Industrial Relations Commission New South Wales Medium Neutral Citation: Bucknell v Commissioner of Police, New South Wales Police Force [2023] NSWIRComm 1047 Hearing dates: 16 May 2023 Date of orders: 16 May 2023 Decision date: 16 May 2023 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 – Notice of Motion seeking orders dismissing the proceedings for want of due despatch - Proceedings dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 61(3)(a) Police Act 1990 (NSW), s 181E Uniform Civil Procedure Rules 2005 (NSW), r 12.7 Cases Cited: Kabir v Department of Family and Community Services (2016) NSWIRComm 1009 Musicka v Health Secretary in respect of New South Wales Ambulance [2022] NSWIRComm 1055 Poore v Commissioner of Police New South Wales Police Force [2022] NSWIRComm 1079 Ward v Secretary of the Department of Education [2022] NSWIRComm 1086 Category: Procedural rulings Parties: Christopher James Bucknell (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Solicitors: Kingston Reid (Respondent) File Number(s): 2022/242120 Publication restriction: Nil EX TEMPORE DECISION (REVISED FROM TRANSCRIPT) 1. On 9 August 2022 Mr Christopher Bucknell filed an application for a review of his removal as a sworn police officer pursuant to s 181E of the Police Act 1990 (NSW). The catalyst for his removal was the failure of Mr Bucknell to comply with a direction of the Commissioner of Police requiring him to be vaccinated against COVID-19. 2. Before the Commission today is a notice of motion filed by the Respondent on 3 May 2023, 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 and any further or other orders that the Commission sees fit, pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) and pursuant to s 61(3)(a) of the Civil Procedure Act 2005 (NSW), on the basis that the Applicant has not prosecuted the proceedings with due despatch. 3. The Applicant was initially represented by the Police Association of New South Wales, including at an unsuccessful conciliation of the matter in late 2022. On 14 February 2023, the Association filed a notice of ceasing to act. In that notice of ceasing to act the Association advised the last known email address of the Applicant. 4. On 14 February 2023, directions were made by Chief Commissioner Constant, to ready the matter for an arbitrated hearing. The directions made on that day included the following; 1. The Applicant to file and serve all evidence and submissions by 4 April 2023; 2. The parties to confer before 4 April 2023 to narrow the issues in dispute as far as possible; 3. The Respondent to file and serve all evidence and submissions by 2 May 2023; and 4. The Applicant to file and serve all evidence and submissions in reply by 16 May 2023. 1. On 23 March 2023, Ms Shanahan, on behalf of the Respondent, wrote to the Applicant in accordance with the directions given by the Chief Commissioner, seeking to narrow the issues in dispute. The Respondent received no reply to this correspondence. 2. On 3 April 2023, Ms Shanahan wrote a second letter to the Applicant seeking to narrow the issues in dispute. The Respondent received no reply to this correspondence. 3. The Applicant failed to file and serve any material by 4 April 2023 contrary to the directions made on 14 February 2023. 4. On 15 April 2023, Ms Connor, an associate employed at the same firm as Ms Shanahan, Kingston Reid, wrote to the Applicant requesting that he confirm by 4pm on 15 April 2023, the status of his matter and the material he was due to file. No response was received to this correspondence. 5. On 18 April 2023, Jia Pan Xiao, a lawyer at Kingston Reid, wrote to the Applicant again seeking an update in relation to the matter. The email also advised that in circumstances where Mr Bucknell remained in default of the orders the Respondent intended to file a notice of motion seeking the application be dismissed for want of due dispatch. No response was received to this correspondence. 6. The application was listed for a compliance check before the Registrar on 26 April 2023. Ms Connor appeared on behalf of the Respondent. Mr Bucknell did not appear. 7. Later that day the Registrar sent an email to Ms Shanahan which read as follows: "Dear Ms Shanahan, Further to the appearance by Ms Connor in today's compliance check for this matter, I have phoned the applicant. There were technical issue(sic) this morning which may have contributed to his non-appearance. He has indicted that we (sic) will be discontinuing this matter. I have asked him to email, copying the respondent into the email. Kind regards, Elizabeth Robinson, Industrial Registrar, Industrial Relations Commission." 1. On 28 April 2023 the Registrar wrote to the Applicant by email, copying in Ms Shanahan, in the following terms: "Dear Mr Bucknell I write further to the conversation on 26 April regarding the compliance hearing before me. You indicated that you will be discontinuing this matter but nothing has been received in the Registry. Please would you indicate your intentions. Kind regards, Elizabeth Robinson, Industrial Registrar, Industrial Relations Commission." 1. As I have already recorded, the Respondent filed its notice of motion on 3 May 2023. On 4 May 2023 I made the following directions, which were communicated to both parties by the Registry by email: 1. The Applicant is to file and serve any evidence upon which he proposes to rely in opposition to the notice of motion filed by the Respondent on 3 May 2023 by no later than 4pm on 10 May 2023. 2. The notice of motion filed by the Respondent on 3 May 2023 is listed before Commissioner McDonald on 16 May 2023 at 11am. 1. The Applicant has not filed or served any evidence in opposition to the notice of motion. 2. When the matter was listed this morning Ms Shanahan appeared on behalf 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 by the Applicant. The Applicant has failed to appear and to otherwise explain his default. 3. I have confirmed with the Registry that details of today's listing were sent to the Applicant via the email address the Police Association had advised was the last known email address for the Applicant. 4. As Commissioner Newall observed in Kabir v Department of Family and 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 r 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 dispatch. 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 Sloan also had regard to s 56 of the Civil Procedure Act in when considering an application for dismissal pursuant to inter alia r 12.7 of the Uniform Civil Procedure Rules in Musicka v Health Secretary in respect of New South Wales 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 produce 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 with a minimum of legal technicality." 1. I have had regard and endorse the remarks of both Commissioner Newall in Kabir and Commissioner Sloan in Musicka, as I did in Ward v Secretary of the Department of Education [2022] NSWIRComm 1086. 2. As I said in Poore v Commissioner of Police New South Wales Police Force [2022] NSWIRComm 1079 at [93]: "Prosecuting proceedings in any court or tribunal is a serious business. It involves the use of significant public resources and seeks the invocation of powers by the court or tribunal which may have a significant impact on other people and entities. Anyone commencing proceedings must prioritise the prosecution of those proceedings to the best their resources and circumstances will allow." 1. It is the case that the Applicant will suffer some prejudice if these proceedings are dismissed. However, as was submitted by Ms Shanahan, such prejudice is entirely outweighed by the prejudice to be suffered by the Respondent in this matter by the ongoing failure of the Applicant to prosecute his proceeding appropriately. The Respondent has expended time and money. The Respondent has acted diligently throughout the matter, following up the Applicant and assisting him as much as possible to prosecute his own application. 2. The Applicant is on notice of the application and yet has failed to appear today to explain his default. The balance of justice clearly lies in these proceedings being dismissed. 3. I am satisfied that the Applicant has failed to comply with his obligations under s 56(3) of the Civil Procedure Act and has failed to prosecute the proceedings with due dispatch. 4. I order that the proceedings be dismissed pursuant to r 12.7(1) of the Uniform Civil Procedure Rules. I also observe that the dismissal would also be justified pursuant to s 61(3)(a) of the Civil Procedure Act. Janet McDonald Commissioner ********** Amendments 18 May 2023 - Email address removed from Paragraphs [3] & [16]. 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: 18 May 2023