The respondent has submitted that pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (UCPR) the proceeding should be dismissed for want of due dispatch.
The respondent referred to a decision of a Full Bench of this Commission in Bizuneh v Industrial Relations Secretary (Department of Communities and Justice) [2020] NSWIRComm 1040 (Bizuneh). That decision also referenced s 56 of the Civil Procedure Act 2005 which sets out that the overriding purpose of that Act as:
56 Overriding purpose
(1) The overriding purpose of this Act and 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 …
I should, for completeness, set out r 12.7(1) of the UCPR:
12.7 Dismissal of proceedings etc for want of due despatch
(1) 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.
The parts of the Full Bench decision in Bizuneh to which the respondent took the Commission relevantly begin at [27]:
"27. Rule 12.7 of the UCPR was considered in the matter of Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334 ('Ghosh'). At [40]-[43], McFarlan JA made the following observations about the Court's exercise of discretion pursuant to the rule (with the concurrence of Leeming JA and Adamson JA):
[40] The discretion to dismiss proceedings that UCPR r 12.7 confers if a plaintiff does not proceed with "due despatch" is broad and should not be confined by rigid formulae (Stollznow v Calvert at 751 and Micallef v ICl Australia Operations Pty Ltd (2001) NSWCA 274 at [51] in relation to the comparable power under earlier rules to dismiss for want of prosecution). As Walsh JA said in Witten v Lombard Australia Ltd [1968] 2 NSWLR 529; 88 WN (Pt 1) (NSW) 405:
Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised (at 412).
[41] As the primary judge properly found, relevant delay in this context is not confined to that which is caused by a lack of activity, it extends to a delay arising out of a "want of constructive activity" (see [30] above).
[42] Importantly, the Civil Procedure Act now also adds the overriding purpose of that Act and the rules of court in facilitating "the just, quick and cheap resolution of the real issues in the proceedings" to the matters to be considered (s 56). As well, s 57 includes the "efficient use of available judicial and administrative resources" amongst the objects to which regard is to be had in managing court proceedings, s 59 requires delay to be eliminated so far as possible and s 60 requires the court to take into account the object of "resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute".
[43] These considerations are of fundamental importance in determining an application for the dismissal of proceedings for want of due despatch, as they are to all other aspects of the conduct of civil litigation in this State. The primary judge had appropriate regard to these provisions in arriving at her decision to dismiss the proceedings.
28. In Rous v Department of Education and Communities [2018] NSWIRComm 1017 Chief Commissioner Kite (as he then was) said as follows at [22]-[28]:
[22] The comments of Commissioner Newall in Kabir v Department of Family and Community Services [2016] NSWIRC 1009, have particular resonance in this case. The Commissioner said 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 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 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 Pty 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. It 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
(Emphasis as it appears in Rous)
[23] I agree with the Commissioner's analysis and conclusions.
…
[27] The result is the respondent has incurred costs and inconvenience. There is no sign of that prejudice abating."
[Extracted as set out in Bizuneh]
I adopt those as the principles by which I should be guided.
As the respondent set out, from the beginning of the year at the very least, the applicant has been aware that this proceeding would be conducted in person. As the respondent also set out, at one point the applicant asked for a delay in the initial hearing from May to June so that he could save money in order to bear the expenses to attend in person.
In June the proceedings were adjourned for reasons that were accepted by the Commission as a legitimate reason for delay. At that time, it was again made clear to the applicant that the matter was proceeding in person. There were no further questions from the applicant once it was clear that that was the case. Until last week there was no suggestion by the applicant that the matter should not be conducted in person.
Since the matter was set down, there have been multiple requests by the applicant to adjourn, but these were not made for any reasonable basis. They largely related to tangential issues not within the jurisdiction of this Commission, or matters which should be addressed by the Commission, to the extent that the Commission is able to address them, during the proceedings.
Friday last week the Commission ruled on a last-minute request for the matter to be adjourned or, alternatively, conducted by audio visual link (AVL). It should be observed that the applicant's primary position was that the matter should not proceed at all at this time. Today, the Commission has again rejected a request for an adjournment and for the conduct of the matter by AVL. Those reasons were given separately Friday and today.
As the respondent observed, virtually from the minute the application was filed the applicant sought to challenge the jurisdiction of the Commission to hear the application he had made. The applicant has engaged in an extraordinary volume of correspondence with a range of persons not party to the proceedings and apparently in place of preparing his application for hearing.
It does seem obvious that the respondent's submission, that the applicant has pursued this claim for collateral purposes, is true, at least to the extent that the applicant is pursuing his claim for collateral purposes, in addition to the substance of his claim.
The respondent referred to general case management principles and some of those have been set out in the decision in Bizuneh, which has been set out above. In particular, the respondent referenced an unfair dismissal claim having a need to move to resolution more quickly than most cases because of the employment relationship which may or may not be restored, depending on the outcome of that claim.
The respondent is here today in person in accordance with the orders of the Commission for the conduct of the proceeding. The matter is ready to proceed. All the documents which have been ordered to be filed have been filed.
The applicant is not here. More than being absent, the Commission is aware why the applicant is absent. The applicant is absent because he wanted to conduct the proceedings via AVL. As observed, and it should be repeated, that position was very much a secondary position to not proceeding at all today.
The matter is not proceeding by AVL. The reasons for this are set out in separate ex tempore decisions from Friday last week and earlier today. As set in the reasons from last Friday:
"The applicant has also raised an issue of costs as to his attendance in Sydney. Whilst the Commission has some sympathy for these matters, the hearing of this matter has, as has been referred to earlier, been set down for at least nine and perhaps 12 months in Sydney and the matters raised by the applicant in that regard have never been raised before, and the Commission considers that the interests of justice in having the matter actually brought to a hearing, it is too late in the piece for those to be considerations.
As to the issue of a fire some, the applicant says, some 5 kilometres from his house, it appears to the Commission that this was the third and least of the matters raised. Nothing more was made of it than there is a fire 5 kilometres and, whilst the Commission is sympathetic to the risks that that poses, as far as the evidence before the Commission is available from the Rural Fire Service, that fire is marked as under control.
The Commission notes that in an area such as Mr White lives, the dangers of bushfires are ever present and it is a matter that would, at its highest, could mean that the Commission could never list the matter for perhaps nine months of the year or perhaps even longer.
…
The Commission notes that its conclusion is, which was referred to earlier, it is not possible in the Commission's view that this matter could be conducted by AVL. The issues raised by the parties, the voluminous amount of documents and it is apparent to the Commission that there will be a significant number of legal questions, objections to evidence, raising of complex legal arguments and documents passing between the parties, it is in those circumstances not tenable that the matter be conducted by AVL." [1]
Further reasons are set out in Scott White v Industrial Relations Secretary in respect of Corrective Services NSW (No 2) [2023] NSWIRComm 1100.
The applicant has chosen not to take part in the proceedings in accordance with the decisions and orders of the Commission. It is hard to think of a more obvious failure to conduct the proceeding with due dispatch.
[2]
Order
Accordingly, the application is dismissed pursuant to r 12.7 of the Uniform Civil Procedure Rules for want of due dispatch.
C Muir
Commissioner
[3]
Endnote
Ex Tempore reasons for decision given 6 October 2023, TR74145, pp1-3
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Decision last updated: 11 October 2023
Parties
Applicant/Plaintiff:
Scott White
Respondent/Defendant:
Industrial Relations Secretary in respect of Corrective Services NSW