Allan James Smith-Hunt v Secretary, Ministry of Health in respect of Northern New South Wales Local Health District [2022] NSWIRComm 1065

Industrial Relations Commission New South Wales Medium Neutral Citation: Allan James Smith-Hunt v Secretary, Ministry of Health in respect of Northern New South Wales Local Health District [2022] NSWIRComm 1065 Hearing dates: 4 August 2022 Date of orders: 4 August 2022 Decision date: 04 August 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: Application dismissed Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 Category: Procedural rulings Parties: Allan James Smith-Hunt Secretary, Ministry of Health in respect of Northern New South Wales Local Health District Representation: Applicant: No appearance Respondent: Ms E Gruschka File Number(s): 2021/362155 Publication restriction: Nil

ex tempore decision 1. This is an application by Allan Smith-Hunt for a determination pursuant to s 84 of the Industrial Relations Act 1996 that his dismissal by the respondent was unfair. 2. At the time of his dismissal on 1 December 2021 Mr Smith-Hunt was employed as a mental health occupational therapist at the Lismore Base Hospital within the Northern New South Wales Local Health District. Mr Smith-Hunt's application states that he had worked for the Northern New South Wales Local Health District since January 2019. 3. The respondent says that Mr Smith-Hunt was dismissed because he was not vaccinated as required by: 1. Orders made by the Minister for Health and Medical Research and, therefore, could not lawfully perform work for the respondent; and 2. A determination made by the Secretary, Ministry of Health and, therefore, could not be employed by the respondent. 1. Mr Smith-Hunt objected to the vaccination requirements largely because he said he had not been provided with information which he desired in order to make an informed decision. 2. I note that as the Commission only has the originating Application and the Employer's Reply to that Application, the bases of Mr Smith-Hunt's application are necessarily brief and may have been expanded upon had further material been filed in preparation for arbitration. 3. On 25 January 2022 conciliation was attempted by the Commission as currently constituted. Unfortunately, it was not successful. 4. The standard directions preparing the matter for arbitration were made, although a longer than the standard time for each party was allowed, being six weeks for each party. 5. This was based on the applicant being self-represented and the understanding that he may therefore require longer than the standard three weeks to prepare his evidence and outline of submissions. Consideration was also given to the respondent facing a significant number of similar applications, and so the timetable also took account of their workload. 6. On 3 March 2022, approximately a week before the applicant was due to file his evidence and outline of submissions, he wrote to the Registry seeking to, in his words, "adjourn his case". Based on his advice to the Registry "[he] was in the Lismore floods 2022 and the flood water came to the ceiling, destroying everything [he owned]." 7. On that day, and with the consent of the respondent, the Commission issued orders vacating the timetable previously made in its entirety and setting a date five weeks later for a directions hearing. That date being 12 April 2022. 8. On 28 March 2022 Mr Smith-Hunt wrote to the Registry expressing his appreciation for the earlier adjournment of the matter and asking for the hearing on 12 April 2022 to be vacated, referencing his having "been extremely displaced by the [floods] and [having] an unstable living situation …". 9. The Registry responded to Mr Smith-Hunt, advising that the listing would remain but advising Mr Smith-Hunt that the matter was only listed for directions, not hearing. He was notified by the registry that the question of any further adjournment could be addressed at the directions hearing scheduled for 12 April 2022. 10. At the directions on 12 April 2022 standard directions were again issued, albeit again allowing each party six weeks to prepare their evidence rather than the standard three weeks. This was with the agreement of Mr Smith-Hunt. 11. On 19 April 2022 the applicant wrote to the Registry seeking to again adjourn, largely based on his desire to have other cases heard before his matter was arbitrated. The Commission treated his email as an application for vacation of the orders and listed the matter for hearing of the application on 26 April 2022. 12. On 26 April 2022 Mr Smith-Hunt again pressed to have his matter delayed, adding that he had been assisting neighbours recover from the floods and, therefore, did not have the time to progress his application. 13. The Commission as currently constituted gave an ex-tempore decision dismissing Mr Smith-Hunt's request for an adjournment. Neither helping neighbours, nor letting other matters proceed first, was a proper basis to adjourn his matter. The previous timetable was left in place. 14. On 6 May 2022 Mr Smith-Hunt wrote to the Commission stating: "I will neither continue with the case/matter 2021/00362155 Allan James Smith-Hunt v Secretary, Ministry of Health, nor will I withdraw from the case/matter … as per email sent on Tuesday, 19 April 2022 … ." 15. Ms Gruschka submitted today that on 15 and 25 June 2022 the respondent had written to the applicant seeking to establish if he would progress his application. 16. Mr Gruschka submitted that Mr Smith-Hunt had responded to her in similar terms to those he had responded to the Commission with on 6 May 2022; he would neither proceed nor withdraw. 17. When the matter was called on for directions on 26 July 2022 there was no appearance for Mr Smith-Hunt. At that time no material had been filed by the applicant in accordance with the timetable. The Commission determined to ask the Registry to write to Mr Smith-Hunt, asking him to explain his absence and to advise if he intended to proceed with his application. 18. Mr Smith-Hunt responded to the Registry, indicating a position that the Commission was biased in support of the Public Health Orders and stating "I do not consent to administering my trust without my consent to have my case formally dismissed, as I have formally waived that offer through previous emails. I am currently not proceeding, nor will I withdraw … ." 19. Initially Mr Smith-Hunt's basis for a delay was a proper one and was accommodated by the Commission with the consent of the respondent. Since then, however, Mr Smith-Hunt's reasons for delay have become less appropriate and have varied considerably. 20. It is apparent, as Ms Gruschka has submitted, that Mr Smith-Hunt does not intend to prosecute his application and has no proper basis for a continuing delay. 21. It is, as Mr Gruschka submitted, contrary to the interests of a just, quick and efficient resolution of the application that the matter continue to languish. The application has been on foot for eight months and no evidence has as yet been filed in the matter. 22. Mr Smith-Hunt has repeatedly failed to comply with directions set to prepare the application for arbitration. Indeed, he now declares that he will not do so. 23. It is, as Ms Gruschka submitted, an ineffective use of the Commission's time to allow the application to continue. 24. Moreover, it is an injustice to the respondent in terms of cost and time and, importantly, in terms of being able to even respond to Mr Smith-Hunt's case if the matter continues to drag out. 25. I do not consider, as Ms Gruschka submitted, that Mr Smith-Hunt has no prospect of success. But I do not consider his case strong in light of other relevant decisions of this Commission and of the Fair Work Commission in similar matters. I note that the legal tests at the Fair Work Commission are not identical with those in this Commission. 26. Mr Smith-Hunt is in breach of the standard directions made on more than one occasion in this matter and has now indicated he does not intend to prosecute this matter. 27. Pursuant to s 61(3)(a) of the Civil Procedure Act 2005 (NSW) and r 12.7 of the Uniform Civil Procedure Rules 2005 I dismiss the Application. C Muir Commissioner