Ward v Secretary, Department of Education [2022] NSWIRComm 1086

Industrial Relations Commission New South Wales Medium Neutral Citation: Ward v Secretary, Department of Education [2022] NSWIRComm 1086 Hearing dates: 7 October 2022 Date of orders: 7 October 2022 Decision date: 07 October 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: The proceedings are dismissed pursuant to r 12.7(1) of the Uniform Civil Procedure Rules Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission —Unfair dismissal – Practice and procedure – Failure of applicant to comply with directions and to appear - Show cause hearing – Notice of Motion - Dismissal of proceedings for failure to prosecute the proceedings with due despatch Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 86(3) Industrial Relations Act 1996 (NSW), ss 3(g), 84, 162(2)(i) Uniform Civil Procedure Rules 2005 (NSW), r 1.5, 1.6, 12.7 Cases Cited: Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1; 92 NSWLR 473 Kabir v Department of Family and Community Services [2016] NSWIRComm 1009 Musicka v Health Secretary in respect of NSW Ambulance [2022] NSWIRComm 1055 Category: Procedural rulings Parties: Katrina Ward (Applicant) Secretary, Department of Education (Respondent) Representation: Plaintiff (In person)

Solicitors: Kingston Reid (Respondent) File Number(s): 2022/00072881 Publication restriction: Nil

EX TEMPORE DECISION 1. 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. 1. 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. 2. 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. 3. 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. 4. 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. 5. This morning Mr Maroney, who appears for the respondent, explained that the respondent had already commenced preparation and filing of the notice of motion before receiving notification of the directions I had made on 21 September 2022 which perhaps explains why the notice of motion was filed in the circumstances.