to appear on behalf of the party if s 90A(2) is not complied with.
3. The applicant in the present proceedings seeks compensation pursuant to s 89(5) of the Industrial Relations Act, as applied by s 181G of the Police Act, as alternate relief to reinstatement or re-employment, and consequently these proceedings are compensation proceedings within the meaning of s 90A(1) of the Industrial Relations Act.
4. When Mr Rogers appeared by AVL I informed him that as a paid agent he was required to file a s 90A(2) certificate and that as he had not filed such a certificate he was not able to represent the applicant in these proceedings. Accordingly, despite the order I made on 14 October 2022 permitting Mr Rogers to appear as the applicant's advocate at the hearing of the motion by AVL, I did not permit Mr Rogers to make any submissions on behalf of the applicant at the hearing. Instead, I heard directly from the applicant and as noted above, had regard to the written submissions which the applicant (via Mr Rogers) had attempted to file.
5. For completeness, I note that Mr Rogers filed a s 90A(2) certificate on 28 October 2022, two days after the hearing of the motion.

Background

1. As I have already noted, a direction was made by the Chief Commissioner on 12 April 2022 requiring the applicant to file and serve evidence and submissions by 24 May 2022. The applicant did not do so. On 26 May 2022 the respondent's solicitor wrote to Carroll & O'Dea with respect to the failure of the applicant to file and serve evidence, in default of the Commission's direction. The solicitors replied that day, advising that they no longer acted for the applicant and were in the process of filing a notice of ceasing to act with the Commission. This prompted the respondent's solicitor to immediately write directly to the applicant with respect to his failure to file and serve any materials.
2. On 26 May 2022 Ms Justine Amin, a lawyer employed by the respondent's solicitors, received a phone call from the applicant in which he said words to the effect that he intended to discontinue his application. Ms Amin sent an email to the applicant that afternoon confirming her conversation with him and advising that the respondent consented to the application being discontinued. The applicant replied to that email that evening advising that he no longer wished to discontinue his application, but rather he wanted to delay the hearing of his matter until after the hearing of another similar case in the Commission, which was being funded by the Police Association.
3. Importantly, the applicant made no attempt at this time or at any time thereafter, to have the matter formally adjourned, pending the resolution of this other allegedly similar matter. As Ms Shanahan submitted on behalf of the respondent, had he made such an application "the respondent would have had the opportunity to reserve [her] rights in respect to any claim for back pay … because .. the delay in that instance [would not be] as a consequence of the respondent's conduct." While this argument would likely still be available to the respondent at any final hearing, it is the case that if this was the applicant's desire, both the respondent and this Commission have been inconvenienced by the applicant's failure to approach the Commission at any time to have directions made, if appropriate, to allow the matter to await in abeyance pending the outcome of another case. In any event, the applicant has never applied to have these proceedings managed contrary to the usual procedure as outlined in Practice Note 17A and at the hearing of the motion he confirmed that he wished for the matter to proceed to hearing.
4. On 15 June 2022 the respondent's solicitors informed the applicant that they would seek to have the matter brought on for directions in circumstances where he remained in default of the Commission's orders and on the same day wrote to the Commission requesting that the matter be listed.
5. The proceeding was listed for a compliance check on 22 June 2022 and the parties were so advised by email notifications sent on 16 June 2022.
6. On 21 June 2022 at 4:18pm the applicant sent an email to the registry, without sending a copy to the respondent's solicitors, advising that he would not be attending the compliance check as he had a family member who was extremely sick and he had "chosen to spend these last moments with them." The email finished with the words "My evidence is below" and attached to the email was a one-page unsigned and undated letter, addressed to 'Commissioner' and commencing: 'I would appreciate these words be read out on my behalf.' The letter purported to explain why the applicant had not complied with the directions to be vaccinated for COVID-19. In short, the letter explained that the applicant regarded the mRNA vaccines as being 'experimental untested technology with no long term safety data'; that two of his family members had suffered adverse reactions after being injected with Pfizer and AstraZeneca vaccines; that the 'police commissioner exercised no duty of care to NSW police under Work Health Safety guidelines [and] no risk assessment were provided, no safety data of any kind let alone any actual scientific studies'; and that he regarded the directions to be vaccinated to be 'unlawful mandates.'
7. Neither the letter, nor the covering email of 21 June 2022, indicated when the applicant proposed to file his evidence and summary of case. To the extent the applicant regarded the attached letter as his filed evidence and/or submissions he was mistaken. The letter did not comply with the requirements to file and serve written statements and a summary of case because: 1. it was received by the registry by email in circumstances where leave had not been granted for the filing of documents electronically; 2. the letter was unsigned; 3. the letter was never served on the respondent by the applicant.
8. On receipt of the applicant's email on 21 June 2022 the Registrar adjourned the compliance check to 6 July 2022 (to be conducted by teleconference), and sent an email to the applicant, with a copy to the various representatives of the respondent, including the respondent's solicitors, which included the applicant's original email (without its attachment), advising of the adjournment and which also stated: I note that no documents appear to have been filed as yet in your matter. The compliance check is an opportunity to seek an amended timetable if required due to your circumstances. Key dates as follows: The applicant must file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 24 May 2022; the respondent must file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 5 July 2022; the applicant must file and serve any reply to the respondent's documents by 19 July 2022. The actual hearing date has not been set yet.
9. The applicant replied with an email sent at 6:02pm on 21 June 2022 which read: Good evening, Did you get the attached document?? That is my evidence. I am waiting on some more statements aswell (sic). Nothing was attached to the applicant's second email, but it seems the applicant was referring to the letter addressed to 'Commissioner' sent earlier that day. No date was proposed for when the further statements would be provided.
10. On 22 June 2022 the registry forwarded a copy of applicant's letter addressed to 'Commissioner' that had been attached to his email of 21 June 2022, to the respondent's solicitors.
11. On 4 July 2022 at 9.40pm the applicant emailed the registry as follows: Good evening, Can I please request another hearing date in the future. Unfortunately the rain has hit my suburb in the Illawarra quite hard & we have severe flooding underneath the house and yard. I have 5 children under 7 so my wife & I are trying to pump water out as well as looking after our children. I'm sorry for the inconvenience. This weather has been quite the scare event (sic). Thank you Justin Poore
12. The respondent was not copied into the applicant's email, nor was the respondent copied into the registry's response of 5 July 2022 which read as follows: Good afternoon Mr Poore The Registrar has granted leave for your matter to be vacated for tomorrow and relisted in 3 weeks. In the interim you need to make application to the registrar to amend the timetable as it is now expired for you to filed (sic) your evidence. When you write to the Registrar in the Commission you must also include the respondent's authorised officer to keep them in the trail of emails. Your attendance is excused for tomorrow. I will formally advise you in writing of the new compliance date on Wednesday 27 July, 2022 at 9:30am before Registrar Robinson.
13. On 5 July 2022 a 'Notice of Orders Made' was sent to both parties, advising that the following orders were made in chambers: Registrar Robinson has granted leave for the applicant to vacate the matter listed for compliance check on Wednesday 6 July, 2022. In the interim, the Registrar has asked the applicant to email the Registrar for an amended timetable with the updated new date for filing of evidence. Now this matter is listed for compliance call over on Wednesday 27.07.2022 via teleconference at 9:30am.
14. The applicant failed to email the Registrar with an amended timetable as directed.
15. During the hearing of the motion I became concerned that the email sent by the applicant to the Registrar of 21 June 2022 and the emails between the applicant and the registry of 4 and 5 July 2022 were not copied to the respondent at the time they were sent and that the respondent had not been allowed an opportunity to be heard in respect of the vacated compliance check callovers. Accordingly, I arranged for copies to be provided to the respondent's solicitor (and to the applicant) during the hearing. (It transpired that the email of 21 June 2022 had been forwarded to the respondent's solicitor, as noted in paragraph 21 above.) After considering the emails Ms Shanahan made the following submission, which I accept: 1. the emails explain only why the applicant could not attend the compliance hearings - they do not otherwise explain the delays prior to, or post those dates or why he had failed to file material as directed; 2. the applicant's non-compliance was specifically noted in the Registrar's and the registry's reply emails to the applicant and he was advised to put forward an amended timetable, however he did not do so.
16. On 26 July 2022 the parties were sent an appointment for hearing which noted that the matter was listed for "Callover (Compliance Check)" the following day, 27 July 2022, at 9.15am. In the course of writing this judgment I discovered a further email on the Commission's file, sent by the applicant to the registry, which was again not copied to the respondent, despite the registry's advice that this should occur. The applicant referred to this email during the hearing (despite him not putting the email in evidence), however I could not locate it on the Commission's file at that time and, as it was not provided to the respondent, it was not annexed to either of Mr Shanahan's affidavit. The email was sent on 26 July 2022 at 7:49pm and read as follows: Again, Can I please have this heard after the test case in August. All police in my situation have had the same request. As I'm engaging all avenues of legal assistance I am available after August 30. Can I please have my matter heard after this date. Thank you Justin Poore. If this is an urgent matter please call me directly on [mobile phone number] as I'm travelling in regional NSW and [h]ave limited internet access.
17. The compliance check callover proceeded before the Registrar on 27 July 2022. On that day the respondent appeared by her solicitor. There was no appearance by the applicant and I do not know whether his email of 26 July 2022 was considered by the Registrar. In any event the Registrar made the following orders, which by design or otherwise, generally accorded with the applicant's request. 1. This matter is listed for 7 September at 9:15am. 2. I ordered the parties to provide an amended timetable for the filing of evidence by 4pm 11 August 2022.
18. On 3 August 2022 the respondent's solicitor wrote to the applicant requesting he provide a proposed revised timetable. The applicant's response, sent by email on the same day was as follows: Justine, Thank you for your email. I understand the commissioner wants to wrap these matters up. I am driving to the Sunshine Coast with my family (5 children) for a wedding and will be gone for 14 days. We are leaving on Sunday the 14th of August returning on Sunday 28th August. This will be the first family holiday since being married 11 years ago. Can I please have a date after 28 August. This will also give me that extra time to finalise paperwork. I'm working in my trade profession and as you could imagine it's very hard to navigate, work, family & the police process all at once. Again I thank you so much for your understanding and I hope all will be sorted in the best way possible for both parties. Thank you. Justin Poore.
19. The respondent's solicitor replied to the applicant by email dated 5 August 2022 proposing a timetable pursuant to which the applicant would file and serve his evidence and submissions by 8 September 2022. The applicant did not respond to this email.
20. On 19 August 2022 Ms Natasha Misko purported to file with the Commission via email a document styled 'Notice of Change of Solicitor' (Form 45) advising that she had been appointed to act as the agent for the applicant in the proceedings in the place of David Jones of Caroll & O'Dea, Lawyers. In an email to the Commission dated 20 August 2022 (a Saturday) which was not copied to the respondent's solicitors, and which attached a further copy of the 'Notice of Change of Solicitor' and a document which purported to give Ms Misko authority to act for the applicant, Ms Misko advised that the applicant consented to the timetable that had been proposed by the respondent's solicitor in their correspondence of 5 August 2022. I note in passing that Ms Misko also did not file a certificate as required by s 90A(2) of the Industrial Relations Act.
21. At 9:22am on 23 August 2022 the respondent's solicitors wrote to the Registrar, with a copy to the applicant, advising that they had received no response from the applicant to their email of 5 August 2022 proposing a new timetable and "[h]aving regard to the applicant's failure to advance his application with due dispatch, the Respondent will seek instructions to file a Notice of Motion seeking to dismiss the application." The respondent's solicitors proposed that the matter not be brought on again for directions and/or compliance check in the interim.
22. At 12:42pm on 23 August 2022 Ms Misko sent an email to the solicitor for the respondent advising that she had sent an email to the Commission "which was confirmed as received, with a form 45 & Authority to Act for Mr Poore" and in which she had indicated the applicant's consent to the timetable proposed by the respondent. The email also stated: I do not have the contact (sic) of the respondents (sic) solicitor in this matter however, so I have been unable to forward anything on.
23. This email suggests that the applicant had not adequately instructed Ms Misko.
24. On 5 September 2022 an attempt was made to file a document styled 'Notice of Change of Agent/Solicitor' which stated: Gareth Clinton Rogers, whose offices at 1/9 Dudley St, Annalerley, QLD 4103, has been appointed to act as the solicitor for the applicant in these proceedings in the place of Natasha Misko of PO Box 408, Narooma NSW 2546 The document was signed by the applicant, not by Mr Rogers. So far as I am aware Mr Rogers is not a solicitor and purported to act in these proceedings only as an agent for the applicant.
25. On 7 September 2022 the Registrar made the following orders in chambers: The Registry has received [a] Form 45 re Notice of Change of Agent/Solicitor for this matter. Please note that this form is incomplete and deemed not filed. Accordingly by 4pm on 9th September I order you to file [a] correct Form 45 with your signature and the inclusion of [an] email address and the addition of an alternative phone number.
26. The application was also listed for a compliance check before the Registrar on 7 September 2022. Ms Amin, solicitor, appeared on behalf of the respondent. It is unclear to me who appeared on behalf of the applicant. According to Ms Shanahan in her affidavit sworn on 28 September 2022, Ms Misko appeared on behalf of the applicant, despite the attempt by Mr Rogers to go on the record for the applicant. According to the Commission's file, the applicant appeared without any representation, which may reflect the fact that neither Ms Misko nor Mr Rogers had properly filed an appointment to act/notice of change of agent or filed a s 90A certificate and according one or both may not have been permitted to appear on behalf of the applicant. In any event, the following directions were made: 1. Applicant to file and serve his evidence and submissions by 12 September 2022; 2. Respondent file and serve her evidence and submissions by 6 October 2022; and 3. Applicant to file and serve his evidence and submissions in reply by 20 October 2022. 4. The matter to be set down for a two-day hearing on mutually available dates thereafter.
27. On 9 September 2022 Mr Rogers filed a document styled 'Notice of Change of Agent/Solicitor' which was identical to the document that he had attempted to file on 5 September 2022, save that it was now signed by him rather than the applicant.
28. On 12 September 2022 the Registrar caused to be issued an appointment for hearing pursuant to which the matter was listed for a compliance check call over on 26 October 2022 at 9.15am. Later that same day Mr Rogers emailed the Registrar, without copying or otherwise corresponding with the respondent's solicitor, as follows: We hereby wish to advise that we are unable to contact our client, Mr Justin Poore, to obtain a claim statement to accompany his submissions for the above matter. We thereby respectfully request a short extension of time to file his material.
29. The Deputy Registrar caused an email to be sent to Mr Rogers in response to his email in which he was requested to contact the respondent's solicitor to get consent to the extension sought. Thereafter, Mr Rogers emailed Ms Amin seeking an extension to Wednesday, 14 September 2022.
30. Ms Amin replied to Mr Rogers by an email dated 13 September 2022. In that email Ms Amin advised that the respondent did not consent to the extension sought given the applicant's "pattern of non-compliance with orders of the Commission" and that the respondent would seek to have the matter listed for directions before a member of the Commission. Ms Amin also queried the capacity in which Mr Rogers was acting and drew his attention to rule 7.1(6) of the UCPR which requires that a solicitor who is a person's solicitor on the record must hold restricted practising certificate; and rule 22.5.2 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) with respect to ex parte communications with the Commission.
31. On 14 September 2022 Mr Rogers responded to Ms Amin's email as follows: I am representing Justin in the capacity of a paid agent. If you do not consent to the extension of time as requested, can you please inform the Registrar of your position.
32. Thereafter Ms Amin forwarded her correspondence with Mr Rogers regarding the applicant's request for an extension, to the registry by email dated 14 September 2022.
33. On 15 September 2022 Mr Rogers on behalf of the applicant sought to file documents via an email to the registry, copied to the respondent's solicitors, which read as follows: Please find attached submissions in support of the above-mentioned Application. With respect to the Applicants (sic) written statement, I have confirmed with Justin via telephone that for the purpose of the Hearing he only intends to rely on the following documents and the matters contained therein: 1. The Respondent's Notice Pursuant to Section 181D(3)(a) of the Police Act 1990 dated 17 November 2021. This document was attached to the Application and was numbers A1-A5. 2. The Applicants (sic) Response to the Respondent's Notice pursuant to Section 181D(3)(a) of the Police Act 1990 dated 7 December 2021. This document was noted as being "to be filed". Attached to this email is a copy of this document. 3. The Respondent's Order under Section 181D(1) of the Police Act dated 11 March 2022. This document was attached to the Application and was numbered C1. If the Respondent (or the Commission) requires the above to be confirmed by signed statement, I can provide this on Justin's behalf within 24 hours if it is a matter of urgency as Justin is currently travelling interstate.
34. By an email sent from the registry on 15 September 2022 the parties were informed that the documents attached to Mr Rogers email of that day were not accepted for filing on the basis that in the absence of leave, the documents had to be filed either by post or in person.
35. On 26 September 2022 the registry sent a further email to Mr Rogers, copying in the respondent, noting that the registry had still not received any further correspondence/documents from the applicant. However, it appears that the following day, 27 September 2022, a hard copy of the documents which had been attached to Mr Rogers email of 15 September 2022 were received by the registry through the mail and were duly filed.
36. Specifically, what was filed was an unsigned document in the nature of submissions, headed 'Contract of Employment' (Applicant's Submissions) and an unsigned letter from the applicant dated 7 December 2020 addressed to the Commissioner of Police, Michael Fuller APM, with email copies to Chief Inspector Rod Pratt and Senior Sergeant Jacqui Cameron (Applicant's Response to the s 181D(3)(a) Notice).
37. I note in passing that the Applicant's Response to the s 181D(3)(a) Notice indicated that the applicant had a religious and moral objection to taking any of the vaccines then available, being those produced by Pfizer, AstraZeneca and Moderna, due to his understanding that those vaccines had been prepared with remnants obtained from human foetus tissue and that he was: "waiting on the Novavax vaccine for my vaccination which resolves the issues I currently have with being vaccinated as I understand that vaccine is a traditional protein based vaccine and does not contain the remnants of human tissue." The Applicant's Submissions on the other hand make no mention of the applicant's religious or moral objections. The applicant has not filed any material indicating that he has now been vaccinated with the Novavax vaccine. It is a matter of common knowledge that the Novavax vaccine has been available in Australia since early 2022.
38. The Applicant's Submissions contains references to numerous media and other reports, including reports from the Australian Bureau of Statistics, which have otherwise not been filed or served, contrary to the direction made on 12 April 2022 that the parties shall include in or with their written statements all matters and documents upon which they rely or they allege are relevant to the proceedings. The applicant did not file and has not filed any affidavit evidence or statements.
39. Meanwhile, on 26 September 2022, prior to the filing of the applicant's documents on 27 September 2022, the respondent's solicitors emailed Mr Rogers noting that they had not been served with any filed materials and that in the circumstances the respondent intended file a notice of motion on 28 September 2022 seeking that the application be dismissed for want of due despatch.
40. Mr Rogers did not reply to the respondent solicitor's email of 26 September 2022 and on 28 September 2022 the respondent filed the notice of motion which is now before me, together with the first affidavit of Ms Shanahan.
41. On 30 September 2022 Mr Rogers wrote to the respondent's solicitor advising that the applicant's material had been filed on 27 September 2022, being the same material that had been provided to the respondent's solicitor on 15 September 2022. While that is the case, so far as the respondent's solicitors were aware the documents sent to them and to the registry on 15 September 2022 had not been accepted for filing and the first notice they had that the documents had in fact been filed was when they received Mr Roger's email of 30 September 2022, some 18 days after the deadline for filing and service of the applicant's material. I also observe that it is customary, if not required by UCPR 10.1(1), to serve a copy bearing a stamp of the court or tribunal in which the document has been filed, to ensure there is no confusion as to whether the served copy document is the same as the original filed document.
42. The notice of motion was initially listed for directions on 26 October 2022 before Chief Commissioner Constant. The matter was allocated to me on 4 October 2022, on which day I made directions in chambers for the motion and the substantive matter to be listed for directions via telephone before me on 14 October 2022 and for the motion to be listed for hearing on 26 October 2022.
43. On 5 October 2022 a further copy of the Applicant's Submissions and the Applicant's Response to the s 181D(3)(a) Notice were received by the registry, along with a scientific report entitled 'Cumulative Analysis of Post-Authorization Adverse Event Reports of PF-07302048 (BNT162B2) Received Through 28-Feb-2021" (Scientific Report). It seems the Scientific Report was included in the documents attached to Mr Roger's email to the registry and to the respondent's solicitors of 15 September 2022, but it was not included in the hard copy documents filed on 27 September 2022.
44. A further copy of the filed version of the Applicant's Submissions and the Applicant's Response to the s 181D(3)(a) Notice, bearing the Commission's 'Filed' stamp, were sent by email by Mr Rogers to the respondent's solicitors on 11 October 2022.
45. At the directions hearing on 14 October 2022 Ms Amin appeared on behalf of the respondent and Mr Rogers appeared on behalf of the applicant by AVL. At that stage I was unaware of that Mr Rogers was not a solicitor, as represented in the Notice of Change of Solicitor filed by him, or that he had not filed a s 90A certificate as an industrial agent. I made the following directions: 1. The applicant is to file and serve any evidence, in the form of affidavits upon which he intends to rely in defence of the respondent's Notice of Motion by 20 October 2022. 2. The respondent may file and serve any evidence, in the form of affidavits, upon which she intends to rely in reply to the applicant's evidence by 24 October 2022. 3. The directions made on 7 September 2022 and the listing of the matter on 26 October 2022 for a compliance check be vacated. 4. The hearing of the respondent's Notice of Motion on 26 October 2022 shall be in person, however Mr Rogers may appear as the applicant's advocate by AVL. The applicant is required to appear in person.
46. The applicant failed to file or serve any evidence in defence of the respondent's Notice of Motion. As noted above at paragraph 7 above, the applicant attempted to file 'Submissions in response to Notice of Motion' and while they were rejected by the registry, I have had regard to them.

The State of the Matter

1. The above, regrettably long, procedural history indicates that: 1. the applicant has indicated that he has filed all material on which he intends to rely; 2. save for two documents attached to the originating application, the documents upon which the applicant proposes to rely, namely the Applicant's Submissions and the Applicant's Response to the s181D(3)(a) Notice, were filed on 27 September 2022 and while copies of them were sent to the respondent's solicitor on 15 September 2022, the respondent's solicitor was not aware they were filed until 30 September 2022 and only received a stamped version of the documents on 11 October 2022; 3. to the extent that the applicant intends to rely upon the Scientific Report, that document was not received by the registry until 5 October 2022; 4. the material on which the applicant intends to rely was therefore filed and served, at best 15 days late. (This assumes that the Scientific Report is not to be relied upon, that the first deadline of 24 May 2022 is disregard, and that filing and service had been achieved by 27 September 2022 noting that un-stamped copies were provided to the respondent on 15 September 2022, although I think the better view is that service was only achieved on 30 September 2022 or possibly 11 October 2022 when stamped copies of the documents were served.); 5. taking a view of the matter most favourable to the applicant, the applicant, by his agent's email to the Commission and to the respondent's solicitor of 15 September 2022, was unarguably three days late in providing his material; 6. as at 7 September 2022, when the second deadline of 12 September 2022 was set, some 112 days had passed since the first deadline for the filing and service of material, namely 24 May 2022, had expired; 7. the applicant has provided no evidence to explain why he remained in default of the first deadline for 112 days before taking steps to have the timetable amended, or why he was 15 days late (or unarguably three days late) in meeting the second deadline; and 8. the applicant is subject to an extant order pursuant to which, without leave of the Commission, written statements and other documentation filed and served later than the time specified by the Commission may not be relied upon by the party.
2. No application has been made by the applicant for leave to rely on the late-filed material.
3. The respondent has not filed her material in answer to the applicant's material and the matter is not yet listed for hearing.

Communications with the Commission

1. Before dealing with the substantive matter before me, I need to address the unacceptable practice of communicating with this Commission without first seeking the consent of the other party or otherwise including the other party in the communication. As noted above, the applicant and his agents communicated with the Commission on numerous occasions without first seeking the consent of the respondents' solicitors or otherwise including them in the correspondence. This should not occur.
2. While the applicant himself and his industrial agent, are not subject to the professional conduct rules applicable to solicitors (and barristers), such rules nevertheless ought to be observed by litigants and their agents, as they reflect a process that ensures that all parties are dealt with fairly. Rules 22.5 - 22.7 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) provide as follows: 22.5 A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connection with current proceedings unless: 22.5.1 the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court, or 22.5.2 the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor. 22.6 A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication referred to in Rule 22.5. 22.7 A solicitor must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under Rule 22.5.2 other than the matters specifically notified by the solicitor to the opponent when seeking the opponent's consent.
3. Unfortunately, it seems that even legal practitioner's need to be reminded of these obligations from time to time: see Hill as Trustee for the Ashmore Superannuation Benefit Fund v Halo Architectural Design Services Pty Ltd [2013] NSWSC 878.
4. While the Commission generally operates with less formality than courts, and it may be appropriate from time to time for a party to communicate with the Commission in respect of purely logistical or other non-contentious matters, the Commission nevertheless must ensure that proceedings before it are conducted fairly. Requests for adjournments or for any kind of indulgence from the Commission, should not be made ex parte.

Relevant Principles

1. Prior to the introduction of the Civil Procedure Act 2005 (NSW), the power to dismiss proceedings for want of prosecution would only be exercised where there had been intentional and contumelious default or where there had been inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible or of serious prejudice to the defendant. However, as Ward JA (as her Honour the President then was), explained in Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [102] (Emmett and Gleeson JJA agreeing) the introduction of ss 56-60 of the Civil Procedure Act modified this statement of principle.
2. Now, as Commissioner Newall noted in Kabir v Department of Family & Community Services [2016] NSWIRComm 1009 at [13] (with emphasis added): "...the provisions of the Civil Procedure Act 2005, particularly s 56 of that Act, bear very much on the exercise of the powers and discretion granted to a court under rule 12.7. This Commission, in particular, is a body of limited resources and parties which approach the Commission seeking relief of any kind within the Commission's powers are obliged to conduct themselves with due despatch. It is not open to parties to luxuriate in the conduct of proceedings in a time and manner which suits them, but does not conform to the Commission's statutory obligations to deal with matters quickly, or indeed conform to directions made by the Commission. If matters are not promptly to be prosecuted, there must be cogent and compelling reasons for that failure presented to the Commission if the tools provided by the UCPR, which must be read in the light of the provisions of the Civil Procedure Act itself, are not to be used to ensure that parties who do conduct themselves with due despatch, are not penalised by parties who do not."
3. Relevantly, at [15], Commissioner Newall considered that the fact that the applicant in that case was unrepresented, did not excuse him from the operation of the Civil Procedure Act.
4. Commissioner Sloan also had regard to s 56 of the Civil Procedure Act when considering an application for dismissal pursuant to rule 12.7 of the Uniform Civil Procedure Rules and s 61(3) of the Civil Procedure Act 2005 in Musicka v The Health Secretary in respect of NSW Ambulance [2022] NSWIRComm 1055 where he stated, at [12]: In considering the application, I have particular regard to the overriding purpose of the Civil Procedure Act set out in s 56. I will not reproduce the entirety of that provision but note simply that s 56(1) provides that the overriding purpose of the Act and of rules of court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. It is relevant to observe that one of the objects of the Industrial Relations Act, as set out in s 3(g), is to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality.
5. As Ward JA explained in Dank at [103]: The authorities make clear that what is involved in the exercise of the power under rule 12.7 is a balancing exercise, in the course of which a variety of factors may be considered (see, for example, Hoser v Hartcher [1999] NSWSC 527).
6. Simpson J (as her Honour then was), set out in Hoser v Hartcher [1999] NSWSC 527 at [19] - [30], a non-exhaustive list of the principles relevant to the exercise of the discretion to strike out for want of prosecution. The decision pre-dated the introduction of the Civil Procedure Act so some of the factors identified by her Honour are either no longer relevant or are of less significance. Factors which remain relevant include: 1. any explanation offered by the plaintiff for the delay in proceeding must be considered - the plaintiff's personal responsibility for the delay is an important factor, as is any explanation provided for the delay; 2. 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; 3. the onus lies on the defendant to establish any prejudice upon which reliance is placed; 4. prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; and 5. the plaintiff's prospects of success. 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 significant prejudice to the defendant) it is less likely that justice will be done by striking the action out.
7. Walton J, President of the Industrial Court of New South Wales (as his Honour then was), confirmed in Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1; 92 NSWLR 473 at [108] that the exercise of the power under r 12.7 is a "balancing exercise in the course of which a variety of factors may be considered including those in Hoser v Hartcher" and that the "ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed". His Honour also confirmed, at [110], that the "discretion must be exercised having regard to the requirements of ss 56 to 60 of the [Civil Procedure] Act".
8. It is clear that in exercising the power under r 12.7 of the UCPR or the power under s 61(3)(a) of Civil Procedure Act, the Commission must seek to act in accordance with the dictates of justice: s 58(1) of the Civil Procedure Act. Section 58(2) provides as follows: For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3); (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings; (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction (vii) such other matters as the court considers relevant in the circumstances of the case.
9. Commissioner Stanton in Bouskila v Corrective Services NSW [2019] NSWIRComm 1061 at [164] stated that "considerations raised under ss 56-60 of the Civil Procedure Act are critical to the determination of an application for the dismissal of proceedings for want of due despatch and non compliance with directions." After setting out the objectives of case management provided for in s 57, Commissioner Stanton said, at [162] - [163]: The legislative intention of s 57 is both clear and unequivocal and it specifically directs the litigating parties to the objectives of effective case management which requires all proceedings to be managed having regard to their efficient disposal and the efficient use of available judicial and administrative resources. Critically, s 57(1)(d) of the Civil Procedure Act suggests the objects of case management extend to the needs and interests all parties of the relevant court and not simply those parties conducting the proceedings in question. Section 59 requires that any delay to be eliminated so far as possible. Section 60 also requires a court to consider proportionality of costs.
10. At [186] Commissioner Stanton noted that he had given consideration to the decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, "where the significance of delay, not only for particular proceedings, but for the Court system generally is recognised."
11. Pursuant to s 58(1)(a), the Commission will also have regard to the dictates of justice when considering whether to grant an application for leave to rely on written statements and other documentation filed and served later than the time specified by the Commission. Thus, the factors which the Commission will consider when determining whether to dismiss a proceeding for want of due despatch will be similar, if not the very same, as the factors which the Commission will consider when determining whether to grant leave to a party to be permitted to rely on late- filed and served material.

The Parties Submissions

1. The respondent submitted that: 1. the applicant has failed to prosecute his proceedings with due despatch from 24 May 2022, by: 1. failing to file evidence and submissions by 24 May 2022; 2. vacating the compliance checks listed on 22 June 2022 and on 6 July 2022; 3. failing to email the Registrar an amended timetable as per her request; 4. failing to appear at the compliance checklist on 27 July 2022; 5. failing to file evidence and submissions by 12 September 2022; 6. failing to respond to the respondent's solicitors' email of 26 September 2022 putting the applicant on notice that they proposed to file a notice of motion to have the proceedings dismissed for want of due despatch; 7. failing to file any evidence upon which he intends to rely defence of the notice of motion by 20 October 2022; 1. contrary to Kabir, the applicant has failed to provide cogent and compelling reasons for failing to promptly prosecute the proceedings; 2. the applicant has not sought leave to rely upon material filed after the date for compliance, which creates uncertainty as to the case to which the respondent must respond; 3. consistent with the respondent's obligations as a model litigant, on each occasion that the applicant failed to comply with directions he was contacted and generally assisted in the timely prosecution of his case by the respondent's solicitors, to no avail; 4. the applicant has been on notice since at least 15 September 2022 that documents cannot be filed electronically without leave, yet the applicant continued to attempt to file documents, including the 'Submission in response to Notice of Motion' by email; 5. the evidence filed by the applicant is insufficient for the applicant to discharge his onus to establish that his dismissal was unfair, in particular, for him to establish that the directions given by the respondent were unlawful; 6. the delay will make it more difficult for the respondent to address the issue of the lawfulness of the directions; 7. the respondent has expended time and money in responding to the applicant's claim since it was commenced, which has required numerous actions by the respondent and appearances before the Commission, including time and money in preparing and filing the present motion and attending the various Commission listings; 8. the delay in the proceeding is likely to have a direct impact on remedy, including a significant increase in the quantum of any back pay if the applicant is successful in his claim; 9. the applicant has not provided any evidence as to the specific prejudice he will suffer if the proceedings are dismissed; 10. while there may be prejudice to the applicant arising from him being unable to prosecute the proceeding, the level of that prejudice is diminished by his lack of prompt engagement; 11. the Commission should view the matter in its 'totality' and conclude that the balance of the prejudice to either party weighs in favour of dismissing the proceedings.
2. The applicant's 'Submissions in response to Notice of Motion' addressed only one matter: that copies of the documents that had been filed on 27 September 2022 had been provided to the respondent's solicitors on 15 September 2022. The applicant therefore submitted that: The "default of orders" from 15 September 2022 only pertains to the filing of the documents with the IRC Office which simply stamps them with the date they were FILED (which of course does not alter the form of the document).
3. The submissions entirely ignore the fact that by 'only' filing the documents on 27 September 2022, the applicant was in default of the Commission's order for over two weeks. Further, no submissions were made to explain why over four months have been allowed to elapse between the first deadline for the filing and service of materials and the re-timetabling of the matter on 7 September 2022. No written submissions were made (and no evidence was filed) as to the prejudice that the applicant would suffer if the proceedings were dismissed or why the balance of the prejudice weighed in favour of the proceedings not being dismissed.
4. The applicant submitted orally: 1. all the evidence relating to his matter was served on the respondent on 15 September 2022 and filed with the Commission on 27 September 2022 (I note that the Scientific Report was not filed on 27 September 2022); 2. the hearing date has not been set and "it's obvious all the prejudice is on me" and "I think I deserve to have my matter to be heard"; 3. moving forward there will be no more delays; 4. that he had "financially gone without to join the police" including spending a year at the police academy and doing probation, and that he had "done everything right and they were very quick to dismiss me and I just feel like I've been wronged and I feel like it needs to be heard"; 5. that he was "a father of five children, so life's very busy", he accepted that 'mistakes' had been made in the conduct of his case, but he 'was going on what I've been told from my lawyer'; 6. he did and does care about the matter because he wants his job back: "it's all I've ever wanted to do"; and 7. when the Police Association refused to fund him, he was "unrepresented for a while trying to find representation and obviously in the climate it's very hard to find anyone that has your point of view ..."
5. Although the applicant had failed to file any evidence to explain the reason for his default pursuant to my direction to do so by 20 October 2022, I provided the applicant with an opportunity to explain, from the bar table, why he had failed to properly communicate with the Commission and with the respondent's solicitor during the period from May 2022, when Caroll & O'Dea ceased to act for him and September 2022, when Ms Misko purported to act for him. His response was as follows: All I can say is obviously I've got five children, I'm running my own plumbing business, I've been stood down and I've had to start again and, yeah, it's-yes, I'm time poor, but every week I'm sort of hoping everything's changing, am I going to get back and then obviously engaged a new lawyer and things haven't been done on time and …but being a realist you're always going to have to front up and say your piece.

Consideration

1. Based on the evidence before me I find that: 1. the applicant failed to file evidence and submissions by 24 May 2022 as directed; 2. while the applicant had valid reasons to have the compliance checks listed on 22 June 2002 and 6 July 2022 vacated, he failed after each vacation to take steps have a new timetable ordered or to otherwise advise the Commission and the respondent's solicitors when he would file and serve his material; 3. the applicant failed to appear at the compliance check on 27 July 2022 without excuse and failed to seek, at that time, a suitable amended timetable which included a date by which he would file and serve his evidence and submissions; 4. the applicant failed to file evidence and submissions by 12 September 2022, as directed; 5. the applicant failed to respond to the respondent's solicitors' email of 26 September 2022 putting the applicant on notice that they proposed to file a notice of motion to have the proceedings dismissed for want of due despatch, despite having posted documents to the Commission for filing, leaving the respondent's solicitors with the impression that no step had been taken to properly file material with the Commission; 6. the applicant has failed to provide cogent and compelling reasons for his failure to comply with the Commission's directions.
2. I am satisfied on the evidence that the applicant has failed to prosecute the proceedings with due despatch.
3. The lack of cogent and compelling reasons for failing to comply with the Commission's directions is of particular importance in this matter, given the order of the Commission that written statements and other documentation filed and served later than the time specified by the Commission may not be relied upon by the party, without leave. The dictates of justice demand that when considering whether to grant leave to permit a party to rely on material filed and served after the deadline for filing and service, the Commission will have regard to the party's degree of expedition in approaching the proceedings (see s 58(2)(b)(ii)) and will consider whether: 1. any lack of expedition has arisen from circumstances beyond the control of the party (s 58(2)(b)(iii)); and 2. if the party has made, or could have made, use of an opportunity given to it under, inter alia, any direction of a procedural nature given in the proceedings (s 58(2)(b)(v).
4. On 14 October 2022 I directed the applicant to file and serve any evidence, in the form of affidavits upon which he intends to rely in defence of the respondent's Notice of Motion by 20 October 2022. Not only was this an opportunity to put on 'cogent and compelling reasons' for his failure to comply with the Commission's directions for the purposes of defending the motion, but it was also an opportunity to put on evidence that would support an application for leave to rely on the filed material. The applicant failed to avail himself of this opportunity and despite being clearly on notice that his filed evidence and submissions may not be able to be relied upon, has still not sought leave to be permitted to rely on the material.
5. In terms of prejudice to the parties I accept that the applicant will suffer prejudice if the proceedings are dismissed as he will permanently lose the ability to obtain the relief he seeks. By virtue of the operation of s 181G(1)(b)(ii) of the Police Act the Commission may not accept an application for review that is made out of time. Thus, while a proceeding that is dismissed pursuant to r 12.7 or s 61(3)(a), (subject to the terms on which the dismissal is made), would not, by virtue of s 91(1) of the Civil Procedure Act, ordinarily prevent an applicant from bringing fresh proceedings on the same cause of action, it will in this case.
6. However, there is no evidence before me as to what the loss of the ability to obtain the relief sought will mean to the applicant, financially or otherwise. While it is possible that his personal circumstances are significantly impaired by his dismissal from the Police Force, it is equally possible that his circumstances may have improved. I do accept however, that that the applicant wishes to return to the Police Force and that joining the Force required sacrifice on his part.
7. In terms of the prejudice suffered or to be suffered to the respondent, I accept that the respondent: 1. has faced and continues to face uncertainty as to the case it has to met arising from the applicant's late filing and service of material; 2. the delay may make it more difficult for the respondent to address the issue of the lawfulness of the directions, although I have not given this concern any great weight in the absence of any evidence to this effect; 3. the respondent has expended unnecessary time and money arising from the applicant's defaults; and 4. the applicant's delays may result in a significant increase in the quantum of any back pay, and the applicant's failure to properly participate in the processes of the Commission (as required by s 56(3) of the Civil Procedure Act), by seeking orders for the appropriate case management of his matter in circumstances where he may have considered it was an appropriate course to delay his case until after the resolution of another case before the Commission, prevented the respondent from taking steps in the proceeding to protect its position in respect of back pay.
8. The prejudice to be suffered by either side in this case as outlined above seems to me to be finely balanced. However, two matters tip the scale in favour of the proceeding being dismissed given my obligation to apply the provisions of Part 6 of the Civil Procedure Act: the extent of the applicant's delay and the failure of the applicant to explain it.
9. The procedural history of this matter indicates that the applicant has conducted the proceedings in a time and in a manner which suits him, but which does not to conform to the Commission's statutory obligations to deal with matters quickly (particularly applications pursuant to s 181E of the Police Act) or to the directions made by Commission. In the context of unfair dismissal proceedings in this Commission, whether pursuant to s 181E of the Police Act or s 84 of the Industrial Relations Act, a period of five months for the filing and service of evidentiary material and submissions by the applicant is quite extraordinary in circumstances where the 'usual directions' under Practice Note 17A, "Applications Pursuant to Section 84 (Unfair Dismissals) Industrial Relations Act 1996", stipulate that such material is to be filed within 21 days of the date of the order, which is usually made immediately following an unsuccessful conciliation. As Commissioner Newall remarked in Kabir, the Commission is a body of limited resources and parties which approach the Commission seeking relief of any kind within the Commission's powers are obliged to conduct themselves with due despatch. The failure to do so, affects not only the other party, but the Commission itself and all the other litigants who seek relief from the Commission.
10. Compounding this extraordinary delay is the absence of evidence to explain the delay, which might allow me to excuse the delay. The limited information before me, which was unable to be tested by the respondent due to the form in which it is provided, suggests that the applicant may have struggled to conduct the proceedings due to work and family commitment, that he found it difficult to find someone to represent him and that he otherwise relied on those that were representing him. However, there is insufficient evidence before me to make findings that this was the case. Even if this were the case, I would need to be satisfied that the applicant had nevertheless made his best efforts to comply with the Commission's directions and to ready his matter for hearing. There is nothing before me to indicate this was the case.
11. Prosecuting proceedings in any court or tribunal is a serious business. It involves the use of significant public resources and seeks the invocation of powers by the court or tribunal which may have a significant impact other people and entities. Anyone commencing proceedings must prioritise the prosecution of those proceedings, to the best their resources and circumstances will allow.
12. For completeness, I note that it was submitted by the respondent that the evidence filed by the applicant is insufficient for the applicant to discharge his onus to establish that his dismissal was unfair, in particular, for him to establish that the directions were unlawful. This submission addresses one of the factors listed by Simpson J (as her Honour then was) in Hoser v Hartcher, that may be relevant when considering whether to exercise the discretion to dismiss the proceedings for want of due despatch, namely the plaintiff's prospects of success.
13. I have determined that the proceedings should be dismissed without needing to include in the equation a finding that the applicant's prospects of success are minimal, consequently I have made no such finding. In circumstances where the applicant did not submit that his case was strong, such that justice would not be done if his claim was dismissed, there was no need for me to make any finding in respect of the general prospects of the action.
14. That said, in circumstances where: 1. the applicant has filed no statements or affidavits; 2. there is no dispute that the applicant failed to comply with the respondent's directions; 3. as noted at paragraph 51 above, the Applicant's Submissions rely, heavily, upon various media and other reports, including reports from the Australian Bureau of Statistics, which have otherwise not been filed or served, (despite the Commission's direction that all material to be relied on be filed and served); and 4. pursuant to s 181F(2) the applicant bears "at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust", there may be force in the respondent's submission. At the least, the reference in the Applicant's Submissions to media and other reports that have not be filed and served, raises the prospect that if the proceedings were to continue, the applicant may seek leave at a later time to be allowed to tender in evidence such material, in which event the respondent would suffer further prejudice.
15. I order that the proceedings be dismissed, pursuant to Rule 12.7(1) of the Uniform Civil Procedure Rules. While it is not strictly necessary to do so, I observe that grounds also exist for the matter to be dismissed pursuant to s 61(3) of the Civil Procedure Act. Janet McDonald Commissioner

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. Decision last updated: 09 November 2022