The Spanish Club Limited v Bounouar, 94 IR 173

Matter No IRC01/8397 Murray Lee Hutchison and Karl Azzi Hairstylists. Application by Murray Lee Hutchison re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2002] NSWIRComm 133

1 This matter was listed for arbitration on 3 June 2002. However, at the outset of the hearing the Commission dismissed the matter for want of prosecution.

3 The applicant, Murray Lee Hutchison, was dismissed on 5 December 2001 from his position as a part time hairdresser, employed by Karl Azzi Hairstylists ("the respondent"). On 17 December 2001 the applicant filed a claim of alleged unfair dismissal, pursuant to section 84 of the Industrial Relations Act, 1996 ("the Act").

4 It is unnecessary for the purposes of this decision to detail the circumstances surrounding the applicant's dismissal. It is sufficient to note that the applicant commenced part time employment on 4 April 2001 and worked a regular twenty-four hours a week. He was dismissed for alleged performance related issues.

5 The applicant failed to attend and was unrepresented at a directions and conciliation conference on 11 February 2002. Mr K Azzi appeared for the respondent. The applicant was contacted by phone and he explained that he was confused as to the date of the listing. However, the Registry records indicate that on 16 January both parties were advised, by telephone and letter of the Appointment for Hearing (Form D).

6 It was obvious that no useful purpose could be achieved by proceeding with conciliation conferences in the absence of the applicant. The matter was adjourned for a week with a warning issued by the Commission that the application risked being dismissed for want of prosecution should the applicant fail to attend on the next occasion.

7 On 18 February 2002, both parties appeared and were unrepresented. After preliminary submissions, the Commission chaired private conferences with the parties. No settlement of the claim could be negotiated. Accordingly, the Commission made a finding of unsuccessful conciliation; see s87 and listed the matter for arbitration on 3 June 2002. In doing so, directions were issued for the filing and service of affidavit material.

8 Prior to adjourning, the Commission emphasised what I had stressed to the parties in private conferences, concerning the importance of complying with the directions of the Commission and the risks associated with a failure to do so. See The Spanish Club Ltd v Bounouar 94 IR 173.

9 Notwithstanding this observation the applicant filed nothing. Furthermore, no contact was made by either party with the Commission to explain or complain as to the failure to comply with directions. In view of these circumstances, it was difficult to imagine how the arbitration could proceed in an efficient and orderly fashion on the date set for hearing. In any event, the failure to comply with the Commission's directions was overshadowed by a more serious threat to the applicant's case.

10 He simply failed to attend the arbitration and offered no explanation for his non-attendance. Following my usual practice of allowing a fifteen-minute misadventure time for an absent party to arrive, phone contact was attempted to be made with the applicant. This proved unsuccessful.

11 Mr Azzi who attended the hearing, appeared to have anticipated that very little was going to happen. After expressing the Commission's disappointment with the sequence of events, which had now resulted in a waste of a day's hearing, Mr Azzi sought to have the application dismissed - presumably for want of prosecution pursuant to Rule 146 of the Industrial Relations Commission Rules, 1996.

12 As at the date of this decision, no contact has been made by the applicant with the Commission; nor has any explanation been provided for his failure to attend the proceedings on the 3 June 2002.

13 The principles to be considered by the Commission in determining whether to dismiss a matter for want of prosecution were helpfully discussed by Peterson J, in Kaprivinjak and others v Body Corporate Services (NSW) Pty Limited, 87 IR 49: The Commission's discretion in this matter is referred to in Pt 19, Withdrawals and Discontinuance, Div 4, Want of Prosecution, of the Commission's rules. Rule 146 and 147 provide: Want of Prosecution 146. Where any party has not done any act required to be done by or under the Act or any other Act or otherwise has not pursued the proceedings with due diligence, a tribunal may: (a) Order that the application be dismissed for want of prosecution; or (b) Fix a definite time for the doing of the act and at the same time order that upon non-compliance the application shall stand dismissed foe want of prosecution or subsequently, in the event of non-compliance, order that it be dismissed; or (c) Make such further or other order as in the circumstances may seem just. Effect of dismissal 147. Subject to any right of appeal, where a tribunal dismisses an application for want of prosecution the applicant shall not claim the same relief in fresh proceedings. The primary objective of the discretion to dismiss a matter under r 146 appears to me to be synonymous with that which arises under Supreme Court Rules (NSW). Mr Rogers made the point that r 147 creates a position different to that under the Supreme Court Rules (NSW) in that a dismissal for want of prosecution in this Commission creates a res judicata in relation to relief sought. There is no such equivalent in the Supreme Court Rules (NSW). However, as Mr Corsaro submitted, in the Supreme Court there is generally no point in seeking to have the matter dismissed for want of prosecution if it is within the limitation period and capable of being recommenced. The point thus is usually taken in minutes in respect of which the limitation period has expired and accordingly the effect is the same: a dismissal is final. In the Supreme Court the leading point of reference in the Authorities is the judgment of Cross J in Calvert v Stollznow (unreported, 1 April 1980, Supreme Court Procedure, Vol 2, pp 8528-8545) affirmed on appeal in Stollznow v Calvert [1980] 2 NSWLR 749. As a result of those judgments the following principles may be expressed: 1. Each case must depend on its own facts, without adherence to rigid formulae. 2. The Court must decide whether or not on balance justice demands that the action should be dismissed. 3. The blamelessness of a plaintiff personally for the delay is a fact relevant to be considered. Any fault of the plaintiff's solicitor should not, as a matter of course, be attributed vicariously to the plaintiff. 4. Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse that has been offered for the delay, and whether any explanation or excuse that has been offered, is credible and satisfactory.

14 While his Honour was there dealing with unfair contract proceedings in the Commission in Court Session under s 275 of the 1991 Act, the relevant rules are identical to those applying under the 1996 Act and are applicable to proceedings in both the Commission and Commission in Court Session.

15 There can be no doubt that the applicant has not pursued these proceedings with due diligence. I have serious doubts as to his bona fides in pursuing his claim. Directions for the preparation of the hearing were ignored and no explanation or excuse offered. He failed to attend the date for hearing and again, offered no explanation or excuse.

16 While the Commission does not find it necessary to rely on the failure of the applicant to comply with directions of the Commission, his failure to do so is indicative of a complete lack of diligence to prosecuting his claim.

17 The circumstances here disclosed are not dissimilar to those I recently considered in Xiu Zhen Lin v Roseville Golf Club Limited [2002] NSWIRComm 81, where the applicant failed to attend arbitration proceedings of a claim of alleged unfair dismissal and offered no explanation for her failure to attend. I said in paragraphs 23-27: This situation is plainly intolerable and creates an untenable position for the respondent. The respondent does not know when, or if, it has a case to answer. In my estimation, these circumstances equate to a failure of the applicant to pursue her application "with due diligence" in accordance with rule 146.

Notwithstanding the force of the respondent's submission on 2 April to dismiss the matter at that time, the Commission exercised it's powers under Rule 146(b) to require the applicant, within 14 days, to file an affidavit with accompanying medical certification of the reason for her non-attendance on 2 April. As stated earlier no affidavit was filed and no further contract has been made with the Commission. In my opinion, the Commission has given the applicant every opportunity to explain her position and pursue her claim. She alone is responsible for the outcome in this case. Before finally determining this matter, it is necessary to observe that dismissing an application for want of prosecution is a most serious matter. The Commission's power to do so should be exercised with considerable care and caution. This is implicit in the authorities to which I have earlier referred. See also Teeling v Steingold and Abel, t/as Steingold Abel Lawyers (unreported, McKenna C, Matter No IRC 4226 of 2000, 15 February 2002) Each case must be decided on its own particular facts and circumstances. However, there will invariably arise a point, in the failure of an applicant to pursue his/her case with due diligence in which the interests of justice, and the efficient and orderly conduct of the Commission's case load, demands that an application be dismissed for want of prosecution. I am satisfied that this is one such case.

18 In my opinion, the balance of justice demands a similar result here. Pursuant to rule 146 of the Industrial Relations Commission Rules, Matter 8392/01 is hereby dismissed for want of prosecution. The proceedings are concluded. PETER SAMS DEPUTY PRESIDENT

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