Industrial Relations Commission of New South Wales CITATION: Nayla Azar and Dr Sushil Badami (Badami Family Medical Practice) Pty Limited [2006] NSWIRComm 1027 APPLICANT Nayla Azar PARTIES: RESPONDENT Dr Sushila Badami (Badami Family Medical Practice) Pty Ltd FILE NUMBER(S): 4641 of 2005 CORAM: Murphy C CATCHWORDS: Interim decision re Notice of Motion by applicant, seeking to have affidavits of respondent filed on 20th January, 2006 struck out for failure to follow directions of Commissioner O'Neill at first instance. The Notice also sought to have Notice to Produce, filed 11th January, 2006 by respondent disallowed on basis, inter alia, of relevance and privilege. Notice of Motion declined on both counts and applicant ordered to provide her reply statement within 48 hours in time for hearing and to supply material required by Notice to Produce, subject to limited conditions. LEGISLATION CITED: Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 CASES CITED: Sydney Legacy Appeals Fund vs Simpson [2003] NSWIRComm 91 in matter number IRC02/5993 Spanish Club Limited vs Bounouar [1998] 94 IR 173. HEARING DATES: 14/02/2006 DATE OF JUDGMENT: 02/14/2006 EXTEMPORE JUDGMENT DATE : 02/14/2006 APPLICANT Ms Azar represented herself LEGAL REPRESENTATIVES: RESPONDENT Mr Mahendra from Hunt and Hunt DECISION: 1 .14/02/06 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C TUESDAY 14 FEBRUARY 2006 Matter No IRC 4641 of 2006 NAYLA AZAR AND DR SUSHILA BADAMI (BADAMI FAMILY MEDICAL PRACTICE) PTY LIMITED Application by Nayla Azar re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION - EX TEMPORE [2006] NSWIRComm 1027 1 This is a interim decision in matter number 05/4641. The decision in respect of a Notice of Motion which was filed on this Commission on 27 January by the applicant Ms Nayla Azar. 2 This matter was the subject of submissions by Ms Azar and by Mr Mahendra who appears for the respondent in this matter. Mr Mahendra was from the firm of Hunt and Hunt. 3 The applicant's Notice of Motion was marked as exhibit 1 in these proceedings here today. In the opening to her Notice of Motion the applicant refers to r 179(6) of the Industrial Relations Commission Rules 1996 that the respondent not be allowed adduce such evidence as admitted to be a party in default. The applicant in that opening statement refers to the fact that there is an acknowledged failure by the respondent before Deputy Registrar Musgrave on 22 December 2005 of not having followed directions given to the parties by the Commissioner who originally heard this conciliation in respect of this matte 4 The applicant also provides an affidavit to the Commission which is marked exhibit 2. Further to the Notice of Motion the applicant also refers to r201(a) and (b) of the Industrial Relations Commission Rules and again, the party in default should not be allowed to produce evidence which is not filed in accordance with directions given. I should just refer to those two rules. Under r 179(6): "A party who fails to comply with a direction given under subrule (1) may not adduce evidence to which the direction related, except with the leave of the Commission". 5 The other rule referred to and relied upon by Ms Azar is r 201 failure to comply with any direction, "Where any party fails to comply with any requirement or direction made pursuant to r 199: (a) the Commission may consider any application made by any other party to deal with the party in default, or (b) the Commission may strike out any process of the party in default, or (c) the Commission or the Registrar may adjourn the proceedings until the party in default has complied with the requirements or directions given, or (d) the Commission or the Registrar may take such other action as is considered appropriate". 6 The Notice of Motion of the applicant goes on under the heading of, grounds and reasons: "that the respondent failed to comply with the directions of the Commission. 2, the respondent failed to respond to the applicant's affidavit filed on the respondent on 9 November within court orders and directions". C, the applicant seeks orders from this Commission to set aside the notice to produce pursuant to the above orders and pursuant to r 186(1) privilege of the Industrial Relations Commission Rules 1996, I should refer to r 186, Commission must not compel production of document: "Where the Commission, by summons or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Commission must not compel production of that document or thing except production to the Commission for the purpose of ruling on the objection". 7 The applicant again under grounds and reasons in D of her Notice of Motion says this: "the notice to produce served on the applicant on 11 January 2006 without orders from the Commission is out of time. 2, the notice to produce served on the applicant on 11 November 2005 is an abuse of process in these proceedings and irrelevant in this application under s 84 of the Industrial Relations Act 1996 for unfair dismissal". 8 We then have further submissions upon the grounds set forth in the affidavit of Nayla Azar, sworn on 27 January and filed herein. Such further and other orders as the Court may deem fit, and underneath that again, so to costs against the respondent in these proceedings. The document is appropriately signed. 9 The supporting affidavit from Ms Azar reads as follows: "I am the applicant and the representative in these proceedings. 2, annexure A is a copy of a letter dated 15 December to this Commission regarding the orders against the party in default under 179(6) of the Industrial Relations Commission Rules 1996". 10 Again we're talking about rules here: "R 201(a) and (b) of the Industrial Relations Commission Rules of 1996. 3, annexure B is a copy of a letter dated 28 November 2005 to the respondent's solicitor requesting a genuine settlement. The respondent failed reasonable counteroffers and failed to settle. 4, annexure C is a copy of the second letter of offer to the respondent dated 21 December 2005 to genuinely settle the matter having failed court orders and directions she failed to settle. 5, on 22 December 2005 before Deputy Registrar Musgrave the respondent admitted being the party in default and was refused a further conciliation date and was ordered to settle the matter or go to arbitration. The respondent again failed to settle. 6, the respondent filed a notice to produce out of time and the applicant opposed the request and filed a notice to produce in reply seeking orders under r 186(1), privileged under the Industrial Relations Commission Rules 1996 and marked as irrelevant in these proceedings. 7, the respondent filed an affidavit one month out of time and the applicant seeks orders against the affidavit under r 179(6) and refused to have it adduced having admitted being the party in default. 8, the applicant filed a Notice of Motion seeking certain orders in which to ask this Court to grant as sought in her application, being the applicant complied with all court orders and directions". 11 So that was the background to the Notice of Motion. I won't attempt to go into detail in respect of the annexures other than the general description given to them in the forwarding affidavit. 12 I must observe, of course, that some of those attachments were not entirely relevant to the question before the Commission today, the claim to have the late filing by the respondent be subjected to a striking out. 13 The two matters sought by Ms Azar here today are: one that the respondent not be allowed to adduce such evidence within the affidavits provided to the Commission and to the applicant on 20 January for failure to follow those directions of O'Neill C. Two, the applicant seeks that notice to produce and for the reasons set out in her affidavit be declined by the Commission. 14 In respect of that timetable referred to by O'Neill C at the end of the conciliation process - I'm not sure whether this was 21 September or 19 October - where the Commissioner gave dates of 23 November for the applicant to file and serve her witness statements; the respondent was given until 14 December to file and serve; and the applicant was given until the 21 December. Note of course that that timetable is in accordance with the usual three weeks for applicants, three weeks for respondents, followed by one week for rebuttal that usually follow those directions. The applicant, I already commented, argued that there was an acknowledgement by the respondent before Deputy Registrar Musgrave when the matter was on for call over on 22 December, that it was in default of the original timetable set. 15 The applicant in these proceedings here today refers to the fact that on 15 December she had written to Deputy Registrar Musgrave seeking what she seeks here today by way of a striking of the late affidavits of the respondent. At that stage the respondent of course, was one day late. 16 The respondent was certainly put on notice though when in proceedings before Deputy Registrar Musgrave their request for further conciliation date was not acceded to on the basis that if the matter did not settle the date ought be set for hearing of the matter, that date of course, was not given by Deputy Registrar Musgrave and the other thing that happened out of the matter was that the respondent sought new directions as to witness statements, which is not insignificant. The deputy registrar made no such orders but appears to have indicated to the respondent that it was already late and ought to get busy with its witness statements. 8 .14/02/06 17 On 19 January there was a notice of listing received by the respondent, that was attachment D to exhibit 3, Mr Mahendra's statement in reply to this Commission which was based on an affidavit provided by Mr Mahendra. 18 Mr Mahendra's affidavit had several attachments and in that affidavit he indicated that on 8 November his firm of Hunt and Hunt received instructions from the respondent. 19 On 10 November his firm advised the applicant's then representatives, Employment Help Lawyers, and attaches a copy of that letter to Mr Boghossian, the principal of that firm. On 15 November Hunt and Hunt was advised by Mr Boghossian of Employment Help Service Lawyers, that his firm was no longer representing the applicant. 20 On 15 November Hunt and Hunt sent a letter to the applicant confirming that they acted for the respondent and enclosing a notice of appearance. On 15 November they asked the applicant for a copy of her affidavit. 21 As already commented on, on 19 November a notice of listing was received by Hunt and Hunt that this matter would proceed on Thursday and Friday of this week, 19 and 20 December. 22 I've already dealt with the issues before Deputy Registrar Musgrave. 23 In my consideration of this matter I have noted that the respondent's affidavit was filed and received by the applicant on 20 January. That aspect is also to be taken into account, along with the change of solicitors, which was advised by notice of appearance on 10 November, and that the applicant's own solicitor changed some days after that. It is also relevant that just before the Deputy Registrar Musgrave proceedings on 20 December, offers were exchanged between the parties. I note though that in the proceedings before Deputy Registrar Musgrave that no further directions were given to him, no specific directions as to filing of witness statements. However, it is clear to me that some urgency was indicated for the respondent to file and serve its witness statements, even thought the date had passed. 24 The offers to settle are not terribly relevant to matters except to say that at least the parties were not inactive and neither was the respondent for that matter, as of 22 December call-over. 25 On 19 January was the first time the respondent (along with the applicant) heard of the hearing dates of 16 and 17 of February for the substantive matter, and of course, one day later filed its reply. 26 I notice now in my consideration of this matter that there is a more stringent requirement as a result of the release of Practice Note 17. That Practice Note was issued on 9 January, so that may be that in future dealings with matters that are late that the Commission Members, such as myself, might have to take a more stringent view as to the failure of respondents to comply with directions and/or to provide adequate explanations for any failure. There is certainly a heightened obligation and that obligation I think has been publicised since the middle of last month. This is not to say though that there has not always been a strict requirement by 13 .14/02/06 Members of the Commission, including the Commission as presently constituted when exercising a discretion to allow some slackness in respect to the filing of material. It is - I must say - from my experience, a discretion which has had to be exercised on a regular basis and the one guiding principle that I have tried to follow surrounds the issue of prejudice. So that issue of what actual prejudice arises should always be a major concern, and perhaps the paramount concern, particularly now that Practice Note 17 is so explicit. I note that the directions which are now issued under Practice Note 17, have been issued since the middle of last month to new parties being allocated hearing dates for arbitration. 27 Mr Mahendra in his submission to the Commission relied upon the Full Bench decision in Sydney Legacy Appeals Fund v Simpson [2003] NSWIRComm 91 in matter number IRC02/5993 a decision of the Full Bench of this Commission, Walton J, Sams DP and Redman C. Prior to that decision being handed down, there was another interesting decision, which was dealt by their Honours and the Commission in that decision, i.e., the Spanish Club Limited v Bounouar (1998) 94 IR 173. The Spanish Club case, of course, was made in specific circumstances but in the Simpson case it might be said that the case distinguished firstly the Spanish Club case and made plain the obligation upon the Commission to proceed carefully in disallowing into evidence matters contained in witness statements although not filed in accordance with the Commission's directions. It goes without saying that such a decision by a Member of the Commission must have a good grounding, such as which faced Sams DP in the Spanish Club case. Otherwise issues of natural justice too easily arise for consideration and can be identified. In Simpsons case, Mr Mahendra drew my attention to some relevant paragraphs, para 12 reads as follows: "In the result, even though the statements of evidence were filed late, they were filed well in advance of any date which was fixed for the hearing of the matter and on any view at a time which gave the respondents to these proceedings ample opportunity to file statements in reply and to prepare for a hearing of the matter. There is a faint suggestion in submissions put by the respondent in the first instance, that it would suffer prejudice if the statements of evidence were received by the Commission but no such contention was seriously pressed before us and nor could it have been having regard to the circumstances of this matter". Para 14 is also relevant: "That approach requires a Member of the Commission to take into account when considering the default of a party in relation to directions issued by it any explanation offered by that party. Here the Commissioner acknowledged that the respondent had offered an explanation and accepted there was a factual basis for it, it should be noted that respondent raised no contrary contention but did not determine whether that explanation was sufficient to excuse the failure to comply with her directions. That represents a failure to take into account a relevant consideration which constitutes an error in discretionary decision making as discussed in House v The King (1936) 55 CLR 499". 28 At para 15 which is another paragraph relied upon by Mr Mahendra, the Full Bench made this observation: "The appellant submitted that the Commissioner did not consider whether the delay in filing the statements of evidence by the applicant necessitated the abandonment of the hearing date and that that factor was significant to any determination of the application by the respondent to exclude the subject evidence. We agree, we consider this another area warranting appellant intervention". 29 It was clearly a relevant consideration which required assessment of the exercise the Commission's discretion, the telling factor against the grant of the application. 30 Whilst I have not received any substantial reasonable excuse for the lateness from the respondent there are some more indirect reasons provided through Mr Mahendra's affidavit related to the change of solicitor; related to the timetabling of this matter; related to the fact that the deputy registrar did not specify new hearing dates; and related to the law vacation. That last aspect of the law vacation, I think the Commission's entitled to take judicial notice of here, not that I think that that is a substantial excuse, but is an indirect factor impacting on the respondent's ability to file on time or soon after the matter was before the deputy registrar. 31 Whilst the respondent should have made greater efforts or to seek a further extension to time, I appreciate that the new system of call overs under Practice Note 17 may have hampered the ability of the respondent to do what has been done for years in the Commission, to seek the relevant Commissioner's approval to new directions. 32 I see no need, therefore, for the hearing of this matter to be delayed and accordingly, that matter number 1 in the Notice of Motion, calling for a striking out of the respondent's witness statements on the basis of late filing, is disallowed. 33 I now move on to give an order in respect of that matter number 1. Order 34 The applicant is directed to provide her rebuttal or her statement in reply to the respondent's affidavit filed here on 20 January within 48 hours served on the respondent's solicitors. No doubt Mr Mahendra will immediately arrange for that material to be provided to his client for their purview before the hearing of this matter which proceeds on Thursday at 10 o'clock. 35 In respect of matter number 2 in the Notice of Motion , which was the claim, which I have already read out in respect of the applicant's request to disallow the notice to produce filed on 11 January, I have gone on record already to indicate to the applicant under s 89(6) the material sought by the respondent was indeed relevant. 36 The notice to produce reads as follows: "The respondent requires you to produce, at level 13, Gateway Building, Macquarie Place, Sydney by Friday 27 January the following documents, originals and copies of all documents, memoranda, reports, notes, records including the records stored in computerised form or any other written material related to all income earned either directly or indirectly by the applicant for the period of 26 August 2005 to date, including but not limited to group certificates, taxation records, cheque books, bank statements, payslips, wage records, employment declaration certificates, receipt books and deposit books. 2, originals or copies of all contracts of employment, contractor agreements and/or other material entered into by the applicant for the period 26 August 2005 to date. 3, originals and/or copies of all documents in relation to the applicant's search for employment as an employee, consultant, contractor or in any other capacity for the period 26 August 2005 to date. 4, originals and/or copies of bank records of the applicant for the period 26 August 2005 to date". 37 I find that those matters are relevant and the applicant has not convinced me otherwise in her submissions. 38 In respect of the last of those, number 4, the bank records, Mr Mahendra, I think that that should not be shown to your client, that you should keep that for your own purview, and if it is necessary to ask the applicant questions about that matter, that you should first flag with me as to whether that information ought to be provided in front of your client. That's to address the applicant's concern as to her privacy in respect of her banking details. Whilst I see it relevant I am still concerned that her private affairs not be aired unnecessarily. I think I have made myself clear that that matter has to be flagged with the Commission further, number 4 that is. 39 In this second matter in respect of the Notice of Motion. that request is denied. 40 Costs are claimed in respect of that and those costs should not be decided by me today. They will be decided along with any other claim towards the end of these proceedings. So, costs, are reserved in that respect. O r d e r 41 The applicant, Ms Azar is to produce the material. In respect of 4 it may be placed in a separate envelope marked, confidential, Mr Mahendra, so that there is no chance of anyone in your office automatically supplying it to the respondent, Mr Mahendra, otherwise the material, the subject of the Notice to Produce should simply be supplied within the next 48 hours as is required by the Notice to Produce. J P MURPHY Commissioner oOo - 1 - 42 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.