Industrial Court of New South Wales CITATION: Suzanne Burrows v Attorney General's Department of New South Wales [2010] NSWIRComm 15 PARTIES: Suzanne Burrows (Applicant) Attorney General's Department of New South Wales (Respondent) FILE NUMBER(S): IRC3535 of 2006 and IRC1501 of 2009 CORAM: Kavanagh J RECOVERY OF MONIES - Matter No IRC 1501 of 2009 - application under s 365 of the Industrial Relations Act 1996 - application brought by respondent after no appearance from applicant on first day of hearing on grounds: failure to prosecute; absence of evidence - application dismissed for both want of prosecution and failure to provide evidence in support of claim - some claims out of time under s 369 - costs awarded against applicant CATCHWORDS: DECLARATORY RELIEF - Matter No IRC 3535 of 2006 - dispute re employment conditions, claim absorbed into Matter No IRC 1501 of 2009 after termination of employment - costs awarded against applicant LEGISLATION CITED: Industrial Relations Act 1996 Civil Procedure Act 2005 Building Insurance Guarantee Corporation v Tooma (2010) NSWSC 4 CASES CITED: General Steel Industries v Commissioner for Rail NSW (1964) 112 CLR 145 Queensland v J L Holdings Pty Limited (1997) 189 CL 146 HEARING DATES: 12, 13 April 2010 EXTEMPORE JUDGMENT DATE: 14 April 2010 No appearance (Applicant) LEGAL REPRESENTATIVES: Ms E Brus of counsel (Defendant) Crown Solicitor's Office JUDGMENT: - 8 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: KAVANAGH J Wednesday 14 April 2010 Matter No IRC 3535 of 2006 SUZANNE BURROWS v ATTORNEY GENERAL'S DEPARTMENT Application under s154 of the Industrial Relations Act 1996 Matter No IRC 1501 of 2009 SUZANNE BURROWS v ATTORNEY GENERAL'S DEPARTMENT Application by Suzanne Burrows for recovery of money under s365 of the Industrial Relations Act 1996 EX TEMPORE JUDGMENT [2010] NSWIRComm 15 1 HER HONOUR: Two matters were listed for hearing over the five days from 12 - 16 April 2010: · Matter No IRC3535 of 2006 is an application brought by Ms Burrows under s 154 of the Industrial Relations Act 1996 ("the Act") for declaratory relief. The only question remaining in that matter is a question of costs. I will come back to that issue. · Matter No IRC1501 of 2009 is an application filed by Ms Burrows under s 365 of the Act for the recovery of monies. As to that application, the respondent moves for dismissal on the following grounds: 1. Ms Burrows has failed to prosecute her claim; and 2. There is an absence of evidence in support of her claim. 2 The respondent makes the above application after there was no appearance from Ms Burrows. I determined to hear the application of the respondent on the second listed day of the hearing with attempts being made overnight to notify Ms Burrows of the respondent's application. (I was later notified that Ms Burrows had informed the Registry at approximately 9.22 am that she would not be attending the proceedings and added "I therefore assume that her Honour will discontinue proceedings today and make orders against me"). History 3 It is necessary to recite the history of this litigation. Ms Burrows brings these applications arising from a dispute as to her conditions of employment with the Attorney General's Department of New South Wales. Matter No IRC 3535 of 2006 was filed for declaratory relief on 23 November 2006. While that matter was on foot her employment was terminated on 11 December 2007. The case was not pursued as, following her termination, Ms Burrows pressed other proceedings in the Government and Related Employees Administrative Tribunal (GREAT) and also before the District Court. She then revived Matter No IRC 3535 of 2006. 4 Ms Burrows also filed another matter, Matter No IRC 2105 of 2007 against the same respondent which went to hearing before Schmidt J who published two associated judgments, one on 4 March 2008 and the other on 13 October 2008. (The latter judgment related to costs orders arising from the first judgment). 5 The file reveals Matter No IRC 3535 of 2006 was first mentioned on 7 December 2006. The file was then mentioned on 12 occasions in 2007 and 12 times in 2008. A five day hearing was the listed, but adjourned. 6 On 3 July 2009, after Schmidt J took up duties on the Supreme Court of New South Wales, Matter No IRC 3535 of 2006 was referred to me. Further mentions occurred and a conciliation was conducted. Arising out of that conciliation, Ms Burrows filed Matter No IRC 1501 of 2009 on 24 September 2009 which matter was an application for the recovery of monies. That left in Matter No IRC 3535 of 2006 the question as to costs as the only outstanding issue. All outstanding claims were absorbed into Matter No IRC 1501 of 2009. 7 The respondent seeks to strike out Matter No IRC 1501 of 2009, the application for the recovery of monies for want of prosecution and a failure to file evidence in support of the claim/claims. 8 After filing Matter No IRC 1501 of 2009, a timetable was set down for filing of the evidence by the applicant. Ms Burrows did not originally comply with these directions. The Court granted an extension. Once again there were some difficulties, but she filed a considerable amount of material on 5 February 2010. Further questions were raised by the respondent. Ms Burrows then asked that material filed in the earlier proceeding be tendered in Matter No IRC 1501 of 2009. They are on the record marked Attachment "A" (as revised and initialled by Ms Burrows). The applicant did not complete serving all her materials until 22 March 2010. The Court was careful in noting (on the transcript) at each mention (on 15 February and 24 March 2010) confirmation of the hearing dates. On 12 April 2010, the first hearing date, Ms Burrows failed to appear. The respondent submits the applicant has repeatedly failed to diligently prosecute her application. Consideration 9 Parties to litigation are required to prosecute their complaints both diligently and in accordance with court orders. Prior to the amendment, in late 2009, to the Industrial Relations Commission Rules 1996, Regulation 146 applied: 146 Want of prosecution 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. 10 In relation to proceedings under the Industrial Relations Act 1996, the Court adopted the civil procedures set out in the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005. The new procedures applies to all current and new matters before the Court. Under the Uniform Civil Procedure Rules dismissal of proceedings for want of prosecution as a circumstance is covered by Pt 12 div 3 r 12.7, which states: 12.7 Dismissal of proceedings etc for want of due despatch (cf SCR Part 5, rule 12, Part 32A, rules 1 and 2; DCR Part 18, rules 3 and 9; LCR Part 17, rule 4) (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. … 11 The conflict between the rules related to case management and the question of whether a litigant is diligent in prosecuting one's claim has been given judicial consideration. In The State of Queensland and Anor v J L Holdings Pty Limited (1997) 189 CL 146 there was consideration given to the pressure on the courts given the increase in litigation and the necessity for courts to conduct their business efficiently under the Rules and balancing this obligation with the rights of a litigant. In J L Holdings, their Honours Dawson, Gaudron and McHugh JJ made comment (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 … 12 Recently, Harrison J in Building Insurers' Guarantee Corporation v Touma (2010) NSWSC 4 considered the effect of the relevant practice and procedure rules now applicable. He was considering whether a defence should be struck out. Conveniently, however, he considered the effect of the new Rules and made some general statements of principle at [29] - [31] of his Honour's judgment: 29 The cases are principally concerned with the dismissal of proceedings in circumstances where a plaintiff does not prosecute them with due despatch. Delay is said to be the threshold circumstance that enlivens the power, although the significance of delay is to be considered in the particular circumstances of the case involved. Some English authorities dealing with the power to dismiss an action for want of prosecution have suggested that the power should be exercised only where a plaintiff's default has been intentional and contumelious or where there has been inordinate or inexcusable delay giving rise either to a substantial risk that a fair trial would not be possible or to a risk of serious prejudice to the defendant. In New South Wales this prescription has been rejected as unduly restricting the true scope of the power to strike out for want of prosecution: Stollznow v Calvert [1980] 2 NSWLR 749; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274. 30 The latter case was one of multiple failures to comply with directions. It held that the English authorities relating to the exercise of a discretion to dismiss proceedings for default do not form part of the law of New South Wales so far as they restrict the exercise of the discretion. 31 The plaintiff's present application is informed by the Civil Procedure Act 2005 and in particular the following sections: " 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) ... (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. 59 Elimination of delay In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. 61 Directions as to practice and procedure generally (1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (2) In particular, the court may, by order, do any one or more of the following: (a) it may direct any party to proceedings to take specified steps in relation to the proceedings, (b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed, (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate. (3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following: (a)... (c) it may strike out any defence filed by a defendant, and give judgment accordingly, (4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court." His Honour, having considered the effect of the Act and Rules, concluded at [34]: (the question is whether) there are grounds, in the interests of justice, for granting relief … 13 I am satisfied the applicant's claim in Matter No IRC 1501 of 2009 should be dismissed. Ms Burrows has not attended to the preparation of her claims in a timely way and has disregarded her obligations to conform with the Court's directions on many occasions. 14 In my view the respondent has paid the applicant many courtesies and this litigation has become a problem not only for the applicant (who has failed to attend to litigate her claim) but also for the respondent and for the Court. Hearings in the associated matter have been adjourned by the applicant and she has, on occasions, not appeared. The respondent in the circumstance has been largely unarmed with any power to control what has occurred. This Court has that power. I find the applicant has failed to prosecute her case and, in the interests of justice, the case should be dismissed. 15 A further ground is relied upon by the respondent, namely: the claim is not supported by the evidence. It is not necessary to consider this ground but I do so and am ably assisted by some considerable work put into submissions by the respondent as to the state of the evidence. I intend to adopt those submissions, having cross checked various references (which might read as obscure) which I find correct. The evidence before me is as follows: · Attachment "A" to the materials that the applicant filed on 5 February 2010 sets out the particulars of the applicant's claim for the recovery of wages. It sets out a series of dates from 1998 to 2007. The essence of her claim is the assertion that on the dates particularised where leave was granted (or not granted) the decision of the respondent, in the circumstance, was incorrect. So, for example, if the leave was identified as holiday pay that was incorrect and Ms Burrows contends she should be reimbursed that payment. · Attachments "B" and "S" to Attachment "A" deal exclusively with an injury sustained by the applicant when she was employed at the Supreme Court. The respondent submits the claim during this period of employment is "out of time" within the meaning of s 369(3) of the Industrial Relations Act, in that some claims particularised pre-dates the period six years prior to the claim first being made in Matter No IRC 3535 of 2006. (The applicant was advised of the provision of s 369(3) as revealed in transcript on 15 February 2010. This advice was confirmed to her in writing by the respondent on 9 March 2010). The applicant was invited to amend her application but she has not done so. · Attachment "T" consists of some 48 documents, none of which appear to relate to any of the dates claimed in the particulars. · Attachment "U" deals with one of the dates claimed - 25 July 2001, but in general terms only. · Attachment "V" does not appear to relate to any of the dates claimed. · Attachment "W" deals with a s 38 workers compensation matter. · Attachment "Y" also deals with a workers compensation matter. · Attachment "Z" relates to a date claimed - 30 May 2003. That document does not seem to relate to the "z1" document that was to be relied upon. 16 The applicant bears the onus of proof in support of her claim. On 7 August 2009, Ms Burrows assured the Court she had evidence sufficient to support each of the claims she was pressing. She assured me that she had Medical Certificates, WorkCover Certificates and/or diary notes to support each claim. She was given every further opportunity this year to file documents in support of her claim but has filed no further documentation. 17 I am conscious of the cautionary approach that must be taken by the Court in dealing with such an application (see General Steel Industries Inc. v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125) and that the respondent does not lightly press its application. 18 However, the material filed, on my examination, does not give prima facie support to the claims mounted by the applicant. I therefore dismiss the claims in Matter No IRC 1501 of 2009. 19 The applicant shall pay the respondent's costs of preparation of Matter No IRC 1501 of 2009 including costs for two days of the hearing set down for five days. 20 That leaves me with the one outstanding issue which is the matter of costs in Matter No IRC 3535 of 2006. Once again I am assisted by an analysis of the Court records conducted by the respondent. In an attempt to be fair to Ms Burrows, I allow the respondent: · costs of the Mentions in this matter where there was no appearance by Ms Burrows; · costs for 1 to 4 May 2007 where a hearing was adjourned on the application of Ms Burrows; · costs for 5 and 6 February 2008 where the matter was listed for hearing and there was no appearance by Ms Burrows; · costs for 12, 13 and 14 February 2008 where there was no appearance by Ms Burrows when the matter was listed for hearing; and · costs for 21 - 25 July 2008 for five days where a hearing was again adjourned. 21 The claim as pleaded in Matter No IRC 3535 of 2006 is otherwise dismissed. 22 These matters are now finalised. Orders 1. Matter No IRC 1501 of 2009 is dismissed. The applicant shall pay the respondent's costs of preparation of Matter No IRC 1501 of 2009 including costs for two days of the hearing. 2. Matter No IRC 3535 of 2006 is dismissed. The applicant shall pay the respondent's costs of the Mentions in this matter where there was no appearance by Ms Burrows: · costs for 1 to 4 May 2007 where a hearing was adjourned on the application of Ms Burrows; · costs for 5 and 6 February 2008 where the matter was listed for hearing and there was no appearance by Ms Burrows; · costs for 12, 13 and 14 February 2008 where there was no appearance by Ms Burrows when the matter was listed for hearing; and · costs for 21 - 25 July 2008 for five days where a hearing was again adjourned. 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.