Industrial Relations Commission of New South Wales CITATION: Peter Leo Smith and D.M. Roberts & Company, Solicitors [2005] NSWIRComm 1007 APPLICANT Peter Leo Smith PARTIES: RESPONDENT Beverley Boyle FILE NUMBER(S): IRC 2312 of 2004 CORAM: Tabbaa C CATCHWORDS: Failure to prosecute case expeditiously - failure to mitigate losses - applicant's case had little prospect of success - vexatious claim LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 05/31/2004; 09/13/2004 DATE OF JUDGMENT: 01/04/2005 Applicant appeared in person LEGAL REPRESENTATIVES: RESPONDENT Beverley Boyle, Solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: TABBAA, C. 4 January 2005 Matter No IRC 2312 of 2004 PETER LEO SMITH and D.M. ROBERTS & COMPANY, Solicitors. Application by P. Smith re: unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996. DECISION [2005] NSWIRComm 1007 1 Mr. Peter Leo Smith (the applicant) filed a claim under Section 84 of the Industrial Relations Act, 1996 on 16 April, 2004 alleging that the respondent had unfairly dismissed him on 15 April, 2004. The applicant contended that he had been employed from 10 July, 2000 until his dismissal as a Litigation Lawyer. 2 The file was allocated on the same day and was set down for conference and directions on 31 May, 2004 at which time the following appearances were entered: Mr. P. Smith Applicant, on his own behalf Mrs. B. Boyle Sole Practitioner, on behalf of the Respondent 3 The claim was unable to be resolved on that occasion. The Respondent had referred to a litany of complaints from staff and clients, which had allegedly been discussed with the applicant. He had allegedly received verbal warnings in relation to those and had been issued with two (2) written warnings on 01 and 11 August, 2003. 4 The Applicant denied the allegations and, for that reason, a direction was issued to the Respondent to prepare a chronological list of those complaints and provide it to the Applicant by close of business of 07 June, 2004. For his part, the Applicant was to consider the contents of that list and advise of his intentions by 15 June, 2004. The timetable was set in the knowledge that the Applicant would be out of Australia during July and August 2004. Prior to the conclusion of those proceedings, the applicant requested that the date for his response be extended to 16 June, 2004 because he was "having a small procedure". 5 On 02 June, 2004, the Respondent mailed to the Applicant a chronology of complaints received against, and warnings given to, him. The Commission's copy was received on 04 June, 2004. 6 On 03 June, 2004, Mr. Smith wrote to the Respondent seeking further particulars. The correspondence was framed as a Notice to Produce. Upon seeking advice from my Assistant, the Respondent was advised, on 07 June, 2004, that the information sought went beyond the direction issued by the Commission, nevertheless, she was advised to provide the information sought in order to facilitate the conciliation of the claim. 7 Mr. Smith did not comply with the Commission's direction to advise of his intentions by 16 June, 2004 following an examination of the material relied on by the Respondent. 8 My assistant rang Mr. Smith on 17 June, 2004 to obtain his reply as he had not advised of his intentions by the due date. He contended that he was unaware of that deadline! He advised that he could not have replied because he had undergone surgery to his underarm area and had 16 stitches. He undertook to deliver his reply on 18 June, 2004. During that conversation, he confirmed that he would be away from 03 July, 2004 until the end of August 2004. 9 The applicant faxed to the Commission his hand-written response to the allegations on 18 June, 2004. Apart from being illegible, the quality of the transmission was unsuitable as the writing on the left margin had been omitted. The covering letter indicated that he wished to pursue the claim and sought hearing dates commencing Monday, 20 September, 2004. 10 On 22 June, 2004, the Respondent sent information on a further complaint that had been omitted from the chronology. 11 A legible copy of the Attachment was emailed to my assistant at 11.19.57 on 02 July, 2004 from the applicant's daughter's email address. 12 As it was the applicant who had suggested 20 September as a suitable hearing date even though he had planned to be away from 03 July to the end of August, it was naturally assumed that he would be in a position to comply with a filing schedule directed in accordance with Practice Direction 11, particularly as he had only his affidavit to submit. 13 Bearing in mind his 03 July departure date and having received an email from him earlier that day from that email address, my assistant emailed to him on 02 July, at his daughter's address, the following filing schedule: Applicant's Statements due by 4 pm 23.07.2004 Respondent's Statements due by 4 pm 13.08.2004 Applicant's Statements in reply due by 4 pm 20.08.2004 14 The schedule was also posted to the applicant. In addition, the parties were provided with two (2) options in relation to the hearing and were directed to confer and advise which date was mutually suitable. 15 The Applicant failed to meet the filing schedule on 23 July, 2004. On 29 July, 2004, my Assistant sent an email at 3.52 pm to his daughter's email address seeking his intentions in relation to his claim. A response was received at 8:06:15 pm on the same day from his personal email address. He stated that he had been in Europe since 04 July and would not be returning to Australia until 08 September, 2004 (not the end of August as previously advised to the Commission). He repeated his intention to proceed with his claim but contended that he had been unaware of the filing schedule. He sought until 5 pm on Monday, 13 September, 2004 to lodge his statements. 16 My assistant, on my instructions, forwarded a reply at 5.07 pm on 03 August, 2004 to his personal email address, in the following terms: Dear Mr. Smith Thank you for your reply which I note has come from a different email address. You indicated to the Commissioner on 31.05.05 that you would be away during July & August and that was the reason for the urgency in seeking your intentions by 16.06.04. Despite repeated attempts, your emailed response was not effectively received until 02.07.04. I replied to that email, the same day, attaching the filing schedule. I did not receive a failure report, so it seemed that the email was transmitted satisfactorily. I used the same email address on 29.09.04, when I sent a reminder about the late submission of your statements. Again, I did not receive a failure report. I received a reply from you from your personal hotmail account on the same date. You are obliged to prosecute your claim expeditiously. You are therefore requested to provide details of the dates of your departure from & arrival back into Australia. Yours sincerely, Liz Day Personal Assistant to Commissioner Tabbaa 17 No response was received from Mr. Smith. Copies of the above emails were forwarded to Mrs. Boyle for her information. 18 On 11 August, 2004 correspondence was received from the Respondent seeking dismissal of the claim on the following grounds: 1. That the applicant had failed to prosecute his case; 2. That the applicant's case had little prospect of success; and 3. The claim was vexatious. 19 An email was forwarded to the Applicant at his personal email address at 10:28:53 am on 16 August, 2004 advising that the matter was listed at 9.30 am on 13 September, 2004. Confirmation was received from Mr. Smith at 6:49:36 pm on 18 August, 2004 that "Monday 13 September 9.30 am is suitable". 20 The Respondent's request was formally couched in a Notice of Motion filed on 19 August, 2004. 21 The Commission was aware that the Respondent had still not received a legible copy of the applicant's reply to the allegations made against him. The faxed copy had been illegible and Mrs. Boyle had written to the Applicant on 06 September, 2004 seeking a legible hard copy of his response. She had taken the opportunity to attach a bundle of notes and letters contained in his [personnel] file from which the list of complaints and warnings were compiled. 22 Presumably, Mr. Smith returned to Australia on 08 September, 2004 and it is assumed that he had received Mrs. Boyle's correspondence of 06 September as he had a legible hard copy for her which he handed to her prior to the proceedings commencing on 13 September. 23 At approximately 9.15 am on 13 September, 2004, a message was relayed to me in Chambers from the Applicant to the effect that he "had an appointment at 10.30 am in the hospital". No other details had been provided. 24 Proceedings commenced with Mrs. Boyle making a submission in relation to the Notice of Motion. 25 In relation to the failure to reply to the complaints made by the Respondent within the timeframe directed by the Commission, that is 16 June, 2004, Mr. Smith stated that he had not kept a note of that date. It was noted that the first warning issued by the Respondent on 01 August, 2003 related to record keeping and that issue appeared to be the source of on-going disputation between the parties. 26 He had confirmed receipt of the Respondent's allegations on 03 June, 2004. He had, shortly after faxing his late reply, spoken to Ms Sandra Wade at the Respondent's firm to determine whether his reply had been received. He was made aware that the reply was illegible and he undertook to forward a legible copy. That was not done prior to his departure overseas. A legible copy was not provided until immediately prior to the proceedings on 13 September, 2004 following a written request by Mrs. Boyle dated 06 September, 2004. 27 Mr. Smith contended that he had not received the filing schedule. When it was pointed out to him that the Commission had responded to his email of 02 July, 2004, on the same day and to the same email address, setting out a filing schedule, he sought an adjournment stating that he had a pressing appointment in hospital at 10.30 am. The appointment had been made on medical advice. The medical condition was not divulged. The Commission was aware of his earlier contention that he was suffering from depression and anxiety. 28 As he was unemployed, he had acquiesced to a request from his son to stay on in London for a further fortnight. He pressed for an adjournment pointing out that it was the first occasion the Notice of Motion had appeared on the Commission's list. 29 Mr. Smith contended that "the Tribunal does not deal with Notices of Motion". He maintained that his daughter had not told him about the Notice of Motion until midnight the previous night as she thought it would be too upsetting for him. 30 In response to an inquiry from the Commission, Mr. Smith advised that he had made the appointment at RPAH the previous week. He would not respond to the question from the Commission as to why he had not made application for the matter to be rescheduled once he was aware of the clash in dates. Instead, he had allowed the matter to proceed and disrupted the Respondent's legal practice. 31 Mr. Smith denied advising my Assistant that he was seeking more time to obtain legal advice. He stated that he had "looked up the law in the Law Society diary". 32 The Respondent objected to the adjournment pointing out that s. 84 claims were intended to be dealt with expeditiously. Instead, Mr. Smith was going "his merry way" while his allegations of forgery were hanging over her. In addition, Mr. Smith had made no attempts to mitigate his losses by seeking alternative employment. Finally, Mr. Smith had not seriously addressed the issue of proposing a reasonable settlement until now. 33 At that stage, Mr. Smith was advised that the Commission was "inclined to dismiss this claim" at which point Mr. Smith threatened to take the matter further if the Commission proceeded to do so, up to the Supreme Court. 34 It was impossible to proceed with the matter further as Mr. Smith had packed up his papers a long time before and was on his feet to proceed out of the hearing room. 35 The Commission found that the proceedings had been frustrated by the applicant's actions and the claim was dismissed. 36 The reasons for the dismissal are as follows - Firstly, there was a litany of complaints against the applicant which had previously been raised with him. He had denied that the complaints had been raised with him. Nevertheless, a timetable was set down for the Respondent to provide copies of all the relevant material by 07 June and for the applicant to advise by 15 June of his intentions in relation to the claim upon perusal of that material. Those dates were discussed with, and agreed to by the parties. In fact, the applicant had extended his response date to 16 June as he was "having a small procedure" and were suitable to him as he was travelling overseas during July and August 2004. Mr. Smith sought further particulars which extended beyond the direction of the Commission. Secondly, the applicant had failed to meet the deadline for his response. My assistant had to call and pursue his response and he was granted an extension to 18 June. When the reply arrived, it was illegible. The Respondent did not receive a legible reply until 13 September. Thirdly, the Applicant provided my assistant, on 17 June, with the dates of departure and arrival back in Australia (03 July - 31 August). In correspondence dated 18 June, it was the applicant who suggested hearing dates commencing 20 September. In accordance with Practice Direction No. 11 and, bearing in mind the applicant's availability and request, a filing schedule was directed. Fourthly, the applicant had been forwarded the filing schedule by post and by email to his daughter's email address on 02 July. The applicant had corresponded with my Assistant from that email address earlier that same day. Fifthly, when the applicant failed to comply with the filing schedule, an email was forwarded to him at his daughter's email address and he had responded on the same day from his personal email address seeking an extension of time to lodge his statement. Sixthly, the Commission set the matter down for hearing of the Respondent's Notice of Motion and that listing was communicated to Mr. Smith via his personal email on 16 August. Mr. Smith had responded via the same medium that Monday 13 September 9.30 am is suitable. Seventhly, Mr. Smith had been convinced by his son to stay on in London for another fortnight. He confirmed that he had agreed to stay on as he was unemployed. No attempt had been made to mitigate his losses since his dismissal and the filing schedule had not been met despite the request for a September 20 hearing. Eighthly, Mr. Smith had made an appointment at the Hospital, the previous week, in the knowledge that he had a hearing on that day. No attempt had been made beforehand to seek an adjournment. The Respondent had a very small legal practice in Mt. Druitt and the applicant was aware that the adjournment would cause her great inconvenience. Ninthly, Mr. Smith was neither apologetic nor remorseful. His attitude towards the Respondent and the Commission was arrogant and disdainful. Finally, the nature of his medical condition had not been disclosed and no doctor's certificates were produced. A medical condition appeared to surface every time he was required to meet a deadline. 37 On the basis of all of the above, the Commission finds that the Applicant failed to prosecute his case in a timely manner bearing in mind the dates he had suggested and/or agreed to. On that basis, there is no need to comment on the other two grounds contained in the Notice of Motion. 38 Matter No. IRC 2312 of 2004 is hereby dismissed for want of prosecution. I. Tabbaa 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.