Industrial Relations Commission of New South Wales CITATION : Dubow v Attorney General's Department of New South Wales [2004] NSWIRComm 237 APPLICANT Yolande Dubow PARTIES : RESPONDENT Attorney General's Department of New South Wales FILE NUMBER: IRC 5207 of 2003 & 1588 of 2004 CORAM: Boland J CATCHWORDS : Unfair Dismissal - Threatened dismissal - Notice of Motion seeking default judgment and punitive costs - Late filing of evidence - No costs - Motion dismissed LEGISLATION CITED : Industrial Relations Act 1996 Nagle (T/as W D and J L Nagle & Sons) v Tilburg & Anor (1993) 51 IR 8 CASES CITED : Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 Yolande Dubow v Attorney General's Department of New South Wales [2004] NSWIRComm 84 HEARING DATES: 08/11/2004 EXTEMPORE JUDGMENT DATE : 08/18/2004 APPLICANT In Person LEGAL REPRESENTATIVES: RESPONDENT Mr S Benson of counsel Solicitor: Mr G de Courcey Crown Solicitor's Office JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J Wednesday 18 August 2004 Matter No IRC 5207 of 2003 and 1588 of 2004 YOLANDE DUBOW v ATTORNEY GENERAL'S DEPARTMENT OF NEW SOUTH WALES Applications under section 84 of the Industrial Relations Act 1984 INTERLOCUTORY DECISION (No 2) [2004] NSWIRComm 237 1 Yolande Dubow has applications before the Commission seeking relief in relation to two alleged episodes of threatened dismissal. As to the first application, the background is set out in my earlier interlocutory decision in Yolande Dubow v Attorney General's Department of New South Wales [2004] NSWIRComm 84 given on 6 April 2004. It may be seen Ms Dubow is alleging that she was threatened with dismissal on 3 September 2003 for "having a pink dress, speaking to the media and joking with a colleague which joke he did not object to" and that the threat remained alive. 2 As to the second application, it was filed with the Registry on 24 March 2004 and alleged that at a meeting with the applicant on 5 March 2004 the chief executive officer and principal registrar of the Supreme Court of New South Wales, Megan Greenwood, conducted herself in such a manner as to constitute a further threat to the applicant that she would be dismissed from her employment with the Attorney General's Department. The respondent strongly denies the allegations. 3 The two applications came before me for the purpose of conducting conciliation on 31 March, 13 April, 19 April, 18 May and 3 June. On 11 June 2004 it became apparent that the matters could not be resolved by conciliation and directions were made for the filing of evidence in preparation for a hearing on 14 September 2004. 4 On 19 July 2004 Ms Dubow filed a notice of motion seeking two orders: 1 Default judgment in matters number 5207 of 2003 and 1558 of 2004 2 Punitive costs. 5 The grounds in support of the motion were essentially that the respondent had failed to comply with the Commission's directions relating to the timetable for filing of evidence in the substantive proceedings and that the material that had been filed did not "contain any defence material whatsoever." It was contended that in the absence of any evidence of a defence and without leave the affidavit material filed by the respondent was inadmissible. 6 Mr S Benson of counsel for the respondent submitted that Ms Dubow's application for default judgment and punitive costs was misconceived and ought be dismissed. It was submitted that the respondent had always maintained its position denying that the applicant had been threatened with dismissal and in that respect had filed and served affidavits of evidence on which it intends to rely at the hearing in opposing the applications for relief. 7 Mr Benson further submitted that the mechanism of a default judgment was not appropriate in respect to the Commission's jurisdiction in dealing with applications for relief in relation to alleged unfair dismissals. He submitted the Commission was not a court of strict pleading. In any event, Mr Benson submitted that the principles laid down in Nagle (T/as W D and J L Nagle & Sons) v Tilburg & Anor (1993) 51 IR 8 and Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 regarding strike out applications were equally applicable to applications for default or summary judgment. 8 As to the late filing of evidence by the respondent Mr Benson submitted the delay was marginal and relied on an affidavit of Maria Kelly, solicitor, as to the reasons for the minor delay. Mr Benson also submitted: · Whilst the applicant asserts she was inconvenienced by the late service of the respondent's affidavits, the applicant provides no explanation why she failed to telephone the respondent's solicitor to ascertain the position. · [I]f the applicant had been concerned with the brief non-compliance with the directions by the respondent then the applicant was at liberty to apply to have the matter relisted to have that issue addressed. She chose not to do so. · The applicant filed her affidavit in reply on 30 July 2004 and the matter would appear to be ready for hearing some six weeks before the scheduled hearing date on 14 September 2004. 9 As to the applicant' claim for punitive costs, Mr Benson submitted that not only were the awarding of such costs beyond power having regard to s 181(2)(c) of the Industrial Relations Act 1996 but it had no merit. Consideration 10 I agree with Mr Benson that the Commission is not a tribunal of strict pleading and the civil procedure whereby a default judgment might be given where a defendant fails to file a defence is inappropriate to apply to unfair dismissal proceedings. It may be open to the Commission to give summary judgment if the circumstances justified it, for example, where there was no appearance entered by the respondent or where the applicant's case was not answered or the respondent did not propose to defend the application. However, this is not that case. 11 The respondent has made it clear that it does not accept there was any threatened dismissal and has filed evidentiary material upon which it intends to rely in opposing the applicant's claims. There is no basis for granting the applicant summary judgment on the grounds relied upon by the applicant. 12 That the applicant was concerned at the respondent's late filing of material is understandable to some extent. The applicant has been punctilious in complying with the Commission's directions and being an unrepresented litigant, albeit a legally qualified one, is no doubt anxious that she gets as much time as possible to prepare her substantive case. However, the delay was relatively brief and I accept the evidence of Ms Kelly regarding the difficulties she faced in having the deponents complete their affidavits in the time allotted. I do not consider the late filing of the respondent's material in any way prejudices the applicant and it is not a basis upon which I would exclude the material in the substantive proceedings. 13 Even if the applicant had been successful on her motion costs would not have been awarded: See s 181(2) of the Industrial Relations Act. No question of costs against the respondent arises. 14 The applicant's motion is dismissed. 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.