Vadim Dedov and Apollo Life Sciences Limited [2006] NSWIRComm 159

Industrial Relations Commission of New South Wales

CITATION: Vadim Dedov and Apollo Life Sciences Limited [2006] NSWIRComm 159

APPELLANT: Vadim Dedov PARTIES: RESPONDENT: Apollo Life Sciences Limited

FILE NUMBER(S): IRC 1496 of 2006

CORAM: Walton J Acting President; Sams DP; Grayson DP

CATCHWORDS: Appeal - unfair dismissal application - dismissal for want of prosecution - practice and procedure - Practice Direction 17 - consent arrangement - relevant principles - reservation as to leave - disclosure of all circumstances in application for strike-out - no procedural unfairness - leave granted - appeal upheld - remitted to Industrial Registrar.

HEARING DATES: 05/05/2006 EXTEMPORE JUDGMENT DATE: 05/05/2006

Appellant: Mr C Cunio, Solicitor David Landa Stewart LEGAL REPRESENTATIVES:

Respondent: Mr A Gray, Solicitor Mallesons Stephen Jaques

JUDGMENT:

- 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, ACTING PRESIDENT SAMS DP GRAYSON DP FRIDAY, 5 MAY, 2006

Matter No. IRC 1496 of 2006 Vadim Dedov and Apollo Life Sciences Limited.

Application by Vadim Dedov for leave to appeal and appeal against decision of Justice Staff given on 21.12.2006 in Matter No IRC 6365 of 2005.

DECISION OF THE FULL BENCH [2006] NSWIRComm 159 Ex tempore

1 In an ex tempore decision given on 21 February 2006, Justice Staff dismissed, upon application by the respondent, an application by the appellant made under s84 of the Industrial Relations Act, 1996 for want of prosecution. 2 The appellant had failed to comply with directions and to attend upon either a compliance call-over before the Industrial Registrar or the proceedings before his Honour. 3 It may be thought that his Honour's decision in this respect was quite unremarkable. His Honour properly commented upon the purpose of Practice Direction 17 and relied upon the relevant principles in this context which had been correctly stated in Zammit v KTS Logistics Pty Ltd [2006] NSWIRComm 36. 4 However, the appellant moves the Commission to uphold the appeal today with the consent of the respondent and with the support of an affidavit essentially pleading solicitor mistake and a failure by the respondent to disclose a relevant matter in the compliance proceedings before the Industrial Registrar and his Honour. 5 We have given active consideration to rejecting the consent arrangement and requiring the appellant to put his case. There is a real question as to whether leave should be granted to bring the appeal. By a fine margin we have, however, decided to grant leave to appeal and make orders largely in conformity with the agreement of the parties, given that this is the first appellate review of a decision made in the context of the operation of Practice Direction 17, and further, having regard to the issues of disclosure raised in the submissions and evidence of the appellant. 6 We wish to observe that we do not agree with the written submission advanced by the appellant in support of the appeal that there was a denial of natural justice as a result of the matter proceeding before his Honour without notice to the appellant. 7 Practice Direction 17 makes clear that, if a party to a proceeding has not complied with a step required in directions given by the Commission, the matter will be listed for a compliance call-over before the Industrial Registrar (cl 7(d)). Notice of that call-over is provided at the point the matter is fixed for hearing (cl 7(c)). There is no dispute that such notice was given in this case. Parties to s 84 proceedings are also advised by the Practice Direction that the matter may be remitted to a Presidential Member of the Commission by the Industrial Registrar in a compliance call-over (cl 7(e). Save for the failure to provide the notice required under cl 7(c), this should be sufficient notice that a failure to comply may result in a listing before a Presidential Member in which various options will be considered, including the dismissal of the proceedings (see cl 7(e)(iv) and Rule 146). A failure to appear by a party simply gives rise to the prospect of an ex parte hearing. No infringement of procedural fairness arises. 8 We also wish to advise that parties would be mistaken in proceeding upon the basis that settlement discussions obviate the need to strictly meet the requirements of Practice Direction 17, unless an alleviation of the programme is granted by the Commission on this basis. 9 The parties sought that directions be made to programme Matter No IRC 6365 of 2005 for hearing. We propose to do so, but make a short and strict timetable for the appellant and also make guillotine orders. 10 We make the following orders: 1. Leave to appeal is granted; 2. The appeal is upheld; 3. The orders made by Staff J on 21 February 2006 are set aside; 4. The appellant shall file and serve the evidence required by the usual directions in cl 10(ii) of Practice Direction 17 on or before 4 pm Monday 8 May 2006. Upon a failure to file and serve that evidence by that time and date, we order that the application in Matter No IRC 6365 of 2005 be dismissed for want of prosecution; 5. The usual directions shall otherwise operate in accordance with cl l0 of Practice Direction 17. We also make as orders and directions each of the orders in cl 11 of Practice Direction 17. 6. Upon the filing and service of the evidence of the application in accordance with order 4 hereof, we grant leave to the appellant to issue summons in accordance with the Rules of the Commission. 7. The application in Matter No IRC 6365 of 2005 is remitted to the Industrial Registrar to be proceeded with in accordance with Practice Direction 17.