Bowling v Carryspot Pty Ltd [2000] NSWIRComm 61

Industrial Relations Commission of New South Wales in Court Session

CITATION : Bowling v Carryspot Pty Ltd [2000] NSWIRComm 61 APPLICANT KEVIN BOWLING PARTIES : RESPONDENT CARRYSPOT PTY LTD T/AS TRANSMISSION AND ENGINE PHYSICIAN FILE NUMBER: IRC902 of 1999 CORAM: Peterson J CATCHWORDS : Deputy Registrar striking out for want of prosecution - Notice of Motion to restore to list - only avenue available is to appeal to Commission. LEGISLATION CITED : Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 HEARING DATES: 03/22/2000 DATE OF JUDGMENT: 04/20/2000

APPLICANT Ms E Brus of counsel SOLICITOR Dooley & Associates Solicitors SYDNEY LEGAL REPRESENTATIVES: RESPONDENT Ms M Fraser of counsel SOLICITOR Humphreys & Corish Solicitors HORNSBY

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: PETERSON J

DATE: 20 APRIL 2000

Matter No. IRC902 OF 1999

KEVIN BOWLING v CARRYSPOT PTY LTD T/AS TRANSMISSION AND ENGINE PHYSICIAN

Application under s106 of the Industrial Relations Act 1996. INTERLOCUTORY JUDGMENT 1 These proceedings were commenced on 2 March 1999 by summons for relief under s106 of the Industrial Relations Act 1996 ('the Act'). The history of the matter is that it went into the Acting Deputy Registrar's ('the Deputy Registrar') callover list and was first was dealt with on 22 April 1999, when a timetable for filing of evidence was agreed, to complete by 10 June 1999. The matter was to be further mentioned on 17 June. The applicant was unable to meet the timetable and, at the suggestion of legal representatives of the respondent, a new timetable was proposed which would cause the matter to be relisted on 12 August 1999. That proposal was accepted by the Deputy Registrar. 2 For reasons which are not apparent the further mention of the matter on 12 August 1999 did not proceed but the matter was proposed to be mentioned again on 7 October. On that occasion the parties were not able to meet the second agreed deadline for the filing of material and it was agreed to request that the matter not proceed on 7 October but at a subsequent date. This arrangement was communicated to the Deputy Registrar too late and the matter appears to have been called on 7 October with no appearance from the parties. 3 On 4 November 1999 the matter was again before the Deputy Registrar, it was said by counsel for the respondent essentially to deal with summonses for production, with no appearance by the applicant. The matter was stood over until the 2 December 1999, the Deputy Registrar adjourning to that date the question of costs of 4 November. 4 On 2 December 1999 again the applicant did not appear and it seems from the record that it had not filed its affidavits in reply as directed by 1 December. On this date the Deputy Registrar made an order in the respondent's favour for costs of the proceedings on 4 November and those of 2 December. The Deputy Registrar then stood the matter over until 14 February 2000 for further mention and recorded that he would direct the Registry to advise the applicant of that adjourned date. 5 On 14 February 2000 the matter was called and again there was an appearance from the respondent but no appearance for the applicant. Mr. Feather, solicitor for the respondent, indicated that he "had not heard a thing from the applicant". Mr Feather referred to the fact the applicant had not attended court on the last occasion nor the occasion before that and then said: "And I foreshadowed making an application to have the . . . . matter struck out for want of prosecution. I'm instructed to make that . . . ." 6 In fact the transcript of proceedings of 2 December 1999 does not record any foreshadowing of such an application. In any event, an exchange between Mr Feather and the Deputy Registrar shows that there had been no contact between the parties since 2 December 1999. 7 After a further exchange between the Deputy Registrar and Mr Feather about power to strike out a matter, a question to which Mr Feather said he had not turned his mind, the Deputy Registrar made the following order: "Strike out for want of prosecution and an order for costs in favour of the respondents". 8 The applicant has subsequently filed a Notice of Motion seeking the following order: "That Keith Bowling be given leave to have his Summons re-instated to the list forthwith". 9 The grounds and reasons in support of the Motion are contained in an affidavit by Simon Dooley, the solicitor for the applicant. Broadly, the position adopted by Mr Dooley is that he had had no communication with the respondent's representatives since 7 October 1999, and he had not been informed that the matter was set down for directions on 14 February 2000. He was of the understanding that the matter was being held in abeyance pending the applicant's recovery from major heart surgery which had been carried out late in 1999 following ongoing health problems suffered by him. 10 This judgment does not concern the merits of the Motion to restore the matter to the list but a preliminary issue which has arisen, namely, whether the remedy sought by the Notice of Motion is available or rather whether the applicant's only course under the Act and the Rules of the Commission is to appeal to the Commission from the decision of the Deputy Registrar. The respondent's contention is in favour of the latter and the applicant seeks to support the former approach. 11 It seems to me the question for decision turns upon the meaning and effect of the order made by the Deputy Registrar on 14 February. If the meaning and effect of the order was to dismiss the application for want of prosecution then the decision was final and not capable of reversal other than by way of an appeal process. Alternatively, if the effect of the order was not to dismiss the proceedings but to strike them from the Deputy Registrar's list without any intention to finally dismiss them, then the question is whether the notice of motion provides an appropriate means of dealing with the issue of restoration to the list. The problem is complicated, it seems to me, by the Deputy Registrar's use of the language "strike the matter out for want of prosecution", because the provisions of the Rules dealing with want of prosecution authorise not a striking out, if that be different from a dismissal, but a dismissal. Rules 146 and 147 bear upon this matter: 146. Where any party has not done any act required to be done by or under the Act or any other Act or otherwise has not pursued the proceedings with due diligence, a tribunal may: (a) order that the application be dismissed for want of prosecution; or