Industrial Relations Commission of New South Wales CITATION: Cush v Department of Infrastructure, Planning and Natural Resources [2006] NSWIRComm 194 APPLICANT Amanda Cush PARTIES: RESPONDENT Department of Infrastructure, Planning and Natural Resources FILE NUMBER(S): IRC 5160 of 2005 CORAM: Staff J Practice and procedure - Unfair dismissal application - Failure by respondent to comply with directions - Application by respondent to vary timetable and for an adjournment of the hearing - Practice Direction 17 - Failure to provide clear and compelling reasons for adjournment - Application for adjournment refused - Directions varied CATCHWORDS: Unfair dismissal application - Failure by respondent to comply with directions - Application by respondent to vary timetable and for an adjournment of the hearing - Practice Direction 17 - Failure to provide clear and compelling reasons for adjournment - Application for adjournment refused - Directions varied LEGISLATION CITED: Industrial Relations Commission Rules 1996 Craig Maguire and Plasdene Glass-Pak Pty Limited [2006] NSWIRComm 112 Dedov v Apollo Life Sciences Ltd [2006] NSWIRComm 55 CASES CITED: Gu v Nature's Care Manufacture Pty Ltd [2006] NSWIRComm 39 Longin v Murphy's Lawyers Inc [2006] NSWIRComm 84 Pritchard v Trident Global Pty Ltd [2006] NSWIRComm 83 Zammit v KTS Logistics Pty Ltd [2006] NSWIRComm 36 HEARING DATES: 06/06/2006 EXTEMPORE JUDGMENT DATE: 06/06/2006 APPLICANT Solicitor: Mr V Dominello Etheringtons LEGAL REPRESENTATIVES: RESPONDENT Ms E Brus of counsel Industrial Relations Co-ordinator: John Robertson Department of Natural Resources JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: STAFF J 6 June 2006 Matter No IRC 5160 of 2005 AMANDA CUSH v DEPARTMENT OF INFRASTRUCTURE, PLANNING AND NATURAL RESOURCES Application by Amanda Cush pursuant to s 84 of the Industrial Relations Act 1996 re unfair dismissal EX TEMPORE DECISION [2006] NSWIRComm XXX 1 This matter has been referred to me by the Industrial Registrar pursuant to practice direction 17 to deal with an application by the Department of Infrastructure, Planning and Natural Resources ("the respondent") to vary the timetable fixed for the filing and serving of material and to vacate the hearing date fixed for 27 June 2006. 2 The background to this matter is that a conciliation conference took place before Commissioner O'Neill on 25 October 2005. The matter did not settle and directions were made by the Commissioner as follows: (i) the applicant to file and serve any material upon which it sought to rely on or before 12 December 2005; (ii) the respondent to file and serve any material upon which it sought to rely on or before 27 January 2006; (iii) the applicant to file any material in reply on or before 24 February 2006. 3 It appears from a perusal of the file that the directions were varied on 31 January 2006 to provide for: (i) the applicant to file and serve any witness statements upon which it sought to rely by 7 February 2006; (ii) the respondent to file and serve its material on or before 28 February 2006; (iii) the applicant to file any material in reply on or before 14 March 2006. 4 The applicant filed an affidavit on which it seeks to rely in these proceedings on 9 February 2006. The respondent filed a document entitled "notice in reply" on 2 March 2006. 5 On 31 March 2006, the respondent sought a further mention of this matter. It foreshadowed it wished to raise the issue of the venue for the hearing. It also sought an opportunity to assess the documentation that had been filed in the proceedings to date. It further foreshadowed applications pursuant to s 162(2)(h) of the Industrial Relations Act 1996 and rule 146(a) of the Industrial Relations Commission Rules 1996. 6 In respect of these issues, the respondent was directed to file a notice of motion, which it did on 13 April 2006. The notice of motion was listed before Commissioner Cambridge on 20 April 2006. Commissioner Cambridge varied the timetable to provide that the respondent was required to file and serve any material upon which it sought to rely on or before 12 May 2006 and the applicant was to file and serve any material in reply by 26 May 2006. The application for vacation of the hearing of 7 June 2006 was granted. The venue which had initially been Armidale was changed to Sydney. 7 I should observe that on 21 April 2006, the applicant filed what she described as an "exhibit folder". 8 Ms E Brus of counsel, who appeared for the respondent, submitted that this matter is now of significant greater dimensions than was initially envisaged by the respondent. Ms Brus submitted that it is more likely that the hearing of this matter will require two to three days, as opposed to the one day that has been fixed for the hearing. In addition, Ms Brus further submitted that there have been extensive settlement discussions taking place between the parties. For those reasons, Ms Brus sought a vacation of the hearing date of 27 June 2006 and a variation of the timetable. 9 Mr V Dominello, solicitor, who appeared for the applicant, strenuously opposed the vacation of the hearing date and variation of the timetable. Mr Dominello submitted that the applicant filed an extensive affidavit on 9 February 2006 and has been put to significant costs in respect of the preparation of this matter. 10 The Commission has observed in a number of recent decisions that practice direction 17 will be strictly applied: Zammit v KTS Logistics Pty Ltd [2006] NSWIRComm 36; Gu v Nature's Care Manufacture Pty Ltd [2006] NSWIRComm 39; Dedov v Apollo Life Sciences Ltd [2006] NSWIRComm 55; Pritchard v Trident Global Pty Ltd [2006] NSWIRComm 83 and Craig Maguire and Plasdene Glass-Pak Pty Limited [2006] NSWIRComm 112. 11 The purpose of practice direction 17 is: … to facilitate the resolution of unfair dismissal matters before the Industrial Relations Commission of New South Wales by ensuring that such proceedings are conducted before the Commission in an efficient and expeditious manner and that practitioners and others who appear before the Commission do all they can to facilitate the just, quick and cost effective disposal of unfair dismissal proceedings before the Commission. 12 Clause 12 of practice direction 17 provides that any directions made in accordance with the practice direction must be complied with by the parties. Any application to vary directions after the conciliation conference must be made in writing and contain full supporting grounds. 13 Clause 13(b) deals with applications for an adjournment of a hearing. It provides that: The day (or days) in which the application will be dealt with by arbitration is definite. Any applications for adjournment of arbitration dates must be made in a timely way, be in writing and contain full grounds. Such applications will be considered and determined by a Presidential Member. It should be understood that adjournment applications will be granted only on clear and compelling grounds. 14 The respondent is in default of directions made by this Commission. The Commission has observed that practice direction 17 applies equally to respondents as it does to an applicant: Longin v Murphy's Lawyers Inc [2006] NSWIRComm 84. In that matter, a respondent was in default of directions made by the Commission. I observed at [13]: … [T]he date for hearing will be retained and if no steps (or late steps) are taken by the respondent to file and serve witness statements, then the Commissioner may properly exercise a discretion to exclude such evidence. 15 In considering the applications that are before me this morning, I firstly turn to consider the application for an adjournment of the hearing, which I have already observed has been fixed for 27 June 2006. I am not satisfied, particularly in light of the history of this matter, that the respondent has made out clear and compelling reasons for the adjournment. The application for relief from unfair dismissal was filed on 6 October 2005. The hearing of this matter has already been adjourned on one occasion and the respondent has been in default of directions made by this court on no less than two occasions. The application for an adjournment of the hearing fixed for 27 June 2006 is rejected. 16 Turning to consider the application to vary the timetable, the respondent was required to serve any additional material on which it sought to rely by 12 May 2006. It remains in default in respect of that direction, some 24 days after the time for the filing of material expired. I am required to balance the interests of justice between the parties in respect of an application such as this. Were I to adopt the approach that I did in Longin v Murphy's Lawyers, this could potentially, in my view, result in some prejudice to the applicant if the respondent were to file material close to the date for hearing. 17 In these circumstances, although the application to vary the timetable is opposed by the applicant, I propose to vary the timetable as follows: (i) the respondent is to file and serve any additional witness statements that it seeks to rely upon on or before 4.00 pm on Wednesday 14 June 2006. In the event that the respondent files material after 14 June 2006, the Commissioner should give serious consideration to excluding such material from being relied upon during the hearing; (ii) the applicant is to file and serve any material in reply on or before 4.00 pm on Friday 23 June 2006. ---------------------- 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.