Ward v Secretary, Department of Education

Industrial Relations Commission (NSW)|2022-10-07

EX TEMPORE DECISION

On 21 September 2022 I made the following directions in chambers: 1. The matter is listed on 7 October 2022 at 10am for the applicant to show cause why the unfair dismissal application should not be dismissed for want of prosecution, pursuant to Uniform Civil Procedure Rule 12.7. 2. At least five days before the show cause hearing the applicant must file and serve an affidavit setting out the reasons why she has not complied with the Commission's directions made 17 May 2022, failing which unless good reason for the failure is demonstrated, the Commission will not consider the applicant's reasons and the matter will likely be dismissed. 3. Any party who wishes the Commission to consider any submissions at the show cause hearing, must put those submissions in writing and file and serve them at least five days before the show cause hearing.
The catalyst for the making of these directions was the repeated failure of the applicant to comply with directions made by the Commission and her failure to appear at a compliance check call over before the registrar on 14 September 2022. It was noted by the registrar at that time, that efforts to contact the applicant had been unsuccessful.
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.
On 23 September 2022, the respondent, the Secretary, Department of Education, filed a notice of motion, supported by an affidavit of the respondent's solicitor, Lucy Shanahan, seeking an order dismissing or otherwise setting aside the unfair dismissal application filed by the applicant on 8 March 2022 and any further or other orders that the Commission sees fit.
Given that the applicant had already been directed by the Commission to show cause why her unfair dismissal application should not be dismissed for want of prosecution, the notice of motion is superfluous. Nevertheless, the supporting affidavit, which was admitted into evidence, has usefully compiled the procedural history of this matter, for which I am grateful. I have also had regard to other aspects of the procedural history of the matter not covered in the affidavit, but which are revealed from the Commission's file.

BACKGROUND

The applicant filed an unfair dismissal application pursuant to s 84 of the Industrial Relations Act on 8 March 2022. The application indicated that the applicant was self-represented.
The matter was first listed for mention before Commissioner Murphy on 21 March 2022. On that day there was no appearance for any party and the matter was listed for mention again on 20 April 2022.
On 13 April 2022 Commissioner Murphy vacated the mention listed for 20 April 2022 and relisted the matter for mention at 9am on 12 May 2022. On 12 May 2022, both parties appeared by telephone, at which time it was determined that the matter should be set down for conciliation on 18 May 2022. The applicant appeared on her own behalf.
The conciliation on 18 May 2022, at which the applicant again appeared without any legal or other representation, was unsuccessful and Commissioner Murphy made the following directions: 1. The applicant to file and serve evidence and submissions by 27 July 2022. 2. The respondent file and serve evidence and submissions by 24 August 2022. 3. The applicant file and serve evidence and submission in reply by 7 September 2022.
On 2 August 2022 the respondent wrote to the applicant to query why no evidence had been filed or served and seeking a timeframe for when such evidence would be filed and served. No response was received to that email. The respondent emailed the applicant again on 22 August 2022 inquiring as to when she would serve the required materials. No response was received to that email.
On 31 August 2022, the respondent wrote to the registrar, with a copy to the applicant, requesting that the matter be listed for directions at the commission's earliest convenience. The respondent emailed the registrar again on 12 September 2022, copying in the applicant, confirming that the respondent had not received any filed materials from the applicant and requesting that the application be listed for a compliance check on 14 September 2022.
The matter was listed for a compliance check on 14 September 2022 before the registrar. On that day the applicant did not appear, and the respondent foreshadowed filing a notice of motion to dismiss the matter.
The matter was allocated to me on 15 September 2022. Upon my review of the matter, I determined that the applicant should be required to show cause why her application should not be dismissed for want of prosecution pursuant to r 12.7 of the Uniform Civil Procedure Rules. The applicant has not filed and served an affidavit setting out the reasons why she has not complied with the Commission's directions, as I had directed her to do. (I note that my direction of 21 September 2022 wrongly referred to directions having been made on 17 May, rather than 18 May, however I do not consider that this minor error vitiates the direction I made.)

TODAY'S LISTING

When the matter was listed this morning, Mr Maroney, solicitor, appeared on behalf of the respondent, instructed by Ms Amin. 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. The respondent read an affidavit affirmed by Ms Amin today, confirming service of the respondent's notice of motion and the affidavit of Lucy Shanahan, by way of having sent the notice of motion and affidavit to the email address noted on the applicant's unfair dismissal application, being, "lookupnsmile@hotmail.com". I note that I have confirmed with the registry that details of today's listing were sent to the applicant via that same email address and that the registry has received communications from the applicant via that email address. The applicant has failed to appear and to otherwise explain her default.
It is perhaps a little ironic that the respondent had also failed to comply with my direction by only lodging submissions yesterday evening in breach of the direction I had made on 21 September 2022. Nevertheless, whilst I have considered those submissions, nothing in those submissions otherwise alters my decision today.

OUTCOME

The applicant has failed to appear and to otherwise explain her default. As Commissioner Newall noted in Kabir v Department of Family & Community Services [2016] NSWIRComm 1009 at [13]: "...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."
Commissioner Sloan also had regard to s 56 of the Civil Procedure Act when considering an application for dismissal pursuant to inter alia rule 12.7 of the Uniform Civil Procedure Rules in Musicka v The Health Secretary in respect of NSW Ambulance [2022] NSWIRComm 1055 where he 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.
I have 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.
As Commissioner Newall noted in Kabir at [15], the fact that the appellant is unrepresented does not excuse her from the operation of the Civil Procedure Act and her obligations under that Act to comply with the orders and directions made by this Commission. I am satisfied the applicant has failed to prosecute the proceedings with due despatch.
I order that the proceedings be dismissed, pursuant to Rule 12.7(1) of the Uniform Civil Procedure Rules.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2022

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