Industrial Relations Commission of New South Wales CITATION: Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 4) [2007] NSWIRComm 51 APPLICANT Elka Simjanovska PARTIES: RESPONDENT Roads and Traffic Authority of New South Wales FILE NUMBER(S): 4554 of 2005; 2762; 3138 of 2006 CORAM: Sams DP CATCHWORDS: Application to adjourn proceedings - comprehensive medical report provided - no medical evidence to the contrary - medical report accepted - adjournment sought on conditions - unsatisfactory state of proceedings - considerable costs already expended - proceedings adjourned indefinitely until medical clearance is received - undertaking to be given by applicant as to willingness to proceed - no further directions to be issued - no hearing dates listed - orders as to no new interlocutory matters to be initiated until clearance is received - proceedings adjourned indefinitely. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 8 March 2007 DATE OF JUDGMENT: 8 March 2007 APPLICANT No appearance LEGAL REPRESENTATIVES: RESPONDENT Ms J Nand Spark Helmore Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 8 March 2007 Matter No IRC 4554 of 2005 and 2762, 3138 of 2006 Elka Simjanovska and Roads and Traffic Authority Applications by Elka Simjanovska for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996 DECISION [2007] NSWIRComm 51 1 The Commission has listed these matters for hearing today, following my refusal, inter alia, on 6 March 2007, to accept an adjournment application, filed by the applicant in these proceedings, on the grounds of illness. 2 At that time the Commission expressed concern with the lack of detail in the medical certificate and directed as follows: The applicant will be permitted to reagitate her request for an adjournment based on any further medical evidence in the form of an affidavit from her doctor and his attendance in Court or a more detailed medical report to be provided by 10am on 8 March." 3 Today, at 8.30am, the applicant provided by facsimile a comprehensive and detailed medical report from her GP, Dr Blagoj Kuzmanovski. The applicant did not attend the proceedings in person. For reasons of privacy, I do not intend to canvas the report's details, suffice to say that I am satisfied that this report complies with my directions of 6 March 2007. 4 I also accept that this report is prima facie evidence of the applicant's unfitness to prepare for, and attend the substantive proceedings, notwithstanding that I query the doctor's comment that "she finds it extremely difficult to concentrate and write any official material". I do not see how that comment sits comfortably with the large amount of documentary material filed by the applicant during her period of illness, including as late as today, in a two page letter received by the Commission. 5 Nevertheless, in the absence of any medical evidence to the contrary, I am obliged to accept this report and act accordingly in the interests of justice. 6 The applicant proposed the following course of action in respect to the future of these proceedings: (1) An extension for the filing of my evidence in reply until the day after Tuesday 15 May 2007 at 4pm, or, alternatively, a date to be determined by the Commission after I provide a medical report that I am fit to prepare and conduct my proceedings. (2) To vacate the hearing date said to commence on 8 March until at least two weeks after filing my evidence in reply, a date to be determined by the Commission, after I have provided a medical report that I am fit to prepare and conduct the proceedings. 7 Ms Nand, for the respondent submitted that any adjournment, should the Commission be minded to grant it, should be on the following conditions: The hearing of the substantive proceedings and all existing and any new interlocutory proceedings be adjourned until the applicant produces a medical report from Dr Kuzmanovski certifying that she has had all the necessary tests and treatment arising from his report of 7 March 2007. The future of the adjourned appeal proceedings before the Full Bench, are of course, are a matter for the Full Bench. 8 While accepting that the present application for an adjournment is understandable in light of the medical report received, I am not prepared to allow the present unsatisfactory state of affairs, in respect of these matters, to continue. It is not in the interests of ensuring justice to both parties to have the respondent incur ongoing costs and time in preparing for the substantive proceedings, only to have them fall at the last minute; not to mention the disruption caused to the Commission's case management. This will be the third occasion the hearing has been adjourned. 9 It is no answer, of course, to suggest, (as the applicant frequently does), that the RTA has unlimited resources, funds and personnel available to be waged against a self-represented litigant. There can be no doubt the respondent has incurred considerable cost in defending these proceedings and the many associated interlocutory matters. This is a cost borne by the New South Wales taxpayer and there is clear public interest consideration in ensuring litigation such as this is brought to finality as efficiently and as cost effectively as possible, while at all times ensuring the interests of justice are served. Moreover, the Commission is obliged to have regard to the provisions of ss 162 and 163 of the Act to act as "quickly as is practicable", and "according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms". 10 Accordingly, I order the adjournment indefinitely of all current proceedings before me, until such time as the Commission receives a medical clearance from the applicant's doctor, and a written undertaking from her that she is willing and able to proceed on the respondent's Notice of Motion filed 28 February 2007 and any outstanding summonses to produce. The practical consequence of this decision is that no further directions will be issued in respect to any interlocutory matter, the filing of the applicant's evidence in reply, or the setting of dates for the substantive hearing. 11 I propose to further order that no new summonses, notices of motion or any other initiating process be commenced by either party until the medical clearance and undertaking is received by the Commission. 12 Finally, the applicant should be under no illusion that further proceedings for the final determination of her claims of alleged victimisation are entirely her responsibility. Notwithstanding the applicant's current medical condition, which I accept, and which is most regrettable, the delays and prevarications so far occasioned have been largely brought about by the applicant's own conduct and refusal to accept the Commission's rulings as to the orderly conduct of the proceedings. Had the matter been heard and concluded in December 2006, when it was originally listed, the Commission may well have published a decision by this time. 13 These proceedings are adjourned indefinitely on the basis I have earlier ordered. Peter J Sams, AM Deputy President 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.