Industrial Relations Commission of New South Wales CITATION : Sonia Lawless and Leichhardt Community Youth Association [2003] NSWIRComm 66 APPLICANT: PARTIES : Ms Sonia Lawless REPONDENT: Leichhardt Community Youth Association FILE NUMBER: 6545 of 2002 CORAM: Sams DP Termination of employment - unfair dismissal - conduct of proceedings - Industrial Relations Commission Rules - Rule 146 - failure to attend proceedings - want of prosecution - balance of justice - principles considered CATCHWORDS : Held, onus on applicant to advise of contact details - extaordinary efforts made to contact applicant - last known postal address - failure to appear - application not pursued with due diligence - inconvenience and cost for respondent - balance of justice favours respondent - Rule 146 - application dismissed for want of prosecution LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Community Employment, Training and Support Award 1999 (Cth) HEARING DATES: 03/06/2003 DATE OF JUDGMENT: 03/06/2003 APPLICANT: No appearance LEGAL REPRESENTATIVES: RESPONDENT: Mr K Godfrey (Agent) Jobs Australia JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 12 March 2002 Matter No IRC02/6545 Sonia Lawless and Leichhardt Community Youth Association Application by Sonia Lawless re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2003] NSWIRComm 66 1 On 6 March 2003, the Commission dismissed this application for want of prosecution, pursuant to r 146 of the Industrial Relations Commission Rules. I now publish my reasons. 2 The applicant, Sonia Lawless alleges that she was unfairly dismissed by Leichhardt Community Youth Association ("the respondent"). The applicant filed a claim on 19 November 2002 for relief from her alleged unfair dismissal, pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 ("the Act"). 3 It is unnecessary for the purposes of this decision to detail the circumstances surrounding the applicant's dismissal. I note however, the applicant was seemingly represented by the Australian Services Union during investigation into an allegation that she had obtained her employment with the respondent by deception. I note further that the respondent contends that the applicant was employed under the terms of a federal award; namely the Community Employment, Training and Support Award 1999 (Cth) and that the respondent is a named respondent to that award. Nature of Proceedings 4 The matter was originally listed for direction and conciliation on 19 December 2002. However the Commission received a faxed letter (Exhibit 1) from the applicant on 17 December 2002 advising that she now lived in Ceduna South Australi, and did not have the financial resources to travel to Sydney until the New Year. 5 The Commission agreed to vacate the listing and set the matter for 6 March 2003. In accordance with my usual practice, my Associate attempted to contact the applicant by phone to advise of the relisting. This proved unsuccessful. A further attempt was made to contact the applicant by way of the Facsimile number recorded in Exhibit 1. These attempts were also unsuccessful. Finally on 3 March 2003, I instructed my Associate to advise the applicant of the relisting by Express Post to the address recorded in her original application. 6 On 6 March 2003, the applicant did not attend the proceedings. Mr K Godfrey (Agent) represented the respondent and sought to have the application dismissed for want of prosecution. 7 The express post letter was returned to sender on 12 March 2003. CONCLUSION 8 Rule 146 of the Industrial Relations Commission Rules applies: 146 Where any party has 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 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. 9 The principles to be applied by the Commission when considering whether to dismiss a matter for want of prosecution were discussed by me in Hutchinson v Karl Azzi Hairstylists [2002] NSWIRComm 133 and Xiu Zhen Lin v Roseville Golf Club Limited [2002] NSWIRComm 81. I adopt the principles discussed in both cases and do not quote from them. 10 I would firstly observe that it is not appropriate, or reasonable for this Commission, through my Associate, to investigate and attempt to track down the whereabouts of a party when the party has not provided the Registry with a forwarding address and contact phone number. 11 Secondly, in my opinion there is an onus on a party to proceedings to advise the Registry of any change in their contact details. This has never been done. 12 Thirdly, when the applicant sought, and was granted an adjournment it would seem reasonable to expect that she would have made contact with the Commission to ascertain a new listing date and time. She has made no attempt to do so since 17 December 2002. 13 Fourthly, the Commission has gone to extraordinary and unusual efforts to contact the applicant - all to no avail. 14 In view of these circumstances I am satisfied that the applicant has not pursued these proceedings with due diligence. 15 Moreover, the applicant's failure to do so has caused considerable inconvenience and costs for the respondent. The respondent is entitled to know whether, and if, it has a case to answer. In any event it seems to me that prima facie the applicant was employed under the terms of a federal award and consequently the application has no jurisdictional basis. However, in my judgement it would not serve the interests of justice in allowing this application to remain alive. 16 Accordingly, pursuant to r 146 of the Industrial Relations Commission Rules, matter IRC 2002/6545 is dismissed for want of prosecution. 17 The proceedings are concluded. The file will be marked accordingly and returned to the Registry. Peter 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.