Industrial Relations Commission of New South Wales CITATION: Sasha Holdsworth v Moody Kiddell & Partners Pty Ltd [2006] NSWIRComm 1105 APPLICANT Sasha Holdsworth PARTIES: RESPONDENT Moody Kiddell & Partners Pty Ltd FILE NUMBER(S): 1302 of 2005 CORAM: Macdonald C CATCHWORDS: Unfair dismissal application - hearing vacated - dismissal for want of prosecution LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 28/03/05 DATE OF JUDGMENT: 07/10/2006 APPLICANT No Appearance LEGAL REPRESENTATIVES: RESPONDENT Mr Glover, Solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 10 July 2006 Matter No IRC 1302 of 2005 Sasha Michelle Holdsworth and Moody Kiddell & Partners Pty Ltd Application by Sasha Michelle Holdsworth re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1105 1 This Decision concerns an application by Moody Kiddell & Partners Pty Ltd (the Respondent) to dismiss an unfair dismissal application on the ground of want of prosecution. 2 The Respondent's above claim is against Ms Sasha Holdsworth (the Applicant) who filed an unfair dismissal pursuant to s 84 of the Industrial Relations Act 1996 ("the Act"). The Applicant advised the Commission in writing that she was withdrawing from a Hearing of her unfair dismissal application and this causes the Respondent to pursue its claim of dismissal for want of prosecution. BACKGROUND 3 The Applicant's unfair dismissal application was filed on 14 March 2005 and came before myself on 4 April 2005 for Conciliation and Directions. The matter was not settled and was set down for a two day Hearing on 12 and 13 October 2005. 4 The parties filed material for the Hearing except for the Applicant's Right of Reply. 5 However, the Applicant contacted my Assistant on 9 September, to say she had not received the Respondent's witness statements. For the record, the Commission's file contains the originals of the Respondent's witness statements, which were filed on 22 August 2005. 6 Correspondence was received from the Respondent to say that Lesley Terry, HR Manager for the Respondent had hand delivered the Respondent's witness statements on 22 August to Miss Holdsworth's address (which is stated in the correspondence). 7 The Respondent advised my office on 6 October, by telephone, that it had still not received the Applicant's Right of Reply. The Applicant was contacted and she advised that she could not put her Right of Reply as she had not received the Respondent's witness statements. The Respondent was contacted and Ms Terry said that the Respondent's witness statements had been sent three times to the Applicant. 8 Two days before the Hearing, a Notice To Produce was served on the Applicant and also copies of the Respondent's witness statements. The above documents were served on the Applicant at her place of employment. The Affidavit of Service records that the Applicant declined to sign the Acknowledgement Form. 9 The next day, 11 October (and one day before the Hearing), the Commission received a facsimile from the Applicant, who referred to the service of the documentation at her place of employment (in front of her boss) and that she had now been frightened into not "attending the Commission tomorrow", and would be withdrawing her application for unfair dismissal. 10 On the first day of the scheduled two day Hearing, Mr Shoebridge, barrister, appeared for the Respondent. There was no appearance by the Applicant, as promised. Mr Shoebridge foreshadowed a Notice of Motion being filed by the Respondent, seeking dismissal of the unfair dismissal application for want of prosecution and costs. 11 On 17 November 2005, the Commission received a facsimile from the Applicant, being a witness statement setting out the events surrounding the service of documents at her place of employment and the reasons why she was withdrawing her application. The witness statement is dated 12 October 2005. 12 On 14 February 2006, the Respondent filed a Notice of Motion seeking to dismiss the unfair dismissal application for want of prosecution and to seek costs. 13 The matter was set down for Directions on 28 March. 14 The Respondent facsimiled Amended Notice of Motion to my office, advising that the Respondent was no longer pursuing costs against the Applicant. 15 On 27 March, a facsimile was received from the Applicant advising, as before, that she was withdrawing her application and had no intention of taking any further action against the Respondent. 16 At the Directions listing on 28 March, Mr Glover (solicitor) appeared for the Respondent. There was no appearance by the Applicant. 17 Mr Glover put the following submissions on the record: (a) The Respondent sought dismissal of the application for want of prosecution and was not seeking costs. (b) The reason for seeking dismissal for want of prosecution, was to ensure that the Applicant could not pursue her claim at a later stage. That order was sought given the time and resource put in by the Respondent in defending the Applicant's application. 18 Mr Glover also put on the record, his denial of the Applicant's allegation that the Respondent had its solicitors attend upon the place of employment of the Applicant for service of the Notice to Produce and copies of the Respondent's witness statements. Mr Glover stated that that incident was not arranged by the Respondent or its solicitors, but was the conduct of the process server. Indeed, Mr Glover said that his firm had not been retained to perform that task anyway. 19 Mr Glover also rejected the allegation of the Applicant that the only reason why the documents were served on the Applicant at her place of employment, was in order to intimidate and embarrass her. That simply wasn't the case, he said. There had already been attempts to serve the documents on the Applicant prior to the process server appearing at her place of employment. 20 Mr Glover responded to a question from myself, that his client was not seeking a formal hearing on the Amended Notice of Motion. His client relied upon the submissions made on 28 March and written material that would be forwarded to the Commission. This written material was filed on 17 May 2006. CONCLUSION 21 The matter for consideration by the Commission is whether to grant the Applicant's request that she be able to withdraw her unfair dismissal application or the Commission grant the Respondent's submission to dismiss the matter for want of prosecution. 22 In determining that matter the Commission is cognizant that a formal hearing, as such, has not taken place to determine that issue. The Commission is, however, satisfied that it would be unlikely that the Applicant would appear at such a hearing and, in any even, the Applicant had already stated in writing her position as to the standing of her file and this would only be repeated at a hearing. Further, the Applicant would not be disadvantaged by my Decision, in any event. Accordingly, the Commission will exercise its discretion to determine this matter on the material before it. 23 The Respondent has made an application, pursuant to Rule 146 of the Industrial Relations Commission Rules 1996, to have the unfair dismissal application dismissed for want of prosecution. Rule 146 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 of 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." And Rule 147 provides: " 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." 24 For the Respondent, the issue of concern put to the Commission, is that there be a finality to these proceedings. Thus, the Respondent seeks the certain knowledge that the Applicant could not resurrect fresh proceedings against the Respondent. Theoretically, that would be possible if the file was closed on the basis of a withdrawal of the application. That certainty is granted by operation of Rule 147, quoted above. 25 Having considered the material before it, the Commission has decided to discontinue the matter for want of prosecution. In doing so, the Commission relies upon the intention evinced by the Applicant as to the standing of her file. In that regard, the Applicant emailed Mr Glover on 27 March 2006 and said, relevantly, "(I) have no intention of taking any further action against your client on this matter." Given that expressly stated intention and given that it coincides with the Respondent's request that the file cannot be resurrected, then the Commission is comfortably satisfied in meeting the end result of both parties to this matter. 26 Having regard to the material before it, the Commission, pursuant to Rule 146, hereby dismisses Matter No IRC 1302/05 for want of prosecution. 27 These proceedings are concluded. A Macdonald Commissioner 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.