Industrial Relations Commission of New South Wales CITATION : Hook and Adchem Industries Pty Ltd [2003] NSWIRComm 334 APPLICANT PARTIES : Cameron Raymond Hook RESPONDENT Adchem Industries Pty Ltd FILE NUMBER: 4040 of 2002 CORAM: Sams DP CATCHWORDS : Termination of employment - unfair dismissal - conduct of proceedings - representation of parties - failure to attend proceedings - contempt of Commission - reallocation to another member of the Commission - unsuccessful attempts to contact both parties - failure to attend proceedings - six months since matter last listed - no attempt by applicant to prosecute his case - powers to dismiss for want of prosecution - principles considered - failure to pursue case with due diligence - rules of the commission - Supreme Court Rule - s84 claim dismissed for want of prosecution - matter not concluded - issue of contempt referred to President. LEGISLATION CITED : Industrial Relations Act 1996 Industrial Relations Commission Rules - Rules 237 and 146 CASES CITED : Kaprivinjak and others v Body Corporate Services (NSW) Pty Limited, 87 IR 49 HEARING DATES: 08/15/2002; 11/07/2002; 12/04/2002; 02/21/2003; 03/28/2003; 04/11/2003 DATE OF JUDGMENT: 10/13/2003 APPLICANT 15/08/02 - For himself 07/11/02 - Ms T Carter, Employment Help Services 04/12/02 - Mr J Boghossian, Employment Help Services 21/02/03 - For himself 28/03/03 - No appearance 11/04/03 - No appearance LEGAL REPRESENTATIVES: RESPONDENT 15/08/02 - Mr S Baghdadi 07/11/02 - No appearance 04/12/02 - Mr S Baghdadi 21/02/03 - No appearance 28/03/03 - No appearance 11/04/03 - No appearance JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 13 October 2003 Matter No IRC02/4040 CAMERON RAYMOND HOOK AND ADCHEM INDUSTRIES PTY LIMITED Application by Cameron Raymond Hook re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2003] NSWIRComm 334 1 This decision concerns an application pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 (the 'Act'), filed on 12 July 2002 by Mr Cameron Hook (the 'applicant') for relief from alleged unfair dismissal by Adchem Industries Pty Ltd (the 'respondent'). 2 The application was originally allocated to O'Neill C who listed it for preliminary hearing on 15 August 2002. The applicant appeared for himself and Mr S Baghdadi represented the respondent. A settlement of the matter was unable to be reached. The Commissioner listed the matter for hearing on 10 September 2002 and issued directions for the filing of witness statements. 3 I note that the file contains a note to the effect that at the conclusion of those proceedings, the respondent became aggressive and threatening towards Commissioner O'Neill and the Sheriff's Office was advised of the next listing and asked to have a sheriff present in the hearing room. 4 According to the file, Commissioner O'Neill amended directions in chambers on 19 August and set a new date for hearing - 7 November 2002. There followed an exchange of correspondence with Employment Help Services (EHP), now acting for the applicant, seeking an extension of time for the filing of witness statements. On 6 November, the Commissioner's Assistant received a telephone call from Ms T Carter of EHS, advising that she had been unable to prepare the applicant's statements by the hearing date (the next day) and that Mr Boghossian of EHP would be filing a notice of ceasing to act. 5 Commissioner O'Neill converted the hearing to a mention on 7 November 2002 and Ms Carter undertook that she would attend with the applicant. The respondent was advised by facsimile that the matter was listed for 7 November. 6 On that date Ms Carter appeared for the applicant. There was no appearance of the respondent. The applicant was sworn in and the Commissioner accepted his statement and marked it Exhibit "1". Commissioner O'Neill adjourned the matter, having advised EHS that written submissions must be filed within fourteen days. 7 The matter was next listed on 4 December when Mr Boghossian appeared for the applicant and Mr Baghdadi represented the respondent. The applicant gave sworn evidence and Mr Baghdadi gave evidence for the respondent. At the conclusion of proceedings, the Commissioner reserved his decision and the matter was adjourned. 8 However, on 23 January 2003, Commissioner O'Neill wrote to his Honour the President and advised as follows: At the conclusion of the hearing of this case on 4 December 2002, I reserved my decision pending the arrival of the final transcript. The transcript has now arrived and it was my intention to immediately write my decision upon receipt of same. However, over the past few weeks two people, both a person representing the respondent and the respondent himself, have approached me in the presence of my wife regarding this matter. In my opinion they were seeking to unduly influence me in my decision. I am very distressed about this and am greatly concerned about the impropriety of these approaches and the discredit my issuing of a decision in the matter could now cause to myself and to the Commission. I am not prepared to place either myself or the Commission in this situation. I now feel that the most appropriate action for me to take is to return the file to you so that it may be re-allocated to another member of the Commission for determination. 9 On 18 February Commissioner O'Neill again wrote to his Honour and formally sought to disqualify himself from the proceedings: I refer to the above matter and to my previous correspondence to you dated 23 January 2003. I confirm that I wish to formally disqualify myself from making a determination in the matter. I believe that this is the most appropriate course of action for me to take given the seriousness of the situation. 10 The file was then re-allocated to his Honour the Vice President Walton J, who listed the matter for directions on 21 February 2003. There was no appearance of either party and a further notice was sent to the parties advising that the Vice President had re-listed the matter for directions on 28 March 2003. His Honour referred to the approach by the respondent to Commissioner O'Neill and the prospect of referring the matter to a Full Bench of the Commission in order for the Full Bench to consider whether it would direct the Registrar, pursuant to r237 of the Commission's Rules, to apply by motion or to commence proceedings for punishment of contempt of the Commission. Advice was subsequently sought from the Crown Solicitors' Office. 11 On 7 March a notice of ceasing to act was received from Mr Boghossian and the matter proceeded before the Vice President on 28 March with the applicant representing himself and no appearance for the respondent. After discussions with the applicant, His Honour advised that the matter would be re-allocated to another member of the Commission for determination of the s84 proceedings. 12 His Honour, the President re-allocated the file to me on 7 April 2003 and the matter was listed for directions on 11 April 2003. There was no appearance of either party on that date and the Commission instructed the Registrar to make inquiries as to the contact details of the parties. It is noted that in answer to the Vice President's comment on 28 March that "It will be important for you to advise any change of address" the applicant had said "I have done so now". However, upon further inquiry, the file contains no address other than that originally provided by the applicant in his s84 application. 13 On 14 April the Registrar was requested to make further inquiries as to the contact details for both the applicant and the respondent. A search was conducted through the Australian Securities and Investments Commission which established that there had been notification of the filing of an application for the winding up of the company on 3 March and 5 March 2003. The Registrar eventually contacted Mr Baghdadi who advised that a liquidator had been appointed. However, he did not know who the liquidator was, but may have correspondence that could assist. The Registrar requested he forward such correspondence by facsimile as a matter of urgency. Mr Baghdadi undertook to do so if he could locate the details. No documentation was received and attempts at further contact with Mr Baghdadi have been unsuccessful. 14 In relation to the applicant's current contact details, the Registrar established that there was no record of him having advised the Registry of any change of address. 15 It is now over six months since this matter was last listed. There has been no contact with the Commission by the applicant and no further contact from Mr Baghdadi or the liquidator of the respondent company. In view of these circumstances, and the unhappy history of this matter, it seems to me that it is appropriate, at this juncture, to consider dismissing the applicant's s84 claim for want of prosecution. 16 The discretionary powers of the Commission to dismiss a matter for want of prosecution are to be found in Pt 17, Div 4 of the Commission's Rules - Want of Prosecution. Rules 146 and 147 provide: 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 (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 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 17 In Kaprivinjak and others v Body Corporate Services (NSW) Pty Limited, 87 IR 49, Peterson J considered similar provisions in the Supreme Court Rules and the general principles that have been distilled from judgments of the Supreme Court. His Honour said: The Commission's discretion in this matter is referred to in Pt 19, Withdrawals and Discontinuance, Div 4, Want of Prosecution, of the Commission's Rules. Rules 146 and 147 provide: Want of Prosecution 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 (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 Effect of dismissal 147. 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. The primary objective of the discretion to dismiss a matter under r 146 appears to me to be synonymous with that which arises under Supreme Court Rules (NSW). Mr Rogers made the point that r 147 creates a position different to that under the Supreme Court Rules (NSW) in that a dismissal for want of prosecution in this Commission creates a res judicata in relation to the relief sought. There is no such equivalent in the Supreme Court Rules (NSW). However, as Mr Corsaro submitted, in the Supreme Court there is generally no point in seeking to have the matter dismissed for want of prosecution if it is within the limitation period and capable of being recommenced. The point thus is usually taken in minutes in respect of which the limitation period has expired and accordingly the effect is the same: a dismissal is final. In the Supreme Court the leading point of reference in the Authorities is the judgement of Cross J in Calvert v Stollznow (unreported, 1 April 1980, Supreme Court Procedure, Vol 2, pp 8528-8545) affirmed on appeal in Stollznow v Calvert [1980] 2 NSWLR 749. As a result of those judgments the following principles may be expressed: 1. Each case must depend on its own facts, without adherence to rigid formulae. 2. The Court must decide whether or not on balance justice demands that the action should be dismissed 3. The blamelessness of a plaintiff personally for the delay is a fact relevant to be considered. Any fault of the plaintiff's solicitor should not, as a matter of course, be attributed vicariously to the plaintiff. 4. Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered, is credible and satisfactory. 18 While his Honour was there dealing with unfair contract proceedings in the Commission in Court Session under s275 of the Industrial Relations Act, 1991, the relevant rules were then, and are now, applicable to all proceedings of the Commission, whether sitting as the Court, or otherwise. 19 That being so, it seems to me, that his Honour's summary of the principles to be applied is a helpful guide to my consideration of the instant circumstances of this case. 20 Before doing so, it is also necessary to observe that dismissing an application for want of prosecution is a most serious matter. The Commission's power to do so should be exercised with considerable care and caution. This is implicit in the authorities to which I have earlier referred. Each case must be decided on its own particular facts and circumstances. However, there will invariably arise a point, in the failure of an applicant to pursue his/her case with due diligence in which the interests of justice, and the efficient and orderly conduct of the Commission's case load, demands that an application be dismissed for want of prosecution. I am satisfied that this is one such case. 21 Pursuant to Rule 146 of the Commission's Rules, the applicant's s84 claim in matter 4040/02 is hereby dismissed for want of prosecution. 22 Having so decided, there remains one outstanding matter which may yet require further consideration by the Commission. That matter relates to the question of any contempt proceedings which might flow from the respondent's approach to Commissioner O'Neill in December 2002. In view of the seriousness of this matter, I propose to remit the file to His Honour the President for His Honour's further consideration and attention. Peter J Sams Deputy President 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.