Industrial Relations Commission New South Wales Medium Neutral Citation: Dickson v Secretary, Ministry of Health in respect of NSW Ambulance [2023] NSWIRComm 1066 Hearing dates: 22 June 2023 Date of orders: 22 June 2023 and 6 July 2023 Decision date: 06 July 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: 1. Dismiss the Respondent's Notice of Motion filed on 15 June 2023. 2. The compliance hearing listed on 28 June 2023 is vacated. 3. The time for the Applicant to file and serve an outline of submissions is extended to 26 June 2023. 4. The time for the Respondent to file and serve written statements, an outline of submissions and any other relevant documentation is extended to 31 July 2023. 5. The time for the Applicant to file and serve any evidence and submissions in reply to the Respondent's documents is extended to 7 August 2023. 6. The hearing on 31 July 2023 and 1 August 2023 is vacated and in lieu thereof the matter is listed for hearing on 16 and 17 August 2023. 7. If the Applicant defaults in compliance with Order 3 or Order 5, the Applicant must file and serve with 24 hours of his default an affidavit setting out why the default has occurred and why his unfair dismissal application should not be dismissed for want of prosecution pursuant to Rule 12.7 of the UCPR. 8. If the Applicant defaults in compliance with Order 7 the proceedings will be dismissed. 9. Liberty to the parties to apply to have the matter relisted on short notice. 10. The parties have leave to file documents by email. 11. The Applicant has leave to rely on his statement filed on 15 June 2023. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal – Failure of applicant to comply with directions - Notice of motion to dismiss the proceedings for failure to prosecute the proceedings with due despatch — Defaults attributable to conduct of Applicant's solicitor — Power to award costs against practitioner pursuant to s 99 of the Civil Procedure Act 2005 —Motion dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), ss 4, 56, 58, 60, 61(3), 99, Sch 1 Industrial Relations Act 1996 (NSW), ss 84, 163(1)(b), 181 Uniform Civil Procedure Rules 2005 (NSW), r 12.7 Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Barbagiannis v Commissioner of Police, NSW Police Force [2022] NSWIRComm 1097 Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1; 92 NSWLR 473 Bouskila v Corrective Services NSW [2019] NSWIRComm 1061 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Hoser v Hartcher [1999] NSWSC 527 Kabir v Department of Family & Community Services [2016] NSWIRComm 1009 Moses v Ratner (No 2) [2021] NSWSC 960 Musicka v The Health Secretary in respect of NSW Ambulance [2022] NSWIRComm 1055 Poore v Commissioner of Police, NSW Police Force [2022] NSWIRComm 1079 Category: Procedural rulings Parties: Callum Dickson (Applicant) Secretary, Ministry of Health in respect of NSW Ambulance Representation: B Kernick, Solicitor (Applicant) S Moten, Solicitor (Respondent) Solicitors: Kernick Law (Applicant) Lander & Rogers (Respondent) File Number(s): 2023/00091123 Publication restriction: Nil DECISION 1. On Thursday, 22 June 2023 I heard a notice of motion filed by the Respondent, the Secretary of the Ministry of Health in respect of NSW Ambulance, seeking an order that the Applicant's unfair dismissal claim be dismissed as a result of the Applicant failing to prosecute the proceeding with due despatch in accordance with rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW). 2. The notice of motion was supported by an affidavit sworn by the Respondent's solicitor, Gemma Weller, on 15 June 2023. That affidavit was read by the Respondent without objection. 3. The Applicant relied upon an affidavit sworn by his solicitor, Brad Kernick, on 21 June 2023. That affidavit was filed in court and read, without objection. 4. After hearing from the parties, I dismissed the motion and made various orders to ameliorate the prejudice suffered by the Respondent due to the Applicant's failure to file his evidence and submissions in accordance with the Commission's directions, including vacation and re-scheduling of the proposed hearing dates. I advised the parties that I would deliver my reasons for dismissing the Respondent's motion as soon as possible thereafter. These are my reasons. Background 1. The Applicant filed an unfair dismissal application pursuant to s 84 of the Industrial Relations Act 1996 (NSW) on 20 March 2023. At that time, the Applicant was represented by the Health Services Union NSW (HSU). The Applicant had been dismissed after he was found to have engaged in misconduct which included making an offensive statement to a female colleague of a sexual nature. 2. The matter came before me on 29 March 2023 for conciliation, at which time the Applicant was represented by an industrial officer employed by the HSU. The matter failed to resolve, and I made directions for the matter to be prepared for hearing. 3. Pursuant to my orders made on 29 March 2023, the Applicant was to file and serve all written statements to be relied on for each witness, an outline of submissions and any other relevant documentation by 4:00pm on 19 April 2023. No material was filed by this date. 4. On 26 April 2023 the Respondent requested that the matter be listed for directions in light of the Applicant's non-compliance with the timetable. I listed the matter for directions before me on 1 May 2023. 5. On 28 April 2023 the HSU emailed the Commission to advise that the Applicant was in the process of changing his representation and to request that the matter be listed for directions on either 4 or 5 May 2023 instead, to enable the Applicant time to arrange alternate representation. 6. The reason why the Applicant changed representation was not fully explained in the evidence before me, however I infer from Mr Kernick's evidence and accept, that the HSU was no longer prepared to act for him for reasons which were not within the Applicant's control. 7. I agreed to reschedule the directions hearing to 4 May 2023. On that day Mr Kernick appeared for the Applicant and I made orders, inter alia, requiring the Applicant to file and serve all written statements to be relied on for each witness, an outline of submissions and any other relevant documentation by 4:00pm on 18 May 2023. I also set the matter down for hearing on 31 July 2023 and 1 August 2023. Mr Kernick did not oppose these orders. 8. No material was filed or served by the Applicant on 18 May 2023. 9. On 22 May 2023 the solicitor for the Respondent emailed Mr Kernick inquiring when the Applicant's evidence would be served. Mr Kernick replied at 12:43pm that same day as follows: Hi Gemma I will have that served today. This evening at the latest. I can confirm that there is only evidence from my client which I don't anticipate will be any different to what has already been provided in proceedings up until now. Regards, Brad Kernick 1. I pause to observe that at this point no evidence had "been provided in [the] proceedings", although some documents had been attached to the originating application and the employer's response. 2. No material was filed or served on 22 May 2023, or on the following day. On 24 May 2023 at 9:52am the solicitor for the Respondent sent an email to Mr Kernick requesting he "confirm when the evidence will be served". At 10:03am Mr Kernick replied: Good morning Gemma I apologise for the significant delay. I have away (sic) with illness, however have been able to complete my clients (sic) documents. I will have it served on you today. Regards, Brad Kernick 1. No material was filed or served on 24 May 2023. 2. On 29 May 2023 at 12:05am Mr Kernick sent an email to the Respondent's solicitors as follows: Dear Colleagues I refer to the above matter. I note that my clients' (sic) evidence is now well past the Directions of the Commissioner and don't anticipate that he will be in a position to file until at least the end of the end (sic). To this extent, I would like to seek an adjournment and would like to hear your opinions on same if you wish. The reasons for the application are this: ● Mr Dickson was supported the HSU (sic) up until he elected to appeal the IRC (sic). I am instructed that upon filing the file and seeking further assistance form (sic) the HSU he was promptly told that they would not assist as two thirds of its member (sic) are female. This obviously left Mr Dickson in some dilemma; ● I am located on the Central Coast of NSW and my client is in Tamworth. Whilst it is acceptable for a vast amount of work to be conducted remotely, there is a need for face-to-face et cetera; and ● To ensure that the matter is prepared for the Hearing, I need to canvass any possible witness and/or evidence which may be available to my client, something that has been unable to be done as yet. Should you wish to discuss, lease (sic) contact me direct on [phone number]. Regards, Brad Kernick 1. The Respondent's solicitor replied to Mr Kernick by email sent at 3:13pm on Monday 29 May 2023, advising that the Respondent did not consent to an adjournment and setting out the history of the matter. The Respondent's solicitor then indicated that the Respondent would consent to "one last amendment of the timetable" and set out a proposed amended timetable which required the Applicant to file his evidence by 2 June 2023. The email concluded as follows: If there is a delay in filing evidence by 2 June 2023, we will seek to have the proceedings dismissed given the Applicant has not prosecute the proceedings with due dispatch (rule 12.7 UCPR). We otherwise invite your client to withdraw his application and we will not press the costs in the event he does so. Regards Gemma Weller 1. Mr Kernick responded immediately as follows: Dear Gemma Thank you for your reply. I understand the position of your client and am most grateful for the extension. Regards Brad Kernick 1. At 3:34pm on 29 May 2023 Ms Weller emailed Mr Kernick as follows: Dear Mr Kernick If you intend to write to the Commission seeking the amended timetable we have outlined below, please copy us in to any correspondence. Regards Gemma Weller 1. Mr Kernick did not write to the Commission and the timetable I had made on 4 May 2023 was not formally varied. 2. The Applicant's material was not filed and served by 2 June 2023. 3. On Monday 5 June 2023 Mr Kernick emailed the solicitor for the Respondent as follows: Good morning Gemma Again I thank you for allowing me to file my clients (sic) statement late. I was struck down with COVID Friday and as such, it was not filed. It is complete and will be done so shortly. Unfortunately I have been unwell. I shall write to the commission and explain/advise accordingly. Regards Brad Kernick 1. Over a week later, on Tuesday,13 June 2023, Mr Kernick wrote to the Registrar "seeking leave/permission to file and serve out of time and to file electronically" as his office is located outside the Sydney metropolitan area. Mr Kernick's email was referred to me and I indicated to the parties that if the Respondent was amenable to an extension, the parties should provide a proposed revised timetable. 2. Late on 13 June 2023 the solicitor for the Respondent wrote to Mr Kernick with a proposed amended timetable. This email particularised the prejudice that the Respondent asserted she would suffer as a result of the Applicant's significant delay, and again put the Applicant on notice that a failure to file evidence by the required time, would result in the Respondent seeking to have the proceedings dismissed. 3. The solicitor for the Respondent received no reply to this email. 4. On 14 June 2023 at 9:33am, the solicitor for the Respondent sent an email to the Registry, with a copy to Mr Kernick, outlining the history of the matter, the Respondent's failure to comply with the various timetables and the prejudice being suffered by the Respondent. The solicitor for the Respondent advised that the Respondent agreed to a final variation of the timetable, which required the Applicant to file his evidence by 4pm that day, failing which the Respondent may seek to have the proceeding dismissed on the basis that the Applicant had failed to prosecute the proceedings with due despatch. 5. At 10:24am on 14 June 2023 Mr Kernick sent an email to the Registry, with a copy to the solicitor for the Respondent, which stated: "My clients (sic) material will be filed and served today. However, noting that my office is in Wyong. I ask that leave is granted for me to file electronically." 6. Following receipt of the correspondence from the parties on 14 June 2023 I made the following orders: 1. The time for the applicant to file and serve written statements, an outline of submissions and any other relevant documentation is extended to 9.30am on 15 June 2023. 2. The applicant has leave to file the material referred to in Order 1 by email. 3. The applicant will not be permitted to rely on any material filed and served in contravention of order 1, without leave of the Commission. 4. The time for the respondent to file and serve written statements, an outline of submissions and any other relevant documentation is extended to 4pm on 17 July 2023. 5. The time for the applicant to file and serve any evidence and submissions in reply to the respondent's documents is extended to 4pm on 24 July 2033. 6. A compliance hearing is to be heard on a date to be determined by the Registrar. 7. The hearing on 31 July 2023 and 1 August 2023 is confirmed. 1. The Applicant filed a statement made by him on 8 June 2023, at 12:54pm on 15 June 2023, almost three and half hours after the stipulated deadline. Contrary to the direction I had made, an outline of submissions was not served. The Applicant did not and has not, applied for leave to be permitted to rely material filed and served after 9:30am on 15 June 2023. 2. Later in the afternoon of 15 June 2023, the Respondent filed her notice of motion and affidavit in support. The Reasons for the Delay and the Prejudice to the Respondent 1. Ms Weller's affidavit outlined the above history of the matter. That history revealed that the Applicant had failed to comply with a single direction given by the Commission. It also revealed that the Applicant's solicitor had made representations to the Respondent's solicitors regarding the state of preparation of the Applicant's evidence which, at best, he had no reasonable basis to make. While it seems the Applicant's solicitor was impeded twice by sickness within a short space of time, he failed to deal with this development in an appropriate or timely way. 2. The generally unsatisfactory manner in which the Applicant's solicitor corresponded with the Respondent's solicitors regarding the ongoing defaults suggested to me that the fault lay not with the Applicant himself, but with his solicitor, Mr Kernick. Mr Kernick's affidavit served to fortify that view, although not because he unequivocally said so. 3. Mr Kernick's affidavit was poorly constructed and contained a number of paragraphs which were in the nature of submissions rather than evidence. Most significantly however, it failed to appropriately or adequately address the primary issue it should have, namely the reason or reasons for the Applicant's default. The only parts of Mr Kernick's affidavit which addressed the reasons for the delays read as follows: … 4. On or about 28 April 2023, I was contacted by the Applicant via text message, seeking representation. 5. When I became aware of the type of application, I inquired as to whether his union would be representing him, namely the Health Services Union. 6. The applicant said words the effect of, "No. I asked them for representation and I was told that two thirds of its members were female and given the nature of my matter, they could not represent me." 7. The applicant was referred to me by a colleague of his and when I initially spoke to him, he expressed his frustrations and desperation at obtaining legal assistance. 8. I subsequently appeared at the call over on 4 May 2023, where directions were made for the filing and serving of material. 9. It is conceded that the directions were not met and I was contacted by the Respondent on 22 May 2023 seeking confirmation of when they could expect service. (Respondents annexure 'E'). 10. It was anticipated that the Applicants (sic) evidence would be filed that evening. 11. Subsequent issues outside of the Applicants (sic), including competing demands, illness and other matters, resulted in the Applicants (sic) material being filed and served late. …. 13. (6) I deny that the applicant has failed to prosecute his application. Whilst I am not able to elaborate about matters prior to myself becoming instructed, I can confirm that the delay has not been through any fault of the applicant, but from circumstances which, are outside his control. As such, I submit that he has not caused the delay. … 19. The Applicant respectfully submits that given the delays were not due to his fault, rather, they (sic) were circumstances outside of his control and the issue at hand, noting the length of employment, prior good character, extensive service, and commitment as well as an (sic) extremely valued asset and member of the community, the application should be heard and allowed to proceed on its merit. 1. I had the following exchange with Mr Kernick regarding paragraph 11 of his affidavit: COMMISSIONER: So, all of these things you refer to, "competing demands, illness and other matters," they're all your things? KERNICK: Yes, all my things. With regards to the illness, the reason why I was suppose kept silent in the affidavit is, I'm a former paramedic myself, suffering from significant PTSD, and unfortunately, for whatever reason, this brought back some issue with regards to that. So, there was a period of time where I just went silent, for want of a better term, so, that's essentially how I came to be here. My client was referred by a colleague. I mean, I've been out of that service since 2008 but nonetheless that's the explanation for the illness, for obvious reasons. That's why it was stated in the affidavit and I do apologise for that, certainly wasn't any intent, was no intent to mislead… 1. Further discussions with Mr Kernick ensued, which established that while part of the delay was due to Mr Kernick catching COVID-19, part was due to his inability to do the work required due to him suffering PTSD. In the circumstances I was concerned to ensure that the Applicant was aware of the motion. In relation to that I had the following exchange with Mr Kernick: COMMISSIONER: Does your client know about today's notice of motion? KERNICK: He does, I've explained everything to him and I've explained to him - he's obviously extremely anxious and my words to him, and I'm pretty much blunt and straight to most people, I've got to fall on my sword and that's exactly what I'll say to the Commission is I have to fall on my sword, it's through no fault of my client's. COMMISSIONER: Okay anything‑‑ KERNICK: It is a - yeah, admittedly it doesn't instil a great deal of confidence in him, but, I've explained my past to him, I've never met him prior to these proceedings, so, he obviously knows my history and that's - that's how he came - stumbled across me. So, yes, he is fully aware of today's proceedings. He was going to fly down today, such is the seriousness that he took it. 1. Plainly it would have been far preferable for Mr Kernick to have clearly explained in his affidavit that the delays were solely due to his own circumstances and were not attributable to his client. Providing 'evidence' from the bar table is entirely unsatisfactory, not least because it denies the other party the opportunity to test the asserted facts by way of cross examination. This was a point forcefully and properly made by the solicitor for the Respondent. However, in circumstances where s 163(1)(b) of the Industrial Relations Act provides that the Commission is not bound by the rules of evidence and may inform itself on any matter in any way it considers to be just and, in particular, where Mr Kernick is a solicitor and has a paramount duty to the court and to be honest in all his dealings in the course of legal practice, I am prepared to accept that as and from 4 May 2023, the failure to comply with the Commission's directions were not the fault of the Applicant. This is a significant factor against granting the relief sought by the Respondent. 2. I also accept that the failure of the Applicant to comply with the initial direction made on 29 March 2023 was due to the HSU ceasing to represent the Applicant in or around late April 2023 and the Applicant having to find alternative representation. This development was not of the Applicant's own making and is a factor against granting the relief sought by the Respondent. 3. Ms Weller gave evidence, based on information she had received from her instructor employed by the Respondent, that the proceeding is causing upset and stress for four of the Respondent's witnesses who all reside in Tamworth where the Applicant resides, including the employee who was the subject of the alleged comment which was one of the reasons for the Applicant's dismissal. The solicitor for the Respondent submitted that their stress and anxiety was being exacerbated by not knowing what is happening with the proceeding. I accept this is a factor in favour of dismissing the proceedings. 4. In the Respondent's solicitors' correspondence to Mr Kernick and to the Registry, reference was made to the fact that the key instructor for the Respondent would be on leave from 22 June 2023 to 10 July 2023. As explained in the correspondence, this would not have been an issue if the original orders had been complied with but will now present a significant issue in finalising the Respondent's evidence and submissions prior to the hearing dates of 31 July and 1 August 2023. This is also a factor in favour of dismissing the proceedings. 5. The Respondent submitted that she was prejudiced by not having equivalent time as the Applicant to prepare her case in circumstances where she anticipates having five witnesses. While I accept that the Respondent should be permitted sufficient time to prepare responsive evidence, the preparation of evidence can and should commence before receipt of the Applicant's material. Moreover, this discrepancy can be addressed by a further adjustment to the timetable. 6. Lastly, the Respondent submitted that she had "incurred unnecessary costs in managing the Applicant's failure to comply with three sets of orders." While there was no evidence of those costs, I accept that unnecessary costs have been incurred. This is a matter to which I will return. Relevant Principles 1. Prior to the introduction of the Civil Procedure Act 2005 (NSW), the power to dismiss proceedings for want of prosecution would only be exercised where there had been intentional and contumelious default or where there had been inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible or of serious prejudice to the defendant. However, as Ward JA (as her Honour the President then was), explained in Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [102] (Emmett and Gleeson JJA agreeing) the introduction of ss 56-60 of the Civil Procedure Act modified this statement of principle. 2. Now, as Commissioner Newall noted in Kabir v Department of Family & Community Services [2016] NSWIRComm 1009 at [13] (with emphasis added): "...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." 1. Commissioner Sloan also had regard to s 56 of the Civil Procedure Act when considering an application for dismissal pursuant to rule 12.7 of the Uniform Civil Procedure Rules and s 61(3) of the Civil Procedure Act 2005 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. 1. As Ward JA explained in Dank at [103]: The authorities make clear that what is involved in the exercise of the power under rule 12.7 is a balancing exercise, in the course of which a variety of factors may be considered (see, for example, Hoser v Hartcher [1999] NSWSC 527). 1. Simpson J (as her Honour then was), set out in Hoser v Hartcher [1999] NSWSC 527 at [19] – [30], a non-exhaustive list of the principles relevant to the exercise of the discretion to strike out for want of prosecution. The decision pre-dated the introduction of the Civil Procedure Act so some of the factors identified by her Honour are either no longer relevant or are of less significance. Factors which remain relevant include: 1. any explanation offered by the plaintiff for the delay in proceeding must be considered - the plaintiff's personal responsibility for the delay is an important factor, as is any explanation provided for the delay; 2. personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant; 3. the onus lies on the defendant to establish any prejudice upon which reliance is placed; 4. prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; and 5. the plaintiff's prospects of success. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent significant prejudice to the defendant) it is less likely that justice will be done by striking the action out. 1. Personal blamelessness on the part of the Applicant is a significant factor in the present matter. In Moses v Ratner (No 2) [2021] NSWSC 960 Cavanagh J accepted, at [34] and [44], that the defendant's solicitor has been solely responsible for the delays and consequently refused an application to strike out the defendant's defence in accordance with r 12.7 of the UCPR. 2. Walton J, President of the Industrial Court of New South Wales (as his Honour then was), confirmed in Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1; 92 NSWLR 473 at [108] that the exercise of the power under r 12.7 is a "balancing exercise in the course of which a variety of factors may be considered including those in Hoser v Hartcher" and that the "ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed". His Honour also confirmed, at [110], that the "discretion must be exercised having regard to the requirements of ss 56 to 60 of the [Civil Procedure] Act". 3. It is clear that in exercising the power under r 12.7 of the UCPR or the power under s 61(3)(a) of Civil Procedure Act, the Commission must seek to act in accordance with the dictates of justice: s 58(1) of the Civil Procedure Act. Section 58(2) provides as follows: For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3); (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings; (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction (vii) such other matters as the court considers relevant in the circumstances of the case. 1. Commissioner Stanton in Bouskila v Corrective Services NSW [2019] NSWIRComm 1061 at [164] stated that "considerations raised under ss 56-60 of the Civil Procedure Act are critical to the determination of an application for the dismissal of proceedings for want of due despatch and non compliance with directions." After setting out the objectives of case management provided for in s 57, Commissioner Stanton said, at [162] – [163]: The legislative intention of s 57 is both clear and unequivocal and it specifically directs the litigating parties to the objectives of effective case management which requires all proceedings to be managed having regard to their efficient disposal and the efficient use of available judicial and administrative resources. Critically, s 57(1)(d) of the Civil Procedure Act suggests the objects of case management extend to the needs and interests all parties of the relevant court and not simply those parties conducting the proceedings in question. Section 59 requires that any delay to be eliminated so far as possible. Section 60 also requires a court to consider proportionality of costs. 1. At [186] Commissioner Stanton noted that he had given consideration to the decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, "where the significance of delay, not only for particular proceedings, but for the Court system generally is recognised." 2. Pursuant to s 58(1)(a), the Commission will also have regard to the dictates of justice when considering whether to grant an application for leave to rely on written statements and other documentation filed and served later than the time specified by the Commission. Thus, the factors which the Commission will consider when determining whether to dismiss a proceeding for want of due despatch will be similar, if not the very same, as the factors which the Commission will consider when determining whether to grant leave to a party to be permitted to rely on late- filed and served material. Consideration 1. I am satisfied on the evidence that the Applicant has failed to prosecute the proceedings with due despatch. 2. However, in determining the dictates of justice in this particular case I am, pursuant to s 58(2)(b)(iii) of the Civil Procedure Act, to have regard to whether any lack of expedition has arisen from circumstances beyond the control of the party. As I have already explained, I am satisfied that the Applicant himself has not been the cause of the defaults. This being the case, the prejudice to the Respondent would need to be considerable to outweigh the prejudice the Applicant will suffer if his claim were to be dismissed, due to no fault of his own. 3. With the exception of ongoing stress to the various witnesses to be called by the Respondent, the possible diminution in the quality of evidence and the incurring of unnecessary costs, all of which is highly regrettable, the prejudice to be suffered by the Respondent may be remedied by changing the dates of the hearing and adjusting the timetable accordingly. This of course affects not only the Respondent, but the Commission itself and all the other litigants who seek relief from the Commission. However, ultimately the delay experienced in this matter has been relatively short. 4. While the Applicant had failed to file and serve evidence on four occasions in breach of three sets of orders and failed to honour three additional commitments made to the Respondent's solicitors, the period of the breach is just under two months and has been explained, albeit in an unsatisfactory fashion. This compares to a four-month delay in Poore v Commissioner of Police, NSW Police Force [2022] NSWIRComm 1079 which was wholly unexplained. The delay in Musicka v Health Secretary in respect of NSW Ambulance [2022] NSWIRComm 1055 was also around two months, however it was compounded by failures by the applicant to appear when the matter was listed and to respond to correspondence sent by the Registry. 5. The Respondent referred me to my decision in Barbagiannis v Commissioner of Police, NSW Police Force [2022] NSWIRComm 1097 although this was an application by the applicant to rely upon late filed and served material. I refused the application in circumstances where, although the delay was short, the applicant had failed to provide any explanation for failing to comply with the Commission's directions, even in circumstances where I had made a direction permitting the applicant to put on any submissions and evidence in support of his application. The respondent's solicitor submitted that the applicant's representative in that case, as in this case, appeared to be "pretty unsatisfactory". That is a fair observation. The difference between that case and this one however, is that the representative did not put on any evidence or otherwise submit, that he was the cause of the delay. 6. In the present matter I consider that the prejudice that the Applicant will suffer by a dismissal of the proceedings, through the loss of the ability to obtain the relief he seeks, in circumstances where he was not personally responsible for the defaults and delays and where the delay has been relatively short, outweighs the irremediable prejudice to the Respondent, being the unnecessary costs she had incurred, the ongoing stress and anxiety of the Respondent's witnesses and potentially, the diminution in the quality of evidence. This is not a case where it could be said that the Applicant, personally, in contradistinction to the Applicant in Poore or in Kabir, where the matter was still unresolved two years after it had been commenced, has luxuriated in the conduct of the proceeding to suit himself. 7. In the circumstances I made the following orders at the conclusion of the hearing on 22 June 2023: 1. Dismiss the Respondent's Notice of Motion filed on 15 June 2023. 2. The compliance hearing listed on 28 June 2023 is vacated. 3. The time for the Applicant to file and serve an outline of submissions is extended to 26 June 2023. 4. The time for the Respondent to file and serve written statements, an outline of submissions and any other relevant documentation is extended to 31 July 2023. 5. The time for the Applicant to file and serve any evidence and submissions in reply to the Respondent's documents is extended to 7 August 2023. 6. The hearing on 31 July 2023 and 1 August 2023 is vacated and in lieu thereof the matter is listed for hearing on 16 and 17 August 2023. 7. If the Applicant defaults in compliance with Order 3 or Order 5, the Applicant must file and serve with 24 hours of his default an affidavit setting out why the default has occurred and why his unfair dismissal application should not be dismissed for want of prosecution pursuant to Rule 12.7 of the UCPR. 8. If the Applicant defaults in compliance with Order 7 the proceedings will be dismissed. 9. Liberty to the parties to apply to have the matter relisted on short notice. 10. The parties have leave to file documents by email. 1. In the course of preparing these reasons I realised that I omitted to grant leave to the Applicant to rely on the statement he filed on 15 June 2023. Such leave is necessary due to Order 3 made on 14 June 2023. Mr Kernick did not formally make an application for leave. When asked about why he filed the Applicant's statement over three hours after the stipulated deadline he submitted: That's merely - simply that's my error - simply through no fault of my client whatsoever. I do apologise, Commissioner, to my friend so, when I read the orders, I stopped reading when I saw the date. It wasn't until the following day that I actually saw the 9.30am. So, given those circumstances there, it's certainly through no fault of my client. It was certainly ready to go on 14th, the day before, but I had several court appearances on that date of 15th and then when I reviewed - when I was going to file it - again it was my error that I assumed, and one should never assume, that it was a 4pm - I thought that I had the time and obviously the panic had set in once I saw the 9.30am. So, on that basis, it's extremely prejudicial to my client, should that be rejected or not be allowed to be relied upon. Again, certainly through no fault of his own. 1. It is more than regrettable that none of this information had found its way into Mr Kernick's affidavit of 21 June 2023. Nevertheless, for the reasons I have already discussed, I agree with Mr Kernick that it would be unacceptably prejudicial to the Applicant if leave were not granted to allow the Applicant to rely on his statement filed on 15 June 2023. Accordingly, I make the following further order: 1. The Applicant has leave to rely on his statement filed on 15 June 2023. 1. There is final observation I wish to make. As I said to Ms Moton at the conclusion of the hearing of the motion, the motion was properly brought. The Applicant has failed to prosecute the proceeding with due despatch. As it has transpired, the reason for that lies squarely at the feet of the Applicant's solicitor. 2. In the circumstances I gave some consideration as to whether I had the ability to require Mr Kernick to show cause why I should not make an order pursuant to s 99(2)(c) of the Civil Procedure Act, requiring him to indemnify the Respondent against the costs she has incurred as a result of his conduct. 3. Prima facie, s 99 of the Civil Procedure Act applies to this Commission: Civil Procedure Act, s 4(1), Schedule 1. So far as I am aware s 99 has never been utilised by this Commission, to make a legal practitioner liable for unnecessary or wasted costs where such costs have been caused by the practitioner. This is likely because of the terms of s181(2) of the Industrial Relations Act, which provides that the Commission may award costs only in four types of cases. Unnecessary or wasted costs occasioned by a legal practitioner are not listed in s 181(2). However, s 181(1), which gives the Commission power to award costs, is expressed to be subject to "the rules of the Commission and any Act or law". It may well be arguable that the Commission does have the power to make costs orders against legal practitioners pursuant to s 99. Nevertheless, given the lack of precedent and in the absence of any application by the Respondent, I have determined not to require the Applicant's solicitor to show cause as to why a costs order pursuant to s 99(2)(c) should not be made against him. Janet McDonald Commissioner ********** 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: 06 July 2023