Before the Commission is a Notice of Motion filed by the respondent, the Secretary, NSW Department of Education, on 17 February 2020 ("respondent's motion"). The respondent's motion was filed in relation to appeal proceedings initiated by the appellant, Zlata Rous, on 20 April 2018 which sought to overturn a decision of former Chief Commissioner Kite SC on 29 March 2018 in Rous v Department of Education and Communities [2018] NSWIRComm 1017.
The respondent's motion, which was supported by an affidavit sworn by Christa Lenard, solicitor for the respondent, on 17 February 2020, seeks the following orders:
a. an order setting aside the Application for Leave to Appeal and Appeal filed by Zlata Rous, the Applicant, on 20 April 2018 and associated applications in IRC proceedings No. 127784 of 2018 and No. 67829 of 2019, (referred to as the Proceedings); and
b. any further or other orders that the Commission sees fit.
[2]
Background
Some of the background to this matter is conveniently set out in the decision of the former Chief Commissioner of 29 March 2018 in the following terms:
1 Before the Commission are two motions. The first, filed by the respondent on 14 September 2017, seeks orders dismissing the applications filed by the applicant. The second, filed by the applicant on 18 September 2017 seeking declarations and an order staying both sets of proceedings. The two sets of proceedings are;
(1) Matter 2017/57827 - being an application pursuant to s 242 of the Workers Compensation Act 1987 (NSW) for reinstatement of an injured worker ("the Injured Worker Application"); and
(2) Matter 2017/112639 - being an application pursuant to s 213 of the Industrial Relations Act 1996 (NSW) ("the IR Act") for relief from victimisation ("the Victimisation Application").
Background
2 The matters have a rather convoluted history. They were preceded by an Application (2015/00374572) made pursuant to s 84 of the IR Act for relief from unfair dismissal ("the Unfair Dismissal Claim"). It is convenient to note, briefly, the course of the last matter and its intersection with the two applications to which the motions relate. That is best done by way of the chronology which follows.
31 March 2015
Unfair Dismissal Claim filed
14 May 2015
Unsuccessful conciliation of that claim before Tabbaa C. Directions made to prepare the matter for hearing on 17-19 August 2015.
27 May 2015
Respondent applied, with consent of the applicant to vacate the hearing dates.
24 June 2015
Applicant's then solicitors cease to act. Adjournment sought for new solicitor to consider/advise re alternative proceedings in Federal Court and/or HREOC. Hearing dates vacated by consent.
8 July 2015
New directions made.
10 July 2015
Notice of change of solicitors filed on behalf of applicant.
4 September 2015
Revised directions made by consent on application of applicant.
21 October 2015
Further directions ("guillotine orders") made.
December 2016 (sic 2015) - April 2016
Various listings before the Industrial Registrar re directions and production of documents.
11 May 2016
Matter listed for hearing before Newall C on 15-17 August 2016.
26 July 2016
Hearing dates vacated by Newall C on the application of the applicant. Ms Rous advised she had withdrawn instructions from her lawyers and was not well enough to conduct the case herself. The orders made included an order that "proceedings":
"will only be listed for further final hearing upon the Applicant filing in the Commission and serving on the Respondent an affidavit from a medical practitioner advising the Commission in terms that the Applicant is and will for the foreseeable future remain:
a. fit to attend and participate in the hearing of the proceedings, including fit to be cross examined; and
b. if the applicant has not by that date engaged legal representation, fit to conduct the hearing of the proceedings without legal representation".
January and February 2017
Listed for call-over. Adjourned - applicant not medically fit.
23 February 2017
Applicant files the Injured Worker Application.
16 March 2017
Directions hearing before Stanton C. - respondent foreshadows motion to dismiss the Injured worker Application. Adjourned to 24 April for further directions.
13 April 2017
Applicant files the Victimisation Application.
24 April 2017
Directions before Stanton C. Respondent foreshadows arguments re s.90 of the IR Act and out of time issues concerning the victimisation application. Commissioner recommends the applicant seek legal advice about these issues. Adjourned to18 May 2017
12 May 2017
Applicant files motions which may be broadly described as seeking expedition
18 May 2017
Directions before me. Applicant had not obtained legal advice but maintained that the Unfair Dismissal claim was no longer relevant, was not being pursued and she did not wish to pursue it. Following a lengthy directions hearing I made the directions which are set out below. The respondent did not oppose expedition.
3 It was a constant theme of the applicant's submissions that she was not a lawyer and could not afford legal assistance. She alleged, and continues to allege, her previous legal advisors, of which there appeared to be several, had damaged her case and she had lodged complaints against them which have not been resolved. There was no indication of when they might be resolved.
Ultimately, the former Chief Commissioner granted the relief being sought by the respondent and dismissed the appellant's Victimisation Application and Injured Worker Application, stating as follows:
29 In the Victimisation Application there is no suggestion on the material advanced by the applicant in her affidavits or in the application itself to suggest there has been action by the respondent for any of the reasons proscribed by s 210(1) of the IR Act. Although the applicant alleges in her Victimisation Application that factual circumstances exist which meet the description of proscribed reasons in s 210(1)(b), (e), (f) and (g) there is no alleged connection between those alleged facts and the alleged victimisation. For most of the alleged circumstances the relevant fact has arisen after the alleged victimisation and therefore the prospect of a connection is at best remote.
30 In the Injured Worker Application it is evident on the admissions of the applicant that she has not fulfilled an essential prerequisite to her claim. More importantly it is also evident, from the entire history of her claims, that her employment was not terminated because she was not fit (medically) for employment, but for reasons of alleged misconduct.
31 The balance therefore weighs in favour of the respondent.
32 In addition, there is no sign given by the applicant that she will be, in the foreseeable future, in a position to advance her claims. She remains determined not to prosecute them without legal assistance and there is no indication that legal assistance will be forthcoming. Indeed the contrary seems to be the case. Just as for the applicant in Kabir, I do not regard the absence of representation as providing an immunity from a party's obligations under the CP Act or the UCPR.
33 I conclude, therefore, that I should exercise the powers granted by s 61(3) of the CP Act, and make orders sought by the respondent in its motion with some slight amendment to conform to the language of the CP Act.
On 20 April 2018, the appellant filed in the Office of the Industrial Registrar an Application for Leave to Appeal and Appeal against the decision of the former Chief Commissioner dismissing both her Victimisation Application and her Injured Worker Application ("Appeal"). The Appeal was allocated file number 127784 of 2018.
On 24 April 2018, the appellant filed with the Industrial Registrar a document styled "Application for Leave" for the NSW Civil and Administrative Tribunal to continue with proceedings instituted by the appellant in that jurisdiction in 2017.
Also, on 24 April 2018, the appellant filed a document styled "Application to Waive Strict Compliance with" the requirements of the rules prescribing the procedure to be adopted or followed with respect to steps to be taken in the Appeal. That application was supported by an affidavit sworn by the appellant and filed at the same time. Annexed to that affidavit was a medical certificate dated 22 March 2018 issued by Dr Elizabeth Rickman which stated:
Re: Ms Zlata Rous
(postal address)
who has been experiencing stress related symptoms recently and has been suffering from feelings of restlessness and anxiety and insomnia. She tells me that on 13/3/18 she felt unwell with these symptoms and unable to attend court due to her level of anxiety.
Also annexed to the affidavit was a further medical certificate dated 27 March 2018 issued by Dr Rickman which stated:
Ms Zlata Rous has a medical condition and will require an extension of 4 weeks on documents to be filed to the Tribunal. Please grant an extension if possible.
On 3 May 2018, the appellant filed a document styled "Application For Stay of Proceedings" seeking a "Stay of Proceedings on whole decision of Commissioner Kite made on 29 March 2018 regarding applications 2017/000578827 and 2017/00112639 to be dismissed".
On 12 May 2018, the appellant filed a Notice of Motion ("appellant's first motion") which stated:
This is an application for proceedings to be dealt with urgently under regulation 3.3 of the Industrial Relations Act 1996.
The appellant's first motion was supported by an affidavit sworn by the appellant and filed at the same time. That affidavit had annexed to it a medical certificate dated 8 May 2018 issued by Dr Rickman which stated:
Re; Ms Zlata Rous
(postal address)
who is showing significant signs of emotional stress and reports several factors which would be aggravating her condition.
The appellant filed two further affidavits on 18 May 2018. One affidavit was styled as follows:
MATTER 2017/112639
the
Injured Worker
Application
The second affidavit filed by the appellant on 18 May 2018 was styled as follows:
Matter 2017/112639
Victimisation Claim
Both affidavits contained a number of criticisms of the decision of the former Chief Commissioner which is the subject of the Appeal.
On 23 May 2018, the appellant forwarded an email to the Industrial Registrar concerning an upcoming surgical procedure which she was to undergo. Attached to that email was a copy of the medical certificate referred to at [11] above together with an undated document prepared by Professor Gabrielle R Casper headed "INFORMATION FOR THEATRE" which related to the appellant's admission to the Mater Hospital which was to occur on 25 May 2018.
On 29 May 2018, the Industrial Registrar issued Notice of Orders Made setting out directions made by Commissioner Stanton in the Appeal on 25 May 2018, should the appellant not be able to attend the directions hearing listed for 5 June 2018. The Notice of Orders Made contained the timetable for the filing and serving of submissions in the Appeal.
The appellant forwarded to the Commission a medical certificate dated 31 May 2018 issued by Professor Casper which certified that the appellant was unable to work from 25 May to 22 June 2018.
On 4 June 2018, a second Notice of Orders Made was issued by the Industrial Registrar vacating the directions hearing set down for 5 June 2018 and confirming the timetable for the filing and serving of submissions in the Appeal.
The timetable as outlined in the second Notice of Orders Made was as follows:
1. The appellant to file and serve submissions on leave to appeal by the close of business on 9 July 2018;
2. The respondent to file and serve submissions on leave to appeal by the close of business on 30 July 2018; and
3. The appellant to file and serve her reply to the respondent's submissions by the close of business on 6 August 2018.
On 6 July 2018, the appellant filed another Notice of Motion ("appellant's second motion") seeking to have the directions made on 25 May and 4 June 2018 set aside. The appellant's second motion was supported by an affidavit sworn by the appellant and filed at the same time. The supporting affidavit had annexed to it a number of medical certificates, including the medical certificate referred to at [17] above and a further medical certificate dated 26 June 2018 issued by Dr Rickman which stated that the appellant "has a medical condition and will be unfit for work from 26/06/2018 to 10/07/2018 inclusive". Also annexed to the affidavit was the document issued by Professor Casper referred to at [15] above.
On 17 July 2018, the parties were notified that the Appeal was listed for directions on 15 August 2018 before Commissioner Stanton.
On 30 July 2018, the respondent filed and served submissions on leave to appeal in accordance with the second Notice of Orders Made.
On 14 August 2018, the day before the scheduled directions hearing, the appellant filed another Notice of Motion ("appellant's third motion") and supporting affidavit seeking certain directions, including:
1. adjourning the directions hearing on 15 August 2018 due to medical reasons and late notice of the hearing;
2. having two separate file numbers allocated to the Appeal;
3. directions for the appellant's second motion to be dealt with; and
4. for the Commission to hear the application regarding waiver of compliance with procedural requirements filed on 24 April 2018.
The appellant's affidavit had annexed to it a medical certificate dated 14 August 2018 issued by Dr Rickman which stated that the appellant "has a medical condition and will be unfit for work from 10/08/2018 to 18/08/2018 inclusive".
On 15 August 2018, the Appeal was listed for directions before Commissioner Murphy on delegation from the Full Bench comprising Chief Commissioner Constant, Commissioner Murphy and Commissioner Webster. Commissioner Murphy ordered that:
1. the Appeal and all related applications be stood over generally;
2. the parties have liberty to apply on four weeks' notice to have the matters relisted before Commissioner Murphy for directions; and
3. the purpose of that directions hearing will be to establish a timetable for the orderly disposition of the matters before the Full Bench of the Commission.
The appellant forwarded to the Commission a medical certificate issued by Dr Rickman dated 18 September 2018 which certified that the appellant "has a medical condition and will be unfit for work from 18/09/2018 to 16/10/2018 inclusive".
The appellant forwarded to the Commission a further medical certificate issued by Dr Rickman dated 16 October 2018 which certified that the appellant "has a medical condition and will be unfit for work from 16/10/2018 to 24/11/2018 inclusive due to increasing anxiety. She requires an extension on work due of 1 month".
The appellant forwarded to the Commission a further medical certificate issued by Dr Rickman dated 30 October 2018 which certified that the appellant "has a medical condition and will be unfit for work from 30/10/2018 to 31/12/2018 inclusive, and feel sumable (sic unable) to attend court in this time".
On 28 November 2018, solicitors for the respondent wrote to the Industrial Registrar. That correspondence contained the following:
It has been three months since the directions of Commissioner Murphy and in accordance with the overriding purpose of the Civil Procedure Act 2005 (NSW), the Respondent seeks that this matter be relisted for directions in order to facilitate the just, quick and cheap resolution of real issues in the Proceedings
On 18 December 2018, the Appeal was again listed before Commissioner Murphy. The appellant stated that she was unable to pursue the Appeal at that stage. In answer to a question from the Commissioner as to whether she was in a position for a timetable to be set to deal with the Appeal or was she still unwell, the appellant stated:
Yeah, I'm not really fit medically to take a timetable now and -
When asked when she believed that she would be in a position to come back and agree to a timetable being set, the appellant replied:
I think that would be more likely February. I have two court matters in January that have to be - one is actually not - two in January, yes, and there is another one, a District Court matter in April supposedly. So they're quite serious ones because they involve the police.
Commissioner Murphy set the matter down for a directions hearing on 28 February 2019. The Commissioner also requested that the appellant continue to file medical certificates if she remains unwell and to provide copies to the respondent.
On 10 January 2019, the appellant forwarded to the Commission a medical certificate dated 8 January 2019 issued by Dr Rickman that stated:
Ms Zlata Rous has a medical condition and will be unfit for work from 08/01/2019 to 01/03/2019 inclusive due to anxiety disorder. Re her obligations to courtroom proceedings, she is fit to deal with 1 court case matter at a time. She is currently referred for treatment for her anxiety disorder.
On 27 February 2019, the day before the scheduled directions hearing, the appellant forwarded to the Commission a further medical certificate dated 26 February 2019 issued by Dr Rickman that stated:
Re: Ms Zlata Rous
(postal address)
who due to her anxiety disorder and feelings of overwhelm concerning having approx. 7 court cases going concurrently, I urge for medical reasons she is only able to deal with the Criminal Court cases at this stage. After these have been finalized she will be able to attend to thenext high priority court case.
On 28 February 2019, the Appeal was listed for directions before Commissioner Murphy. At the directions hearing the appellant provided the Commission and the respondent with a list of all her current legal matters. Commissioner Murphy stood the matter over for directions to 8 August 2019.
On 1 March 2019, at the request of the appellant, the Industrial Registrar allocated a second file number to the Appeal so that the appeal with respect to the dismissal of her Victimisation Application retained file number 2018/00127784 and the appeal with respect to the dismissal of her Injured Worker Application was allocated file number 2019/00067829.
Correspondence dated 11 July 2019, from solicitors for the respondent to the Industrial Registrar contained the following:
On 8 July 2019, the Respondent made enquiries with the NSW Courts and Tribunal's Registry as to the status of the Applicants' other proceedings. The Respondent was informed that the Proceeding is the only matter with a future date listed. It was also confirmed that the proceeding with case number 2017/387618 has been closed.
Enquiries were also made with the NSW Civil and Administrative Tribunal (NCAT). It was confirmed that both proceedings with case numbers SC 18/34132 and SC 18/38471 before the NCAT have been finalised
On 7 August 2019, the day before the scheduled directions hearing, the appellant provided the Commission with a medical certificate dated 6 August 2019 issued by Dr Rickman which stated:
Re: Ms Zlata Rous
(postal address)
who suffers from anxiety disorder which is currently aggravated by the large load of 4 court matters running simultaneously.
For her health and mental condition, it would be advisable that only 1 court matter was pursued at a time.
I urge the courts to respond where possible.
On 8 August 2019, the Appeal was listed for directions before Commissioner Murphy. Commissioner Murphy stood the matter over generally with liberty to the parties to apply to have it relisted on one week's notice.
On 17 February 2020, the respondent filed a Notice of Motion seeking an order that the Appeal and associated applications be set aside for want of due dispatch ("respondent's motion"). The respondent's motion was supported by an affidavit sworn by Christa Lenard, solicitor for the respondent, which set out the history of proceedings initiated by the appellant since the termination of her employment in or about March 2015. The respondent's motion was listed for a directions hearing on 5 March 2020.
On 3 March 2020, two days before the scheduled directions hearing, the appellant forwarded to the Commission a medical certificate dated 3 March 2020 issued by Dr Rickman and addressed to the Industrial Relations Commission which stated:
Re: Ms Zlata Rous
(postal address)
Thank you for seeing Zlata 52 yrs DOB 07/10/1967 for
who is suffering severe anxiety as she is involved in a number of court cases currently. She feels unable to deal with another significant court case with the Dept of Education and would like thecourt's consideration in delaying the matter.
On 5 March 2020, a directions hearing was convened before Chief Commissioner Constant. At this directions hearing, the Chief Commissioner made directions for the filing and serving of evidence and submissions. The respondent was given until 19 March 2020 to file and serve its material; the appellant until 19 June 2020 to file and serve her material; and the respondent until 10 July 2020 to file and serve any reply material. The respondent's motion was listed for hearing before the Full Bench on 8 September 2020.
On 19 March 2020, the respondent filed detailed written submissions in support of the respondent's motion.
On 23 March 2020, the appellant forwarded to the Commission a medical certificate dated 17 March 2020 issued by Dr Rickman which stated:
Re: Ms Zlata Rous
(postal address)
Due to her current health condition Zlata requires a delay in court proceedings for 8 weeks from todays date.
On 24 March 2020, the Chief Commissioner varied the directions made on 5 March 2020 so that the appellant was given until 17 July 2020 to file and serve her material and the respondent until 7 August 2020 to file and serve any reply material. 8 September 2020 was confirmed as the date for the hearing of the respondent's motion before the Full Bench.
On 15 July 2020, the appellant filed another Notice of Motion ("appellant's fourth motion") which contained the following:
Seeking to set aside timetable and vacate hearing dates issued on 5 and 10 March 2020 and 24 March 2020. Consistent medical certificates were given to the Industrial Relations Commission (IRC) prior to Directions Hearing held on 5 March 2020, including date of this motion with affidavit. All medical certificates have been substantially ignored by Commissioner Constant and the IRC in relation to running proceedings without legal representatives and against medical advice.
The appellant's fourth motion was supported by an affidavit sworn by her and filed at the same time, which contained the following:
This application is seeking to set aside Orders made by Commissioner Constant on 5, 10 and 24 March 2020 due to acute medical condition exacerbated by the manner and method of these and other proceedings that were conducted before this Commission in breach of my medical certificates and the Industrial Relations Act 1996.
We note that no orders were made on 10 March 2020. Annexed to the affidavit was a medical certificate dated 19 May 2020 issued by Dr Rickman which contained the following:
Re: Ms Zlata Rous,
(postal address)
who due to her Anxiety condition is medically unable to comply to the current direction procedure issued on 25 March 2020, as she is not able to take the time necessary to compile all necessary documents before the hearing on the 8 September 2020.
She is however able to comply to a new timetable issued for documents to be filed by November 2020 with a new hearing date set for 2021.
Also attached to the affidavit was a further medical certificate dated 30 June 2020 issued by Dr Rickman which stated:
Re: Ms Zlata Rous,
(postal address)
who is requesting an adjournment of proceedings until 1/3/21 for the following reasons:
She has a limited capacity to attend to court matters due to her high level of anxiety which has been ongoing since work injury of 2006.
Reasons for the prolonged recovery, according to Ms Rous, have been the following ongoing stressors:
In recent years these have been due to the following events:
according to Ms Rous, lawyers have not been representing her in the way she has felt was needed from 2015 to 2016.
in 2018 she underwent pelvic surgery and was hospitalized for approximately 5 days.
According to Ms Rous, there have been another 9 court proceedings 2017 to 2018, which involved her defending herself against 2 police convictions
According to Ms Rous she has had difficulty finding suitable legal representation in 2020.
According to Ms Rous there have been 3 hearings and 4 proceedings in other courts in the last 6 months approximately.
The appellant's fourth motion was listed before the Full Bench for a directions hearing on 22 July 2020. During that hearing the appellant's affidavit of 15 July 2020 was admitted into evidence and marked Exhibit Rous 1, after which Commissioner Murphy put the following to the appellant:
We will not be permitting cross examination on it. One of the matters that is set out in the annexures; there are two medical certificates from a Dr Elizabeth Rickman. One is dated 19 May 2020, and then immediately after that is a further medical certificate dated 30 June 2020. The first one, the 19 May one, indicates that you would be able to comply with a new timetable issued for documents to be filed by November 2020, with a new hearing date set for 2021. But then the subsequent certificate has a different timeframe where you're requesting, or your doctor is requesting, an adjournment of proceedings until 1 March 2021. The concern the Full Bench has is that that evidence from Dr Rickman is untested, and the Full Bench needs to be persuaded on tested medical evidence as to what your projected capacity to run your appeal is, because it cannot simply be left in abeyance for an indeterminate period. There's a motion on now for your appeals to be struck out, and that will have to be dealt with at some point in time. What we are proposing to do is to allow you an opportunity to put on evidence from Dr Rickman or any other medical advisor that you are consulting that sets out what your current health status is and what your projected capacity to run your appeals is likely to be, and that evidence to be in a form that can be tested both by the respondent and by the members of the Full Bench. We propose and we'll hear from Ms Lenard in relation to this shortly to set this matter down to take that evidence at 10am on Friday 7 August 2020.
The following directions were then made:
1. Appellant to file and serve written report from a medical professional by the close of business on Friday, 31 July 2020.
2. Adjourned to 10am on Friday, 7 August 2020 hearing of evidence by the Appellant's medical professional who provided the written report which was filed by the close of business on Friday, 31 July 2020 and for hearing in full of the Appellant's Notice of Motion by videoconference.
3. The Appellant's medical professional may give evidence by videoconference or teleconference.
These directions together with an Appointment for Hearing were provided to the parties by way of email on 23 July 2020.
On 24 July 2020, the appellant forwarded an email to the Commission which contained the following:
Regarding the 4 emails and attachments sent to me yesterday from registry in two matters -see below in which the case matters were removed from the court and me, I state,
1. The court has not given clear direction which motion will be heard allegedly on 7 August 2020. I note there have been several filed in this court not heard to date.
2. The court has not advised me why my motion listed for the 22.07.2020 was stated to be an exhibit by Commissioner Murphy
3. The court has failed to explain the above to me on the day or subsequent
4. The court has refused or failed to give me rules of this court -despite asking for such several times
5. The court refuses to list which matter is which claim number and only the second claim number being 2019 / 00067829 was used by court for the first time in these orders
6. The court have failed to provide me the rules whereby a medical practitioner can be asked to be cross examined by the respondent and the Commission when proceedings have not even heard one Motion listed to date
7. The court has failed to explain how a medical practitioner who works in the medicare system and has certain requirements would be able to participate in these court proceedings for any length of time beyond the 15 minutes as allocated by medicare or why she would be compelled to participate in such a hearing on days she does not work
8. The court has stated it does not accept my medical certificate, my medical report or WorkCover certificate-thus forcing me to speak on a directions hearing on the 22.07.2020 in a motion I listed - but no aspects of my motion was discussed
9. The court fails to state why I should be compelled to participate in any 4 hour hearing on the 7th August 2020- and nor was a 4 hour hearing discussed on the 22.07.2020 with me, and nor was any hearing discussed. It was stated the doctor was to appear and speak only.
10. I do not believe I will be saying anything further or participating in any future directions hearing unless I have a lawyer who is representing me
11. The commission and the respondent has failed to explain why the respondent had 3 lawyers present at the directions hearing on 22.07.2020
12. A complaint about Commissioner Constants orders and directions of the 5 March 2020 was already filed with the Judicial Commission and other bodies.
13. The Judicial Commission believes I am not capable of completing forms or understanding them, so its pretty obvious I cant be participating in any hearings dealing with the respondent as my medical condition prevents me
Ms Z Rous
The appellant forwarded further email correspondence to the Commission on 26 July 2020. However no medical report was filed by 31 July 2020. Instead, on 31 July 2020, the appellant filed two further Notices of Motion and two further supporting affidavits in matter number 2018/00127784 ("appellant's fifth motion") and matter number 2019/00067829 ("appellant's sixth motion"). Both motions effectively sought the same relief, namely, that the directions made by Chief Commissioner Constant in March 2020 be set aside. The supporting affidavits were in identical terms.
Annexed to the affidavits was a medical certificate dated 28 July 2020 issued by Dr Rickman which was in identical terms to the previous medical certificate dated 30 June 2020 which is set out at [49] above.
The appellant's fourth, fifth and sixth motions were heard before the Full Bench on 7 August 2020. During that hearing, the affidavit filed by the appellant on 31 July 2020 was admitted into evidence and marked as Exhibit Rous 2. Following that hearing, the ex tempore decision of the Full Bench was delivered by Commissioner Murphy and is set out in full below:
MURPHY C: On 29 March 2018, the former Chief Commissioner Kite SC handed down a decision in relation to two applications by Ms Rous, one being an application for relief and victimisation and the other being an application pursuant to s 242 of the Workers Compensation Act. In that decision, the former chief commissioner dismissed both applications. On 20 April 2018, Ms Rous filed an application for leave to appeal and appeal in relation to both matters. On 17 February 2020, almost two years later, the respondent, the Department of Education, filed a notice of motion seeking to have the appeals that were filed on 20 April 2018 effectively struck out.
On 5 March 2020, Chief Commissioner Constant held a directions hearing in relation to the Department's notice of motion, and that was made clear on the transcript when the Chief Commissioner said "Thank you. It's been listed today for directions as a result of a notice of motion filed by the respondent." On that occasion the Chief Commissioner set down a timetable for the disposition of that notice of motion by the respondent and had the matter listed on 8 September for hearing of that motion. The directions that were made on that occasion by the Chief Commissioner were then further varied on 24 March 2020.
On 15 July 2020 Ms Rous filed a notice of motion effectively seeking to have the timetable that had been previously set set aside, which would have had the effect of the hearing or the proposed hearing of the Department's notice of motion on 8 September also set aside. That motion was supported by an affidavit which became exhibit ROUS1 in the proceedings. On 22 July 2020 the Full Bench convened a directions hearing in relation to Ms Rous' motion filed on 15 July. At that directions hearing the Full Bench provided Ms Rous with a further opportunity to put on any further medical evidence that she wished to rely upon in support of her motion, and it was indicated that the author of any further medical report should be available to have that evidence tested both by the respondent and by the Full Bench.
Following that directions hearing on 31 July 2020 Ms Rous filed two further motions, effectively seeking the same outcome, namely that the directions that had been previously set in relation to the Department's notice of motion be set aside with the effect that the hearing of that motion on 8 September would not go ahead. Those further notices of motion were supported by a further affidavit by Ms Rous which became exhibit ROUS2 in the proceedings. That affidavit had annexed to it a further certificate from Dr Elizabeth Rickman, but Dr Rickman was not made available to have that evidence tested by the respondent or by the Full Bench.
Based on the evidence before the Full Bench and the submissions made this morning, the Full Bench has determined to dismiss each of the notices of motion filed by Ms Rous on 15 and 31 July 2020. The Full Bench intends to proceed with the hearing of the respondent's notice of motion on 8 September 2020. The Full Bench varies the previous directions that have been made to allow for Ms Rous to file any further evidence, including any further evidence in support of her claim that she is unfit to proceed with her appeal, and that evidence would need to be filed by close of business on Friday 28 August 2020, with the respondent having an opportunity to put on any reply material to that by close of business on 4 September.
The Full Bench confirms that the matter that is to be heard on 8 September is the notice of motion of the respondent, not the substantive appeal proceedings, and the parties should be fully aware that if having heard the motion of the respondent on 8 September if that motion is granted the effect of that is that the appeal proceedings are dismissed.
On 27 August 2020, the appellant forwarded to the Commission three WorkCover NSW certificates of capacity. Each of the certificates of capacity was signed by Dr Rickman, apparently on 18 August 2020.
On the first certificate, of which two identical copies were provided, the places for patient/worker to sign had the same date, "18/08/2020", but were left blank.
The "Patient stated date of injury" was "8/8/20" but no information was provided as to the nature of the injury. In the section of the certificate headed "MANAGEMENT PLAN FOR THIS PERIOD" the following appeared:
Treatment/medication type and duration (Duration: short-term = 12 weeks)
seeing psychologist Cathy Wood
In the section of the certificate headed "CAPACITY FOR EMPLOYMENT (please consider the health befits of work when completing this section)" the following appeared:
Patient has no current capacity for any employment from to 23/7/20-23/8/20
If no current work capacity, estimated time within 6 mths if receive training
to return to any type of employment
Factors delaying recovery no training
Do you recommend referral to workplace yes for training
rehabilitation provider?
The second version of the certificate of capacity provided by the appellant contained the same information as set out immediately above apart from the period of "no current capacity for any employment" which was shown as "to 23/6/20 23/7/20". The "Patient stated date of injury" was altered with the hand written addition of the numerals "06", which made the stated date of injury "8/8/2006" rather than "8/8/20". There were other handwritten entries on the certificate but no further information as to the nature of the injury. The section of the certificate which asked "How is the injury/disease related to work?" had the handwritten entry "see claims made to ensure". It appears that this version of the certificate was signed by both Dr Rickman and the appellant on 18 August 2020.
A third version of the certificate which was forwarded to the Commission by the appellant contained the same information as the first version including the period of "no current capacity for any employment" being "to 23/7/20 23/8/20" but with the same handwritten entries as appeared on the second version of the certificate including the "Patient stated date of injury" having been altered to "8/8/2006". It appears that this version of the certificate was also signed by Dr Rickman and the appellant on 18 August 2020.
On 28 August 2020, the appellant filed another Notice of Motion ("appellant's seventh motion") "[s]eeking to dismiss respondents motion and affidavit filed 17 February 2020 and Motion 19 March 2020". We take the reference to the respondent's "Motion 19 March 2020" to be a reference to the written submissions filed by the respondent on that date. In the appellant's seventh motion the appellant stated that, "I will not be able to complete this filing as I was directed by the commission on 10 August 2020 adequately and need another week".
The appellant's seventh motion also contained the following:
Commissioner Constant should be removed and is prejudicing my matter for a fair hearing. Her conduct was reported before the judicial Commission and she should not be presiding whilst an investigation is under way.
The appellant's seventh motion was supported by an affidavit sworn and filed by the applicant at the same time. That affidavit had annexed to it the WorkCover certificates of capacity referred to at [57]-[62] above and various other documents relating to difficulties that the appellant had experienced in obtaining legal representation and to a workers compensation claim she had made in 2015.
On 7 September 2020, the respondent filed written submissions in opposition to the appellant's seventh motion.
At the outset of the hearing before the Full Bench, the appellant was asked by Chief Commissioner Constant if she was seeking that the Chief Commissioner recuse herself from hearing the respondent's motion. The appellant confirmed that she did and put submissions in support of her recusal application. After considering the appellant's submissions the Chief Commissioner handed down an ex tempore decision in which she declined to recuse herself.
The Full Bench then invited the appellant to put submissions in support of her seventh motion. The appellant stated that she had filed a chronology which was emailed to the Commission the previous evening. She stated, "That is what I need to put in evidence". The appellant's chronology is set out in full below:
Chronology of workplace injury P179098X from 2006-2020 for Zlata Rous
Dep of Education = DEC
2006 false allegations against Zlata Rous of criminal activity(hitting another
teacher) was made & Ms Rous left workplace due to injury on 8.8.2006. DEC failed to investigate impartially.
2007 claim with insurer was accepted
2008 claim with insurer denied & later accepted
2008 RTW started at different school to substantive position at SSHS.
2009 March- Workers Compensation Determination found in my favour.
2008 HEOC filing by Turner Freeman as Ms Rous denied ability to return to her substantive teaching position.
2009 Federal Court Deed of Release signed 17.12.2009 & Ms Rous accepted a new school as her substantive teaching position.
2010 DEC immediately breached the Deed and refused to enter into a RTW so Ms Rous could not continue to teach at new school. Ms Rous still had an ongoing WC matter.
2011 Ms Rous remained at home the whole year as insurer, rehab & DEC parties Failed to participate in RTW meetings.
2012 Ms Rous had to leave her defacto relationship due to domestic violence and was stuck in an abusive relationship for years due to being out of work.
2012 February Ms Rous removes items from the home with police assistance.
2012 First RTW plan drawn up in years so Ms Rous went to teach at Wiley Park Girls High.
2012 Ms Rous is now homeless & forced to live in temporary accommodation with family.
2012 RTW Plan was not continued by Insurer & other parties from May. Ms Rous was refused access to RTW Plan.
2013 Ms Rous remained on WC medical certificates the whole year with little progress as very little training was provided. She was taken off timetabled classes 7 her classes given to casuals.
2014 WC medical certificates were stopped beginning this year-but WC legislation covered Ms Rous if she had a relapse within 3 months. Yes-In March Ms Rous had a relapse again as she was told she needs to transfer.
2014 from May Ms Rous was given Directives to not attend Monday staff meetings.
2014 Ms Rous was investigated BY EPAC whilst reinjured. By Nov, the investing stated she had to go off premises for alternative duties. Police called Ms Rous that she may be arrested for trespass if she attended her school. Ms Rous has a second relapse when police warned her and she never returned to school after 26.11.___________________________
From proceedings in IRC 2015
NUMEROUS FALSE FACTS WERE GIVEN BY DEC IN CHRONOLOGY AND MISLEADING FACTS TO HIGHLIGHT MS ROUS WAS RUNNING PROCEEDINGS TO DELYA MATTERS AND HID WHICH FILINGS MATTERS WHICH WERE BEFORE COURT.
2015 March-Ms Rous was dismissed. Filled S84 (1) in Industrial Relations Commission based on instructions by Barrister Leo Tydall who represented me from date of filing.
2015 Workers Compensation Commission HELD ON 28.10.2015 Ms Rous injuries in March and November 2014 were recognised.
2015-2016 Lawyers-Sydney City Criminal lawyers -Robert Daoud {brought in later by Tyndal) & barrister were running wrong application being s84 (1) Industrial Relations Act 1996 despite Ms Rous stating clearly she was under WC legislation and stated several times to file I was still under Workers compensation act from date of dismissal.
In chronology supplied by respondent in matter titled 2018/127784 -they do not mention these proceedings and that they were run in breach of section 90a of Industrial Relations Act 1996 due to Federal Court Deed of release signed 17.12.2009 and in breach of Workers Compensation Act 1987 as I was still injured and covered under the workers compensation act 1987.
KEY--Dates of hearing vacated by DEC in August 2015 and instructions came via email from IRC and Christopher Miles who sought hearing dates and refused to entertain any RTW discussion when ordered by Commissioner Tabbaa on 14 May 2015.
This is deliberately falsely provided with numerous other key dates by the DEC.
WCC hearing in application P179098X266 WAS BEFORE THE COMMISSION AS PART OF ONGOING WORK PLACE INJURY. MY TWO SUBSEQUENT AGGREVATIONS OF ORIGINAL INJURY OF 2006 WAS AGAIN AGGREVATED BY TWO NEW INJURIES IN MARCH 2014 AND
NOVEMBER 2014. MY INJURIES WERE RECOGNISED IN THE WCC.
2 and 3 December 2015 the DEC filed 6 statements all failing to mention and state that I was already injured overed under the workers compensation act which included a statement by former principal maureen davis. These pushed me in menopause in December 2015 and was confirmed with medical reports and bloodtest in January 2016.
June 16 2016 lawyers all abandoned application although they stated they filed s242 under Workers compensation act 1987 before they abandoned it. This was not confirmed by IRC so I filed the application on February 2017. These lawyers were before LS and Bar Assoc yet just got slap over wrists and never investigated for their fraudulent and false representations they gave as advice. I was medically so stressed and distressed I sought Commissioner Newall remove the orders he made seeking I run the proceedings myself and I later sought a stay of proceedings which was granted.
THE IRC despite me seeking numerous times, did not assist me when the lawyers just abandoned by applications being first the s84(1) and then stated they filed s242 application under workers compensation act 1987.
So when I was asked by Commissioner Kite I could not run three matters - I was NOT running three matters according to what the lawyers were advising me they did. Comm Kite stated he will take out a third one and stated to me as I could not run 3...I was not asked which one I would remove as I said I don't know and needed legal advice as to which he just removed the application of s84 without consulting me.
At NO STAGE DID I COMMENCE PROCEEDINGS ON 23 FEBRUARY 2017 NDER S 243 OF THE WORKERS COMPENSATION ACT 1987 AS THE DEC STATE. THIS IS DELIBERATE FALSE AND ALREADY PROVEN FALSE WITH EVIDENCE PRESENTED. NO SUCH APPLICATION EXISTS UNDER 2017 /58727 IN THIS COURT.
2017 Ms Rous files correct application being s242 reinstatement under WC, as this was still not before the IRC. By April the s213 Victimisation application was also filed. Ms Rous continually forced to run her own proceedings despite not being medically fit and having 5 other proceedings afoot relating to 2 different dysfunctional strata blocks in Sydney started by those parties.
18 May 2017 - orders made by commissioner KITE TO COMBINE TWO APPLICATIONS MADE BY ME IN DIFFERENT APPLICATIONS AGAINST MY SPECIFIC INSTRUCTIONS AND AMBUSHED ME WITH NUMEROUS QUESTIONS WHEN NO ALWYER WAS PRESENT AND SOUGHT I MAKE DECISIONS ABOUT REMOVING ONE APPLICATION AS THREE WERE PRESENT -BUT I REFUSED TO MAKE THIS DECISION ON THIS DATE AS I STATED I NEEDED LEGAL ADVICE. ORDERS LATER SENT BY THE IRC VIA EMAIL AND NEVER SENT BY REGISTRARS DAYS LATER AND AFTER I HAD TO KEEP ASKING FOR THE ORDERS THAT KITE MADE.
FROM FEB 2016 A complaint was made to the ANTI DISCRIMINATION BOARD REGARDING THE discriminatory manner in which I was subjected to in the IRC and denied procedural fairness. I was denied conciliation and mediation and constantly denied access to casual teaching training as I was illegally blacklisted and the IRC colluded with the Dec to make sure my rights were removed and legal assistance removed also. Two complaints were lodged being C2017/0627 and C2017/0628.
On 24 April 2018 I sought and filed application with IRC for leave to go to NSW Civil and Administrative Tribunal with claim of discrimination I filed against the IRC, yet this was never heard or approved by the IRC.
2017- 3 CRIMINAL PROCEEDINGS WERE COMMENCED AGAINST ME REGARDING STRATA ISSUES AND THESE WILL BE FURTHER COURT PROCEEDINGS AGAINST POLICE IN DUE COURSE.
On 8 February 2017 an application was lodged on my behalf by the Anti Discrimination Board - where it mislead me as to what was going to be filed and complied a list of evidence to support an alleged complaint which was NOT what I made to the Board. The Board listed the respondent to be the Dec, instead of the real respondent as being the conduct I was experiencing before the IRC as a result of the conduct of Commissioner Newall and Commissioner Kite. Commissioner Kite stated when I filed a application for Stay to go to the Anti Discrimination Board - that leave was NOT granted. It was not granted at any stage -yet the DEC filed on 11 Dec 2017 submissions regardless to dismiss the application.
The application was dismissed by January 2018 because rules and procedural fairness was never going to be afforded to me due to the complaint I made about the discriminatory manner in which I was treated in the IRC. A bogus complaint regarding an investigation of me whilst I was teaching was used as evidence to dismiss the proceedings- when the proceedings were NEVER ABOUT THE CONDUCT OF DEC IN THE IRC OR OF THE DEC IN THE WORKPLACE OF 2014.
ALL facts for when the matters were before the Anti Discrimination Board has been filed falsely by Dec for the obvious reasons above. The second complaint by Anti-Discrimination Board was never filed because they probably thought 1 bogus filing by them on my behalf was enough.
29 March 2018 both applications in IRC were dismissed by Commissioner Kite.
20 April 2018 appeal filed- MATTER 2018 /127784 when both matters were dismissed by Commissioner Kite ON 29.3.2018 who only GAVE 1 NUMBER WHEN DISMISSING BOTH APPLICATIONS HE COMBINED TOGETHER (18.5.2017) WITHOUT MY INSTRUCTIONS.
24 April 2018 I filed waive strict compliance form for 18/127784 matter.I stated the unfair dismissal was run in breach of the IRC Act in the Commission by my former legal team for TWO YEARS! I stated they refused to file the correct procedure and compliants were lodged about them with various bodies.
3 MAY 2018 I sought a Stay of proceedings to Commissioner Kites decision on 29 March 2018 be dismissed as the Federal Court Deed of Release was completely ignored and numerous procedural direction not afforded to me whilst I had no lawyers. This was not granted obviously.
31.5.2018 I saw 2 specialists due to complications of surgery of 25.5.2018 and given to IRC on 1 June 2018.
May 25 2018 Ms Rous in hospital for medical procedure and same day the IRC gave unlawful orders for further filings. She set aside those orders due to procedural fairness removed and filed 6 July 2018.
25 May 2018 orders made in Chambers by Commissioner Stanton when I gave evidence to court I will be in surgery on this date.
30 May 2018 in email to IRC I state numerous facts not addressed by IRC and further filings to the appeal was filed by me and this has not been acknowledged .
On 4 June 2018 further orders were sent to me when I was medically still unfit and given to the court based on surgery of 25 may 2018.
4 June 2018 further orders were made in application 2018/00127784- and no other application number.
5 June 2018 hearing date was vacated as I also had a hearing date to appear in the District court as given to IRC previously. On 4 June Directions were again just sent in the absence of my presence and in only one matter before the IRC being 2018/00127784
No leave only hearing was ever given after this date for August 2018 as those orders state.
On 14 June 2018 at 3:18PM registrar Morgan sends an email to my account stating issues and listed under Subject RE your requested document Results letter Notice of Orders made and states in the email several things and states a NEW TIMETABLE WAS SET DOWN ON 5 JUNE 2018 AS FOLLOWS AND LISTS 5 MATTERS UNDER THOSE HEADINGS.
SIGNED REGISTRAR MORGAN.
6 July 20181 filed motion to set aside orders made on 25 May 2018.
This motion and affidavit by me was never listed by the commission but I made reference to it on filing to IRC of 14 August 20118 and listed as "ZR11" of 28 August 2020 affidavit.
IN December 2018 before commissioner Murphy in IRC I gave a list of numerous court proceedings against me which were all deliberate proceedings to assist the DEC to keep me from running the IRC matters. I also gave another list in August 2019.
2019 Ms Rous is forced to defend 3 other vexatious strata proceedings afoot.
2018-2020 Ms Rous is medically unfit to run proceedings in IRC and sought to stay the ONLY application before the court at the time. Timetable issued in March by IRC when Ms Rous was only given 1 appeal number and NOT able to find a lawyer to take the matter on despite waiting 2.5 months for legal advice and paying for this legal advice and speaking with no less than 7 lawyers.
Ms Rous cannot comply with timetable issued as she is medically unable to run her own proceedings due to acute medical conditions and ongoing treatment.
I have not filed and was not able to compile the chronology-written extremely briefly and haphazardly on 7.9.2020 and now stopped at 8.45pm.
Numerous facts were deliberately made up by dec in this application to dismiss the appeals afoot which were never given leave to run as yet with proper timetable issued to be filled and run in accordance with rules and procedural fairness.
No such submissions have been filed by the respondent on 30 July 2018 in response to application to leave to appeal in any of the two appeal matters listed before this court and nor do they provide this evidence.
The appellant's affidavit sworn on 28 August 2020 was admitted into evidence and marked Exhibit Rous 3. The appellant's email of 7 September 2020, together with the attached chronology, was admitted into evidence and marked Exhibit Rous 4. The appellant's email of 27 August 2020, together with the attached WorkCover certificates of capacity was admitted into evidence and marked Exhibit Rous 5.
In support of its motion to have the Appeal dismissed for want of due despatch, the respondent relied upon the written submissions file on 19 March 2020 which we set out below (footnotes omitted):
2. Submissions in support of the Motion
Civil Procedure Act
2.1 The Respondent submits that the IRC must have regard to the provisions of the Civil Procedure Act 2005 (NSW) (CP Act) in the management of the Proceedings and the determination of the Motion.
2.2 Pursuant to s. 56(1) of the CP Act, the overriding purpose of the CP Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
2.3 Furthermore, under s. 56(3) of the CP Act, all parties have a duty to assist the court to further this overriding purpose, participate in the processes of the court and comply with directions and orders.
2.4 Therefore, in relation to the Proceedings, the Applicant is under a duty to:
(a) assist the IRC to achieve the just, quick and cheap resolution of the Proceedings;
(b) participate in the processes of the IRC; and
(c) comply with directions and orders of the IRC.
2.5 The IRC has considered the application of s. 56 of the CP Act to proceedings before the IRC (Beavan v Industrial Relations Secretary (No 3) [2016] NSWIRComm 1008; Harakh v Industrial Relations Secretary (Corrective Services NSW) [2017] NSWIRComm 1016; Transport Workers' Union of New South Wales (on Behalf of RRA Enterprises Pty Limited) v Corporate Express Supply Chain Pty Limited Trading as Staples (No 1) [2015] NSWIRComm 1021; Charmaine Beatrice McIntosh and Secretary, Department of Education [2017] NSWIRComm 1042).
2.6 The Applicant has failed to discharge her duties under s56(3) of the CP Act
2.7 In particular, in relation to the quick resolution of proceedings the Applicant filed the appeal on 20 April 2018. Since then Ms Rous has also filed:
(a) an application to waive compliance with procedural requirements on 24 April 2018,
(b) an application to stay the decision of Chief Commissioner Kite on 3 May 2018,
(c) two affidavits seeming to be in support of the appeal on 18 May 2018,
(d) a notice of motion on 6 July 2018; and
(e) a notice of motion on 14 August 2018 seeking, amongst other things to adjourn the directions hearing the following day.
2.8 None of the above filed by Ms Rous have advanced her substantive case, being the appeal of the decision of Chief Commissioner Kite. No reasonable or adequate reason nor substantive evidence has been provided as to why the Applicant has failed to progress her substantive case.
2.9 In relation to participating in the processes of the IRC and complying with orders, Ms Rous did not file submissions on leave to appeal by close of business on 9 July 2018 as she was ordered to do, nor has she filed any such submissions at all.
2.10 There has been no reasonable explanation advanced by the Applicant that could justify such failures and she has not otherwise communicated her intention to prosecute her claim apart from verbally at the Directions Hearing.
2.11 The Respondent has been put to the repeated trouble of appearing in the Proceedings and filing documentation in response to the Applicant's applications.
2.12 The Respondent submits that the IRC should exercise its discretion under s. 61(3) of the CP Act and, due to the Applicant's failure to comply with the Directions and failure to prosecute her case, dismiss the Proceedings in their entirety. Such an action is entirely consistent with the IRC's obligations to facilitate the just, quick and cheap resolution of the Proceedings.
Uniform Civil Procedure Rules
2.13 The Respondent further submits that the Proceedings should be dismissed pursuant to rule 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW)(UCPR). Rule 12.7 of the UCPR states as follows:
"If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit".
2.14 In Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1 (Beavan No 1), the Industrial Court of New South Wales set out the principles relevant to the determination of an application under Rule 12.7, at [108]-[113]:
108. The power exercised by the Commission under r 12.7 is a discretionary power: Snow v Snow /2015] NSWSC 90 ('Snow) at [28]; Hanshaw v Seven Network (Operations) Ltd 2014 [NSWSCJ 623 at [23) and Micallef at [45]. It is a power that should not be lightly exercised: Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - A Division of Westpac Banking Corporation and Ors (No. 2) [2011] NSWSC 1122 ('Udowenko') at [120] and Fleet v State of New South Wales [2009] NSWSC 75 at [15].
109. The exercise of that power is a balancing exercise in the course of which a variety of factors may be considered including those in Hoser v Hartcher [1999] NSWSC 527; see Dank v Cronulla Sutherland District Rugby League Football Club Limited [2014] NSWCA 288 at [103]. The ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed: Bi v Mourad [2010] NSWCA 17 at [78]) and Hoser at [20(1)].
110. The discretion must be exercised having regard to the requirements of ss 56 to 60 of the CP Act: Mourad at [49], Udowenko at [121], Snow at [28] and Wakim v Tadros [2011] NSWSC 308 at /28] ('Wakim'). Hence, it is, inter alia, necessary to have regard to the "overriding purpose" referred to in s 56 being "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". This is particularly pronounced where the essence of the application before the Court is delay: Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 at [52].
111. Section 57 deals with the objects of case management and, by s 58, the Commission is directed to seek to act in accordance with the dictates of justice. (I agree with the approach adopted in the authorities mentioned in the previous paragraph that s 58 is relevant to the exercise of power under r 12.7. The exercise of a discretion to dismiss for want of due despatch is caught by the expression "the management of proceedings" ins 58(1)(a) and the particular order or direction that may be made to that end pursuant to s 58(1)/a)(iii).)
112. The case of McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308 ('McMahon') concerned an appeal in respect of a refusal by the primary judge to grant leave to the appellant to amend a statement of claim. Briefly stated, the appellant in that case sought to file a fourth amended statement of claim in February 2010, having been granted leave to file a third amended statement of claim in December 2009. The proposed fourth amended statement of claim sought to amend two imputations.
113. In his judgment, Allsop P discussed the wide implications of ss 56 to 60 of the CP Act. His Honour stated that those sections of the CP Act brought about important changes to the conduct of civil litigation in New South Wales (at [26]). However, His Honour emphatically observed at [30] that "[s]ections 56-58 must be complied with" and that requirement "will involve the weighing of competing considerations". This observation is relevant to all civil proceedings to which the GP Act applies and, in particular, proceedings to determine applications to dismiss for want of due despatch under r 12. 7.
2.15 In Kabir v Department of Family and Community Services [2016] NSWIRC 1009 (Kabir), Commissioner Newall observed at [13]-[15]:
[13] I remain of the view that 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 r 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 dispatch. 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 fight of the provisions of the Civil Procedure Act itself, are not to be used to ensure that parties who do conduct themselves with due dispatch are not penalised by parties who do not.
[14] In that regard I observe that the Court in Beavan (No 1) drew attention to the observations of the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Ply Ltd [2013] HCA 46; (2013) 250 CLR 303 at [56]:
[56] The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. ft is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
[15] I accept that Mr Kabir is presently unrepresented. I do not regard that as excusing him from the operation of the Civil Procedure Act.
2.16 Beavan No 1 and Kabir were both applied by the IRC in Charmaine Beatrice McIntosh and Secretary, Department of Education [2017] NSWIRComm 1042 where Seymour C dismissed an application for unfair dismissal on the basis of a lack of due dispatch due to the applicant's failure to comply with directions and failure to attend directions hearing.
Prejudice
2.17 The discretion to dismiss proceedings for want of due dispatch is a discretion not to be exercised lightly and only in a clear case where it is manifestly warranted (Beavan No 1 at [80]). The Respondent submits that, having balanced the prejudice to each party, justice demands that the Proceedings be dismissed.
2.18 The Applicant is yet to provide any evidence as to the specific prejudice she will suffer if the Proceedings are dismissed.
2.19 The Respondent has expended time and money in responding to the Applicant's appeal since it was commenced, which has required numerous actions by the Respondent and appearances before the IRC, as outlined in the Lenard Affidavit. The Respondent has now also, in reasonably seeking to have certainty about the outcome of the Proceedings, expended time and money in preparing and filing the Motion and attending the Directions Hearing. It can be reasonably expected that the expense to the Respondent will continue to be incurred up until the time of hearing of the Motion. If the Respondent is unsuccessful in its Motion, it will continue to expend time and money responding to the Applicant's appeal, with no certainty as to when that matter will be finalised.
2.20 The decision of Chief Commissioner Kite which the Applicant in these Proceedings is seeking to appeal, relates to a motion to dismiss proceedings concerning events that occurred in or about March 2015. If this Motion is dismissed and the Respondent is ultimately required to put on evidence in defence of matters that occurred in 2015, it would be severely prejudiced as the availability of witnesses and documentary evidence, and witness recollection is likely to have significantly diminished due the time that has elapsed.
2.21 As such, the balance of the prejudice to either party at present weighs in favour of dismissing the Proceedings.
Reasons for not promptly prosecuting
2.22 As per Kabir, cogent and compelling reasons must be presented by the Applicant should she fail to promptly prosecute the Proceedings. To date, the reasons provided by the Applicant for the delays have been neither cogent nor compelling.
2.23 First, the Applicant claims that her medical state prohibits her from advancing the Proceedings.
2.24 On 14 August 2018, the Applicant annexed a medical certificate to her affidavit in support of a notice of motion. That certificate was provided by a general practitioner Dr Rickman and simply states the Applicant was "unfit for work from 10/08/2018 to 18/08/2018 inclusive".
2.25 On 10 January 2019, the Applicant provided the Respondent with a further medical certificate from the same Dr Rickman which stated the Applicant "will be unfit for work from 08/01/2019 to 01/03/2019 inclusive due to anxiety disorder'' and "is fit to deal with 1 court case matter a time."
2.26 On 7 August 2019, the Applicant provided the Respondent and the !RC with a further medical certificate from the same Dr Rickman which stated the Applicant "suffers from anxiety disorder which is currently aggravated by the large load of 4 court matters running simultaneously'' and "it would be advisable that only 1 court matter was pursued at a time."
2.27 On 3 March 2020 (as part of the 3 March Email), the Applicant provided the Respondent with a further medical certificate from the same Dr Rickman which stated the Applicant "is suffering severe anxiety'' and "feels unable to deal with another significant court case with the Dept of Education and would like thecourt's (sic) consideration in delaying the matter."
2.28 This is the totality of the medical evidence before the IRC in relation to the Proceedings.
2.29 With the greatest respect to the Applicant, in respect of the medical evidence provided the Respondent submits that:
(a) it is insufficient to justify the delay - the medical evidence does not amount to a diagnosis by a specialist nor does it meaningfully detail the effect of any medical condition on the Applicant's ability to deal with the Proceedings;
(b) it is insufficient to justify the Applicant's repeated failure to meet her obligations under s. 56(3) of the CP Act - once again, the medical evidence does not amount to a diagnosis by a specialist, specify the medication (if any) the Applicant has been prescribed to treat the alleged medical condition nor does it meaningfully detail the effect of any medical condition on the Applicant's ability to deal with the Proceedings; and
(c) it does not provide any information as to when Ms Rous will be fit to prosecute her case.
2.30 The Respondent further submits that the medical evidence provided is inconsistent with the facts. Since the medical evidence provided by the Applicant on 10 January 2019 which stated the Applicant was fit to deal with one proceeding at a time, Ms Rous appears to have become involved in a number of proceedings in the New South Wales Civil and Administrative Tribunal and the New South Wales Supreme Court for which she is 'dealing'. The Respondent has deduced this from the case numbers provided by Ms Rous in the 3 March Email all of which have a "19" or "20" prefix suggesting they were commenced in 2019 or 2020. It matters not whether the Applicant has commenced or is defending any of those proceedings, it appears on the face of the 3 March Email that the Applicant is and has been contending with more than one case matter.
2.31 Indeed, at the Directions Hearing the following exchange occurred:
CHIEF COMMISSIONER: So taking into consideration everything that you've said to me, you have indicated that you have a matter in court in May and until then you won't be in a position to prepare for this matter, but after that every other proceeding you have referred to is one that's been commenced after this appeal.
APPLICANT: Yes.
CHIEF COMMISSIONER: That's correct?
APPLICANT: Yes.
2.32 The Respondent submits that by becoming involved in numerous other proceedings since January 2019, the Applicant has clearly engaged in conduct which is contrary to the medical evidence provided on 10 January 2019.
2.33 In our respectful submission, this must diminish the Applicant's ability to rely on this medical evidence in support of any reason for her failure to meet her obligations under the CP Act and UCPR.
2.34 Second, the Applicant claims she has not received legal advice. At the Directions Hearing, Ms Rous stated, and Chief Commissioner Constant confirmed, that she was due to meet with a lawyer in relation to the Motion on 10 March 2020. This will allow the Applicant approximately 6 months from first meeting with her lawyers until the date of hearing of the Motion.
2.35 The concerns regarding legal representation should now be addressed given the statement from Ms Rous at the Directions Hearing about meeting with a lawyer on 10 March 2020 and the length of time prior to the hearing of Motion during which the Applicant ought to be able to obtain adequate advice.
2.36 It should also be noted that Ms Rous has consistently relied on her claim that she has been unable to get legal advice as a reason to delay various proceedings since at least 2017. Chief Commissioner Kite in deciding to grant the Respondent's previous notice of motion remarked that Ms Rous' claims in relation to her inability to obtain legal advice were raised on several occasions without her indicating what steps she had taken to obtain legal advice, or indeed showing any sign of obtaining legal advice. No doubt there comes a time when such claims, without further evidence of action by the Applicant to actually seek legal advice, warrant little, if any weight.
Prospects
2.37 It is also appropriate to consider the prospects in the Applicant's substantive case (Beavan No 1 at [141]). The Respondent submits that the application for leave to appeal and the appeal will fail.
2.38 The principles concerning leave to appeal are well settled. The Respondent filed comprehensive submissions on this point in this proceeding on 30 July 2018.
2.39 To date, the Appellant has not filed any submissions in support of her leave application and therefore has not demonstrated any case that may arise to an appellable error, nor has she identified or particularised her appeal grounds sufficiently to make out an arguable case, or any case at all that points to an appealable error.
2.40 The Applicant's application for leave to appeal and appeal in this regard is entirely misconceived, with no prospects of success.
2.41 In the circumstances the Respondent seeks an order dismissing the Proceedings.
[3]
Determination
We propose to dismiss the Appeal on the basis that the appellant has not prosecuted the proceedings with due dispatch. We do so for the reasons set out in the respondent's written submissions set out above with which we agree. In particular, we agree with the respondent's analysis of relevant authorities at paragraphs 2.14 to 2.16 which we do not repeat.
We also agree with the respondent's submissions in relation to the appellant's "medical evidence" at paragraphs 2.23 to 2.30. To that we would add that the medical certificates referred to at [8], [27], [44], [48] and [49] do not advance the appellant's cause.
Back on 27 March 2018, Dr Rickman stated that the appellant "has a medical condition and will require an extension of 4 weeks on documents to be filed to the Tribunal" (at [8]). Then on 16 October 2018, Dr Rickman was seeking, on behalf of the appellant, "an extension on work due of 1 month" [at [27]).
Coming forward 17 months to 23 March this year, Dr Rickman, on behalf of the appellant, was seeking "a delay in court proceedings for 8 weeks from today's date" (at [44]). On 19 May 2020, Dr Rickman stated that the appellant would be "able to comply to a new timetable issued for documents to be filed by November 2020 with a new hearing date set for 2021" (at [48]). On 30 June 2020, Dr Rickman requested an adjournment of proceedings until 1 March 2021 (at [49]). The anticipated timeframe within which the appellant will, according to Dr Rickman's medical certificates, be able to prosecute the Appeal keeps changing and moving further into the future. None of this "medical evidence" is in a form that can be tested and carries little, if any, weight.
On 22 July 2020 and again on 7 August 2020, the Full Bench invited the appellant to put on medical evidence in support of her claim that she was, for medical and/or psychological reasons, unable to prepare for and prosecute the Appeal. She did not do this. Instead, the appellant filed her seventh motion (at [63]) seeking an order dismissing the respondent's motion and supporting affidavit filed on 17 February 2020 (at [40]) and the respondent's written submissions filed on 19 March 2020 (at [41], [70]).
The only additional "medical evidence" filed by the appellant prior to the hearing of the respondent's motion was a number of WorkCover NSW certificates of capacity, apparently signed by Dr Rickman and, in two instances, also by the appellant herself on 18 August 2020. These certificates of capacity purportedly related to an injury that, on one certificate, occurred on "8/8/20" but, on the other two certificates, occurred on "8/8/2006". None of the certificates contain any information as to the nature of the injury. They relate to the appellant's incapacity for work for the period 23 June to 23 August 2020 and contain a recommendation for training, presumably to be undertaken by the appellant to assist her to return to work (at [58]-[62]).
We harbour serious doubts as to the authenticity of the documents but, regardless of our concerns in that regard, they contain no information relevant to the matter for determination now before Commission, namely the respondent's motion to dismiss the Appeal, and we have decided that they have no probative value in our consideration.
During the first instance proceedings before Chief Commissioner Kite, and since she filed the Appeal, the appellant has consistently complained about difficulties she has had in organising legal representation and about the conduct of her previous legal representatives in giving her bad advice and/or failing to follow her instructions in proceedings in this Commission and elsewhere. These complaints were initially made in proceedings before Commissioner Newall in 2016 and have continued to be made ever since. These are not matters over which this Commission has any control and do not explain or excuse the appellant's failure to prosecute the Appeal with due despatch.
We are of the opinion, based the evidence before the Commission and on the submissions of the parties, that the appellant has failed, without sufficient reason, either medical/psychological or otherwise, to prosecute the Appeal with due despatch since it was filed on 20 April 2018. We propose to make an order along the lines sought by the respondent.
[4]
Order
The Full Bench orders that the Application for Leave to Appeal and Appeal filed in the Office of the Industrial Registrar on 20 April 2018 by Zlata Rous be dismissed for want of due despatch.
Chief Commissioner Constant
Commissioner Murphy
Commissioner Webster
[5]
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Decision last updated: 12 October 2020