Industrial Relations Commission of New South Wales CITATION : Sydney Legacy Appeals Fund v Simpson [2003] NSWIRComm 91 APPELLANT Sydney Legacy Appeals Fund PARTIES : RESPONDENT Kathryn Simpson FILE NUMBER: IRC5993 of 2002 CORAM: Walton J Vice-President; Sams DP; Redman C CATCHWORDS : Appeal - Leave to appeal and appeal - Failure to comply with Commission's directions - Evidence not received - Explanation not considered - Hearing date unaffected - No prejudice - Relevant factors not taken into account - Error in discretionary decision making - Proper exercise of discretion - Whether unreasonable and unjust - Spanish Club v Bounouar considered - Leave to appeal granted - Appeal upheld - Decision set aside - Appellant permitted to rely on evidence. LEGISLATION CITED : Industrial Relations Act 1996 The Spanish Club Limited v Bounouar (1998) 94 IR 173 CASES CITED : House v The King (1936) 55 CLR 499 The State of Queensland and Another v J L Holdings Proprietary Limited (1997) 189 CLR 146 HEARING DATES: 03/28/2003 DATE OF JUDGMENT: 04/09/2003 APPELLANT: Ms K Nomchong of counsel SOLICITORS: Shaw McDonald Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT: Mr J Elder John Elder Consultancy Services JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, VICE PRESIDENT SAMS DP REDMAN C Date: 9 April 2003 Matter No IRC5993 of 2002 SYDNEY LEGACY APPEALS FUND v KATHRYN SIMPSON Application by Sydney Legacy Appeals Fund for leave to appeal and appeal against a decision of Commissioner Tabbaa given on 10 October 2002 in Matter No IRC2619 of 2002 REASONS FOR DECISION OF THE COMMISSION [2003] NSWIRComm 91 1 This is an application for leave to appeal and, if granted, an appeal by Sydney Legacy Appeals Fund ("the appellant") from a decision of Commissioner Tabbaa given on 10 October 2002 where the Commissioner, in what was described as "a decision on threshold issue" refused to allow the appellant to rely on evidence filed and served by it contrary to directions given by the Commissioner. The Commissioner's decision effectively precluded the appellant from calling any witnesses in the proceedings. 2 On 28 March 2003 the Full Bench made the following orders: 1) Leave to appeal is granted. 2) The appeal is upheld. 3) The order made by Commissioner Tabbaa on 10 October 2002 is set aside. 4) The appellant is granted leave to rely, in the proceedings in IRC2619 of 2002, upon the witness statements filed by it on 22 August 2002. 5) The proceedings are remitted to Commissioner Ritchie for hearing. 3 At the time of making these orders we indicated that we would give reasons for decision in due course. We now publish those reasons. 4 Whilst it is not entirely clear from the decision at first instance, we are satisfied that the Commissioner refused to receive the statements of evidence filed by the appellant because it had failed to comply with "amended directions" given by the Commissioner for the filing of the statements of evidence. The Commissioner had originally directed that the appellant would file the statements of evidence by 14 August 2002 (that direction having been given on 19 June 2002). However, the Commissioner subsequently determined to amend that direction so as to require the filing of the statements of evidence by 12 noon, 20 August (which communication was forwarded to the appellant on 19 August 2002). 5 The appellant ultimately filed its statements of evidence on 22 August 2002 approximately two days after the date fixed by the amended directions, eight days after the date originally fixed for the filing of the statements and fifteen days prior to the date set for the hearing of the matter (namely 6 September 2002). 6 The amended direction was issued by the Commissioner upon her returning from leave on the 19 August and after ascertaining that the respondent had not filed its statements of evidence in accordance with her earlier directions. At that point, in accordance with one aspect of the Commissioner's decision, the appellant was advised that the date for the filing of statements of evidence had been varied and that "no further extension would be granted." The Commissioner observed later in her decision and in apparent contradiction to this aspect of her decision that a communication was forwarded to the appellant indicating "once again, that no decision would be made on their acceptance or otherwise until I had heard both parties on the issue." In fact, on the 20 and 21 August the appellant sought an extension of time from the Commissioner but this application was refused in Chambers. 7 On 6 September, the Commissioner heard an application by the respondent to exclude the statements of evidence filed late by the appellant. That date had been fixed for the hearing of the matter but significantly was vacated by the Commission one week earlier than 6 September for reasons extraneous to the conduct of the appellant. In support of its contention that the Commissioner should accept the statements, the appellant relied upon evidence and submissions directed to providing an excuse as to why the statements of evidence were not filed at the due date. 8 The explanation offered by the appellant was that the delay had been caused by a number of factors; firstly, the absence on leave of the appellant's responsible officer who was to be the appellant's principal witness in the proceedings and secondly, that large parts of the appellant's witness statements had been lost when a computer server crashed on 20 August 2002. 9 The Commissioner decided as follows: Pursuant to Rule 179(6) of the Industrial Relations Commission Rules 1996, leave is denied to the respondent to adduce evidence to which the direction given on 19 June 2002 related. 10 We note that an issue was raised by the appellant that the Commissioner had no power to make such a determination under rule 179. It is unnecessary to determine that matter in order to dispose of this appeal. 11 A date was subsequently fixed for the hearing of the matter before Commissioner Tabbaa on 25 October and Commissioner Ritchie on 1 November 2002. Both dates were vacated for reasons, it would seem, unconnected to the appellant. 12 In the result, even though the statements of evidence were filed late, they were filed well in advance of any date which was fixed for the hearing of the matter and, on any view, at a time which gave the respondents to these proceedings ample opportunity to file statements in reply and to prepare for a hearing of the matter. There was a faint suggestion in submissions put by the respondent at first instance that it would suffer prejudice if the statements of evidence were received by the Commissioner but no such contention was seriously pressed before us and nor could it have been, having regard to the circumstances of this matter. 13 In coming to her decision, the Commissioner relied upon the decision of the Full Bench in The Spanish Club Limited v Bounouar (1998) 94 IR 173. In that matter, the Full Bench made the following observations with which we respectfully concur: It is imperative that parties to proceedings before this Commission comply with directions designed to facilitate the efficient and effective determination of matters before the Commission. Absent any proper explanation, any party in default of the direction will run the risk of a sanction imposed by the presiding member of the Commission. 14 That approach requires a member of the Commission to take into account, when considering the default of a party in relation to directions issued by it, any explanation offered by that party. Here the Commissioner acknowledged that the respondent had offered an explanation and accepted that there was a factual basis for it (it should be noted that the respondent raised no contrary contention), but did not determine whether that explanation was sufficient to excuse the appellant's failure to comply with her directions. That represents a failure to take into account a relevant consideration which constitutes an error in discretionary decision making as discussed in House v The King (1936) 55 CLR 499. 15 The appellant submitted that the Commissioner did not consider whether the delay in filing the statements of evidence by the appellant necessitated the abandonment of the hearing date and that that factor was significant to any determination of the application by the respondent to exclude the subject evidence. We agree. We consider that this is another error warranting appellate intervention. It was clearly a relevant consideration which required assessment in the exercise of the Commissioner's discretion. It was a telling factor against the grant of the application. 16 These circumstances constitute of themselves sufficient basis for appellate intervention. The appellant also argued the matter on a wider basis - that there was a fundamental error of principle involved in the Commissioner's decision in exercising her discretion to refuse to accept the statements. It was argued that the decision should be quashed because it was plainly unreasonable and unjust. Having regard to the circumstances under which the discretion was exercised in this matter, we propose to briefly deal with those submissions. 17 The appellant sought to distinguish Spanish Club from this matter having regard to the differences between the factual circumstances in that case and the present matter . We consider that that submission has merit. The decision in Spanish Club was made in circumstances where a party had failed to comply with the Commission's directions, up to, and including the day of hearing and provided no explanation (let alone an acceptable one) for its failure to do so. The defaulting party had then sought to call evidence from witnesses on the day of hearing. The evidence was not admitted. On appeal, the Full Bench held that the Commission's discretion to refuse the admission of the party's evidence was plainly open in the circumstances of the case and in light of the Commission's powers under s162 of the Industrial Relations Act 1996. 18 Thus, the circumstances in Spanish Club are markedly different to those which were revealed in this case. Here, the delay in filing the appellant's witness statements was not significant and an explanation was provided. There had been communication between the parties and the Commission before the date of hearing. Importantly, as referred to earlier, the delay did not cause the abandonment of the hearing date. 19 It must be emphasised that the Full Bench in Spanish Club did not erect some immutable principle that any failure to meet directions issued by the Commission constituted, of itself, a proper basis upon which the Commission may impose a sanction excluding the evidence of the defaulting party. What ultimately is required is the attainment of justice in the circumstances of the case. As was stated by the High Court in The State of Queensland and Another v J L Holdings Proprietary Limited (1997) 189 CLR 146 at 154: Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a Court is the attainment of justice and no principle of case management can be allowed to supplant that aim. 20 We emphasise that, in an appropriate case, a discretion may be exercised to exclude statements of evidence so as to properly manage its procedures, but that discretion should only be exercised justly with a proper balancing of all relevant factors. 21 We confirm our orders. 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.