Industrial Relations Commission of New South Wales CITATION: Kimberley Leigh and DS and C Hanison tas Crackle N Spit [2008] NSWIRComm 1040 APPLICANT Kimberley Leigh PARTIES: RESPONDENT DS and C Hanison t/as Crackle N Spit FILE NUMBER(S): 356 of 2008 CORAM: McLeay C CATCHWORDS: Unfair dismissal - shop assistant - teleconference - first conciliation unsuccessful - applicant not available for second or third conferences - notice properly given - no explanation provided - respondent sought dismissal of application - principles considered - no decision as to whether claim was frivolous - application dismissed for want of prosecution. LEGISLATION CITED: Industrial Relations Act 1996 Hakim and Hakcom Investments Pty Ltd & Anor [2004] NSWIRComm 405 CASES CITED: Raymond Hoser v Christopher Hartcher [1999] NSWSC 527 Mealey v Council of the City of Sydney (2004) 132 IR 177 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 DATE OF JUDGMENT: 15 May 2008 APPLICANT Kimberley Leigh (self) LEGAL REPRESENTATIVES: RESPONDENT David Hanison (self) DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: McLEAY C 15 May 2008 Matter No IRC 356 of 2008 Kimberley Leigh and D S and C Hanison t/as Crackle N Spit Application by Kimberley Leigh for unfair dismissal against D S and C Hanison t/as Crackle N Spit pursuant to section 84 of the industrial Relations Act DECISION [2008] NSWIRComm 1040 1 Ms Kimberley Leigh made an application for unfair dismissal following her dismissal by Mr David Hanison from the position of shop assistant. When a resolution was not reached at the first telephone conference on 9 April, Ms Leigh was given time to consider her options. When the second telephone conference was scheduled for 16 April, Ms Leigh could not be contacted. She was then given written and verbal notice of a further conference to be held 14 May. Again, there was no response from Ms Leigh. 2 The written notice of the conference scheduled for 14 May was returned to the Industrial Registry marked "Not at this Adress (sic) Return to Sender". In the interest of fairness to Ms Leigh, further attempts were made to contact her on the telephone number provided by her. She was given verbal advice of the conciliation conference and it was explained to her that her lack of response could lead to her application being dismissed for want of prosecution. 3 At the time of the conference, Ms Leigh did not answer the telephone. The phone rang a number of times before a recoded response was provided and the Registry's number was left for her. Ten minutes later a second attempt was made, this time the phone went directly to the recorded message, indicating that Ms Leigh had turned off the phone in the meantime. The Registry's telephone umber was left a second time. No attempt has been made by Ms Leigh to contact the Registry since then to offer any explanation. 4 Rules 146 of the Industrial Relations Commission Rules provides as follows: 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. 5 It has been accepted by this Commission that the principles applying to applications made under Rules 146 and 147 are those applicable to similar applications made under the Supreme Court Rules: See Koprivnjak and Others v Body Corporate Services (NSW) Pty Limited (1999) 87 IR 49 and Hakim and Hakcom Investments Pty Ltd & anor [2004] NSWIRComm 405. 6 The relevant principles were summarised by Simpson J in Raymond Hoser v Christopher Hartcher [1999] NSWSC 527 and adopted by Staff J in Hakim v Hakcom Investments at [24] as follows: 1. The ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited , unreported, 19 November 1995, per Sperling J. 2. The discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of discretion: Stollznow v Calvert . 3. Any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J. 4. Personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73. 5. A defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. Calvert v Stollznow, 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, par 13,022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestly JA. 6. Delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor; Calvert v Stollznow, per Cross J; Burke v TCN. Simpson J observed that in her view, this circumstance must be treated with some caution, noting that the weight that can be accorded to that delay is limited. 7. The onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise. 8. Prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay. 9. What the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. 10. The plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred), it is less likely that justice will be done by striking the action out: Razvan, per Kirby P. 11. The exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice. 7 I will consider each principle in turn, as it relates to the present proceedings. 8 In considering the first of these principles, it is relevant that Ms Leigh has not taken the opportunity to argue her case. The respondent, on the other hand, has expressed his concern about her motivation to harm his business. He has claimed stress on himself and his business arising from the application and the lack of cooperation from Ms Leigh in pursuing her claim. On balance, justice is best served by dismissing the application. 9 The second principle acknowledges the discretion available to the Commission to determine whether or not to dismiss a matter for want of prosecution. I am satisfied that this is a clear case where exercise of discretion is manifestly warranted, as the applicant has made no effort to contact the Commission, despite being present (by telephone) at the first conciliation when the date was set for the second conference just one week later and having made no attempt then or since to contact the Commission. 10 No explanation has been offered for the delay occasioned by the applicant's unavailability on 16 April. 11 The applicant appeared on her own behalf and did not suggest that she had received any legal advice or instruction. It follows that she was acting and continues to act on her own behalf and must accept responsibility for all that flows from her inaction in the matter. 12 The respondent has not caused the delay. He cannot be said to be guilty of inaction when he has responded to the requests of the Commission in a proper way. At the first conference he undertook to provide the applicant with copies of documents, and he did so. Similarly, the sixth principle is not relevant because there was no unusual time delay between conferences. 13 As to the seventh principle, no unusual circumstances are known to the Commission. On the other hand, the applicant has had ample time to provide any relevant information or explanation as to prejudice. She was put on notice that her application may be dismissed, and has not responded. She has not fulfilled the onus to establish prejudice. 14 The balance of prejudice to the respondent against the prejudice to the applicant has been considered. In the absence of any explanation I am satisfied that it is appropriate to strike out the application without any further time passing. 15 The applicant has taken no action beyond preparing her application and participating (by telephone) in the first conciliation conference. 16 The respondent, on the other hand, completed the Employer's Reply and provided to the Commission statements signed by a number of people as to the circumstances surrounding Ms Leigh's dismissal, including words spoken by Ms Leigh and actions taken by her both before and after her dismissal. While these documents are not yet in evidence, the respondent has provided copies of them to the applicant, on the day of the first conference. It may well be that knowledge of their content may have led Ms Leigh to consider that her claim was futile. I am satisfied that, at the earliest stage of proceedings, that is, following the first conciliation conference, on 9 April, Ms Leigh's prospects of success did not look good. 17 Despite the prospects, the matter was set down for further conciliation and then again, when the applicant did not appear, there was no attempt by the Commission to strike out the matter or to discourage the applicant with pursuing her claim through the conciliation process. It was only after the applicant's failure to pursue her claim, by way of her non-attendance at the teleconference on 16 April, that she was warned that the matter could be dismissed for want of prosecution and she was given a further opportunity on 14 May. 18 In Mealey v Council of the City of Sydney (2004) 132 IR 177 at [51], the Full Bench, after considering r 146 observed: We wish to make two further observations. Rule 146 requires a finding that a party "has not pursued the proceedings with due diligence". In considering any application for want of prosecution it is important to make a proper assessment as to whether the history of the proceedings warrants such a conclusion… 19 In this case, the history of the matter is brief and the requirement on the applicant was simple. Because the employment had taken place in Port Macquarie, teleconferencing facilities were made available by the Commission and used by both the applicant and the respondent on the first occasion. In order to pursue her claim with due diligence, Ms Leigh was required to be available to take a call at the number provided by her, or to provide an alternate number, in similar style as she did a week earlier. She did not attend the teleconference, on two consecutive occasions. The time and date of the second conference was set at the first conference, for the same time and day a week later. There could be no misunderstanding by Ms Leigh. In fact, there has been no contact from her since 9 April. The time and date of today's proceedings were provided to her verbally when the written notice was returned to the Registry, and she confirmed her availability at that time. Nonetheless, she did not answer the call when it was made, even though two attempts were made to contact her, at the appointed time and again ten minutes later. 20 As part of the history of the case, it is relevant to note that Ms Leigh answered her telephone when the call from the Registry was not expected, resulting in the verbal notification of the listing on 14 May. However, she did not answer the calls when they were expected, on 16 April and again on 14 May. It is also of interest that the handwriting on the returned notice was similar in writing style and spelling to the original application completed by Ms Leigh. 21 In State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, the High Court observed at 154: …Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. 22 The Commission attempts to assess matters expeditiously, while bearing in mind the need to ensure, as far as practicable, that natural justice is afforded to the applicant. In this case Ms Leigh she has not shown an interest in progressing her own matter. The respondent has expressed his concern that Ms Leigh is acting only to cause trouble to him and has claimed that the application was frivolous. While I have made no finding on that issue, I m satisfied that no justice can be attained for either the applicant or the respondent under the present circumstances where Ms Leigh has thrown away all opportunities to pursue her claim. 23 Because Ms Leigh has not made herself available for conciliation when required to do so and has not otherwise pursued her application with due diligence, and taking into account the established principles in such circumstances, pursuant to rule 146 I dismiss the application for want of prosecution. ************* 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.