Tan v City of Parramatta Council [2025] NSWIRComm 1022

There was no appearance by the applicant at the listing today, 9 April 2025.

The matter is listed at 11am on 14 May 2025 in person at Level 10, 10 Smith St, Parramatta.

If there is no appearance by the applicant on 14 May 2025 then the Commission may dismiss the applicant's claim pursuant to rule 12.7 and/or 13.6 of the Uniform Civil Procedure Rules 2005.

1. An email was sent by the Acting Senior Deputy Registrar of the Commission to Mr Tan later that day, to the address listed on the Application and copied to the respondent Council. This email contained the terms of the Direction referred to in [3], informed Mr Tan of the process to withdraw his application if he wished, and recommended that he obtain legal advice.
2. On 13 May 2025, a member of the Commission staff unsuccessfully attempted to contact Mr Tan about today's listing.
3. There has been no appearance by Mr Tan today.
4. When the matter was listed this morning, Mark Deayton, the Workplace Relations Manager for the respondent, appeared on behalf of the respondent with Sarah McAskill, People and Culture Manager of the respondent. There was no appearance for the applicant. The applicant's name was called outside of the hearing room three times, but there was still no appearance for the applicant.
5. During the hearing of this listing Mr Deayton informed me that he had engaged in an email exchange with Mr Tan this week about this listing. A copy of this email exchange was tendered to the Commission. The email exchange included the following:

(1) Monday 12 May 2025 from Mr Deayton to Mr Tan:

Hi Robert,

Your unfair dismissal claim in the NSW Industrial Relations Commission is scheduled for hearing in person this Wednesday. Are you able to confirm that you will be attending, or will you be contacting the Commission to discontinue your claim? The reason I am asking is that we were left waiting last time when you failed to join the teleconference with the Senior Commissioner, so we don't particularly want to go to the court in person on Wednesday if you have no intention of attending - that would obviously be wasting our time as well as the Commission staff.

Regards

Mark Deayton

Dear Mark,

Thank you for your email. I suggest you stay in contact with the commission regarding the matter at this point in time.

Best Regards,

Robert

(3) Wednesday 14 May 2025 from Mr Tan to Mr Deayton:

Morning Mark,

FYI I've had something come up and will not be attending.

Regards,

Robert

1. The respondent has moved the Commission to dismiss the Application pursuant to s 162(2)(h) of the Industrial Relations Act 1996 on the basis that the proceedings are "frivolous and vexatious". The respondent also submitted that Mr Tan was never an employee of the respondent and the Application should be dismissed on that basis.
2. The respondent did not move the Commission to dismiss the Application pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").
3. However, as Commissioner McDonald set out in Ward v Secretary, Department of Education [2022] NSWIRComm 1086 at [3]:

"The Commission has power to make an order pursuant to rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) of its own motion: see s 86 (3) of the Civil Procedure Act 2005 (NSW) and Rules 1.5 and 1.6 of the Uniform Civil Procedure Rules. Section 162(2)(i) of the Industrial Relations Act 1996 (NSW) also provides that the Commission may exercise, on its own initiative, any function exercisable by it on application."

1. The applicant has failed to appear before the Commission twice without explanation other than in the terms of the email to the respondent of this morning, the content of which only having been notified to the Commission by the respondent.
2. As Commissioner Newall noted in Kabir v Department of Family & Community Services [2016] NSWIRComm 1009 at [13] and extracted by Commissioner McDonald in Ward:

"...the provisions of the Civil Procedure Act 2005, particularly s 56 of that Act, bear very much on the exercise of the powers and discretion granted to a court under rule 12.7. This Commission, in particular, is a body of limited resources and parties which approach the Commission seeking relief of any kind within the Commission's powers are obliged to conduct themselves with due despatch. It is not open to parties to luxuriate in the conduct of proceedings in a time and manner which suits them, but does not conform to the Commission's statutory obligations to deal with matters quickly, or indeed conform to directions made by the Commission. If matters are not promptly to be prosecuted, there must be cogent and compelling reasons for that failure presented to the Commission if the tools provided by the UCPR, which must be read in the light of the provisions of the Civil Procedure Act itself, are not to be used to ensure that parties who do conduct themselves with due despatch, are not penalised by parties who do not."

1. Commissioner McDonald also referred to the decision of Commissioner Sloan in Musicka v The Health Secretary in respect of NSW Ambulance [2022] NSWIRComm 1055 in which Commissioner Sloan had regard to s 56 of the Civil Procedure Act 2005 (NSW) when considering an application for dismissal pursuant to, amongst other things, r 12.7 of the UCPR where Commissioner Sloan stated, at [12]:

"In considering the application, I have particular regard to the overriding purpose of the Civil Procedure Act set out in s 56. I will not reproduce the entirety of that provision but note simply that s 56(1) provides that the overriding purpose of the Act and of rules of court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. It is relevant to observe that one of the objects of the Industrial Relations Act, as set out in s 3(g), is to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality."

1. As Commissioner McDonald in Ward, had regard to and endorse the remarks of Commissioner Newall in Kabir, Commissioner Sloan in Musicka and President Walton in Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1; 92 NSWLR 473, I do in this matter.
2. Finally, as Commissioner McDonald did in Ward at [20], I too note Commissioner Newall's finding in Kabir at [15], that the fact that the appellant is unrepresented does not excuse him from the operation of the Civil Procedure Act 2005 (NSW) and his obligations under that Act.
3. I am satisfied the applicant has failed to prosecute the proceedings with due despatch and has provided no proper explanation to the Commission for this failure and it is appropriate to dismiss the Application pursuant to r 12.7(1) of the UCPR.
4. It is therefore unnecessary for me to consider whether Mr Tan was an employee of the respondent. Nor was it necessary for me to consider and determine whether the Application was frivolous and vexatious.

1. I order that the proceedings be dismissed, pursuant to Rule 12.7(1) of the Uniform Civil Procedure Rules.

15 May 2025 - Minor amendments to styles in [4], [12] and [15]-[16], in accordance with Judgement Production Guidelines.