Scott White v Industrial Relations Secretary in respect of Corrective Services NSW

EX TEMPORE decision

1. 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.
2. 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 …
3. 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.
4. 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]