Industrial Relations Commission of New South Wales CITATION: Da Silva and Sunlake Real Estate Pty Ltd t/as L J Hooker Morisset [2005] NSWIRComm 193 APPELLANT Ricardo Da Silva PARTIES: RESPONDENT Sunlake Real Estate Pty Ltd t/as L J Hooker Morisset FILE NUMBER(S): IRC 6421 of 2004 CORAM: Walton J Vice-President; Staff J; McLeay C CATCHWORDS: Appeal - Leave to appeal - Dismissal for want of prosecution - Denial of natural justice - Miscarriage of justice - Leave to appeal granted - Interests of justice - No notice of application to dismiss proceedings - Appeal upheld - Orders made - Matter remitted LEGISLATION CITED: Industrial Relations Act 1996 House v The King (1936) 55 CLR 499 CASES CITED: Mealey and the Council of the City of Sydney [2004] NSWIRComm 58 HEARING DATES: 06/06/2005 DATE OF JUDGMENT: 06/06/2005 APPELLANT Ricardo Da Silva (In person) LEGAL REPRESENTATIVES: RESPONDENT Mr L Schur No appearance but Written Submissions JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Walton J Vice-President Staff J McLeay C 6 June 2005 Matter No IRC 6421 of 2004 RICARDO DA SILVA AND SUNLAKE REAL ESTATE PTY LTD T/AS L J HOOKER MORISSET Application by Ricardo Da Silva for leave to appeal and appeal against decision of Deputy President Harrison given on 11 October 2004 in Matter No IRC 7378 of 2003 DECISION OF THE COMMISSION EX TEMPORE [2005] NSWIRComm 193 1 Ricardo Da Silva ("the appellant") was employed by Sunlake Real Estate Pty Ltd t/as L J Hooker Morisset ("the respondent") as a real estate salesperson from 19 June 2003 until his services were terminated in December 2003 for alleged poor performance. The appellant subsequently made application for relief under s 84 of the Industrial Relations Act 1996 ("the Act"). 2 The application was listed for hearing before Harrison DP on 8 October 2004. On that day, neither party appeared and the Deputy President discharged the matter for want of prosecution after an ex parte communication from the respondent. Subsequently, the appellant applied for leave to appeal and, if leave is granted, to appeal the Deputy President's decision. 3 It was common ground that neither party appeared at the hearing of the matter on 8 October 2004. Attempts to contact the appellant on 8 October 2004 proved unsuccessful. The respondent, when contacted by telephone by the Deputy President's Associate on 8 October 2004, made an application that the matter be dismissed for want of prosecution. This application was granted by the Deputy President without hearing the appellant. 4 Each party had filed and served statements of evidence in accordance with directions given by the Commission prior to the date fixed for the hearing of the matter. In submissions relating to the appeal proceedings, each party also advanced a reason for their non attendance. 5 The appellant submitted that he had been denied natural justice relying upon the Full Bench decision (Walton J Vice-President, Sams DP, Tabbaa C) in Mealey and the Council of the City of Sydney [2004] NSWIRComm 58. 6 Mr L Schur, the owner of the respondent, submitted that Deputy President Harrison had correctly exercised his discretion in accordance with r 146 of the Industrial Relations Commission Rules ("the Rules") in dismissing the application. 7 Rules 146 and 147 are in the following terms: 146 Want of prosecution 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 (b) fix a definite time for the doing of the act and at the same time order that upon non-compliance the application shall stand dismissed for want of prosecution or subsequently, in the event of non-compliance, order that it be dismissed, or (c) make such further or other order as in the circumstances may seem just. 147 Effect of dismissal Subject to any right of appeal, where a tribunal dismisses an application for want of prosecution the applicant shall not claim the same relief in fresh proceedings. 8 In our opinion, the appellant was denied natural justice when his application was dismissed for want of prosecution. We make this finding for the following reasons. 9 The appellant was unaware that an application had been made, albeit, by telephone to the Deputy President's Associate by the respondent to have the application dismissed for want of prosecution. No opportunity was therefore given to the appellant to be heard in respect of this application. 10 In Mealey,the Full Bench observed at [49] - [51]: [49] It is a fundamental right of any party to litigation to be given reasonable notice of any substantive application moved by the opposing party. A fortiori when the effect of such as application is to finalise the proceedings without trial. By dint of the operation of r147, the effect of dismissal, absent the exercising of a right of appeal, is final. An appellant is unable to bring fresh proceedings. [50] We would make it clear that before a matter can be dismissed under r146, parties must be afforded an opportunity to be heard on the issue. Without this opportunity being given to an applicant, we consider that the Commission would not be in a position to be able to form a proper view of the application. This need not necessarily require the procedure advocated for the appellant under rr68 and 69 (see r69(2)). We note, however, that if dismissal of the proceedings was raised by an appropriate notice of motion and with reasonable notice being afforded to the respondent to the notice of motion, then a failure to attend the proceedings might well result in the application being granted. We emphasise that this was not the case in the proceedings before the Deputy President. [51] We wish to make two further observations. Rule 146 requires a finding that a party "has not pursued the proceedings with due diligence". In considering any application for want of prosecution it is important to make a proper assessment as to whether the history of the proceedings warrants such a conclusion. On any objective assessment, we think that such a description could not be applied to the appellant in the circumstances we have earlier described. Indeed, the fact that he was seeking alternative representation strengthens our view that he had every intention to continue to pursue his claim. His only potential lack of diligence was being ill prepared and ill equipped to run his case at the hearing or defend himself against the want of prosecution application (which may, in the circumstances, be explained at least by his lack of literacy). 11 Accordingly, the failure by the Deputy President to provide the appellant with an opportunity to respond to the application to dismiss his case for want of prosecution constitutes a miscarriage of justice in a manner which attracts appellant intervention under the principles in House v The King (1936) 55 CLR 499. 12 We note, additionally, there was an explanation available for the non attendance of the appellant. He should have been given an opportunity to advance that explanation before the determination of the application for want of prosecution particularly in circumstances where the appellant had complied with the steps necessary to have the matter ready for hearing. 13 The respondent complained that it has been the subject of legal action for 17 months and contended that this length of time is both unfair and unreasonable. 14 We have taken into account the prejudice to the respondent in upholding the appeal, however, we are of the firm view that the interests of justice would be best served if the appellant is permitted to have his application properly heard and determined. We have not, of course, given any consideration to the merits of the appellant's case. 15 We consider that leave to appeal should be granted and the appeal upheld. ORDERS We make the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision of Harrison DP of 11 October 2004 is quashed. 4. The matter is remitted to a Member for hearing. 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.