Industrial Relations Commission of New South Wales CITATION: Rogers Kumar v Sherrick Pty Ltd t.as Cronulla Nursing Home [2006] NSWIRComm 1073 APPLICANT Rogers Kumar PARTIES: RESPONDENT Sherrick Pty Ltd t/a Cronulla Nursing Home FILE NUMBER(S): 2238 of 2005 CORAM: Macdonald C CATCHWORDS: Unfair dismissal application - directions for filing of evidence - no evidence filed - dismissal for want of prosecution LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 14/02/06 DATE OF JUDGMENT: 05/05/2006 APPLICANT No Appearance LEGAL REPRESENTATIVES: RESPONDENT Mr M Diamond DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Macdonald 5 May 2006 Matter No IRC 2238 of 2005 ROGERS KUMAR v SHERRICK PTY LTD t/a CRONULLA NURSING HOME Application by Rogers Kumar re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 JUDGMENT [2006] NSWIRComm 1073 1 This is an application by Rogers Kumar ("the Applicant") for unfair dismissal against Sherrick Pty Ltd t/a Cronulla Nursing Home ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was wet down for Conciliation and Directions on 24 May 2005, before Commissioner O'Neill. The Applicant was represented by a solicitor. 3 The matter had further listings before O'Neill C on 21 June, 21 July, 24 August, 7 and 22 September 2005. On the latter date, a program for the filing of witness statements was put in place. A Hearing date of 14 February 2006 was set. 4 A "Notice of Ceasing to Act", was filed by the Applicant's solicitor on 10 November 2005. 5 Commissioner O'Neill received correspondence from the Respondent's representative, dated 14 December 2005. The Respondent's representative being McCarthy Ausgroup Pty Ltd. Mr M Diamond for that organisation sought that the proceedings be dismissed, as the Applicant had not filed his witness statement which was due on 14 October 2005. 6 The matter was listed "for Mention and Directions of this application before Deputy Industrial Registrar Musgrave" on 24 January 2006. The notification of that callover listing was mailed to the Applicant. The Respondent was also provided notification. There is a handwritten note in the Commission's file, stating that there was no appearance by any parties. 7 The Respondent's representative wrote to Commissioner O'Neill, dated 25 January 2006, seeking that the matter be relisted for further directions with a view that the matter be struck out. 8 Correspondence, dated 6 February 2006, was sent to the parties. The correspondence was authored by "Maria Anastasi for Industrial Registrar." The correspondence (addressed to the Applicant, copy the Respondent) referred to the Applicant's failure to file a witness statement, advice from the Respondent's solicitor that the Applicant had relocated to Melbourne and, in particular, that the Hearing on 14 February 2006 had the particular purpose that the Applicant would have to show cause as to why the matter should not be dismissed for want of prosecution. 9 The Hearing took place on 14 February 2006 before myself, Macdonald C. There was no appearance by the Applicant, in my court room. The Respondent was represented by Mr M Diamond, who called one witness: Barbara Lillian Booty, Principal of Cronulla Nursing Home. 10 Having considered the evidence of Ms Booty and the submission of Mr Diamond, the Commission on that day, issued an Ex Tempore Decision dismissing the unfair dismissal application for want of prosecution. CONSIDERATION 11 The Commission made an Ex Tempore Decision to dismiss the Applicant's unfair dismissal for want of prosecution. 12 Rule 146 of the Industrial Relations Commission Rules 1996 provides: " 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. " 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." 13 In deciding to dismiss the unfair dismissal application for want of prosecution, the Commission had regard to a number of matters. 14 Firstly, the file was initially allocated to O'Neill C who set down a program for the filing of Witness statements. The Applicant did not, and had not by the day of the Hearing, filed his own witness statement. 15 Secondly, the Applicant had been advised by correspondence from the Industrial Registry that his file was set down for a Callover (given that he had not complied with the Commissioner's filing direction, but the Applicant did not appear). 16 Thirdly, the Applicant was mailed correspondence from the Industrial Registry putting him on notice that the Hearing set down before myself on 14 February 2006, had the purpose of the Applicant showing cause as to why his application should not be dismissed for want of prosecution. 17 Fourthly, the Applicant did not appear at the Hearing. The latter statement needs clarification because of evidence given by Ms Booty as to what transpired on that day of the Hearing - in the hallway outside of my court room. Ms Booty gave evidence that the Applicant approached her in the hallway - had a conversation with her - and gave her a handwritten note which became Exhibit 1 in the proceedings. 18 Her evidence was that he said he was not going ahead with his application. He also spoke of other matters which appeared to go to an arrangement he had with the Respondent about an accommodation, being a unit dwelling. 19 The handwritten note (Ex 1) said: " Please note I can't put you through this. Just let your lawyer know to inform the Commissioner that I wish to discontinue. I will advice my lawyers. Rogers And I'll inform you of what's going on with the unit. " 20 Having regard to the foregoing, the Commission, pursuant to Rule 146, hereby dismisses Matter No IRC 05/2238 for want of prosecution. 21 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.