Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1

Industrial Court New South Wales

Medium Neutral Citation: Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1 Hearing dates: 14 August and 20 October 2015 Date of orders: 10 February 2016 Decision date: 10 February 2016 Before: Walton J, President Decision: The appellant shall file and serve further submissions in writing as to the relief claimed (and any amended orders sought) with seven days of this judgment and any reply by the respondent shall be filed and served within a further seven days. Accordingly, I direct that the appellant file and serve any further submissions as to the relief claimed in the light of this judgment on or before 4pm 17 February 2016 and the respondent to file and serve any further submissions in that respect on or before 4pm 24 February 2016. Any further judgment as to orders to be made in the disposition of the appeal will be undertaken on the papers unless there is an application for a short oral hearing or the Court forms a view that it would be assisted by further oral submissions of the parties. Catchwords: APPEAL – dismissal – public sector appeal – application dismissed for want of prosecution – appeal under s 197B(1) – decisions on questions of law – Civil Procedures Act – Uniform Civil Procedure Rules – principles governing exercise discretion under r 12.7 – decision on questions of law – whether error in having regard to Aon Risk Services – whether error in having regard to interests of other litigants and court – whether failed to distinguish Aon Risk Services – whether failure to have regard to absence of scheduled hearing or hearing for first time – whether justice demanded dismissal after balancing the prejudice to each party – dictates of justice – whether failure to have regard to dismissal valid claim resulted in foreclosure of any further proceedings by appellant constituted error – actual and presumptive prejudice to respondent – errors of law – having regard to wrong question – failing to have regard to relevant considerations – directions made to settle orders Legislation Cited: Civil Procedure Act 2005 Court Procedures Rules 2006 (ACT) Government Sector Employment Act 2013 Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 Industrial Relations Commission Rules 2009 Uniform Civil Procedure Rules 2005 Cases Cited: Al-Shennag v Woodcock [2013] NSWSC 696 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61 Bailey v Commissioner of Police [2014] NSWIRComm 53 Bi v Mourad [2010] NSWCA 17 Bridie v Messina [1965] NSWR 332; (1965) 66 SR(NSW) 446 Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 Chivers v Commissioner of Police [2014] NSWIRComm 7 Dank v Cronulla Sutherland District Rugby League Football Club Limited [2014] NSWCA 288 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 Fleet v State of New South Wales [2009] NSWSC 75 Gold & Copper Resources Pty Ltd v Minister for Resources & Energy & Anor [2014] NSWLEC 169 Hanshaw v Seven Network (Operations) Ltd 2014 [NSWSC] 623 Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 Hoser v Hartcher [1999] NSWSC 527 Industrial Relations Secretary v Fraser No 2 [2015] NSWIRComm 10 Land v Land [1949] P.405 Lee & Ors v Keddie & Ors [2009] NSWSC 777 McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308 Mhanna v Daoud [2014] NSWCA 376 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Nandini Fonseka v Epic Hotels Pty Limited Owens v Minoprio [1942] 1 K.B. 193; [1942] 1 All ER 30 Pacanowski v Simon Wakerman & Associates [2009] NSWCA 402 New South Wales v Mulcahy [2006] NSWCA 303 PSA v Secretary of Treasury [2014] 242 IR 318 Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40; 86 NSWLR 749 Queensland v J L Holdings [1997] HCA 1; (1997) 187 CLR 146 Sali v SPC Ltd (1993) 116 ALR 625 Sanders-Pattinson v Brown [2013] NSWCA 137 Snow v Snow [2015] NSWSC 90 State of New South Wales v Plaintiff A [2012] NSWCA 248 Stollznow v Calvert (1980) 2 NSWLR 749 Tawil v Public Trustee of NSW; Estate of Michael Pavlovich Biriukoff [2009] NSWSC 256; (2009) 2 ASTLR 317 Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank – A Division of Westpac Banking Corporation and Ors (No. 2) [2011] NSWSC 1122 Wakim v Tadros [2011] NSWSC 308 Worldwide Corporation Ltd v J P T Ltd [1998] EWCA Civ 1894 Category: Principal judgment Parties: Joanne Kelly Beavan (Appellant) Family and Community Services (Housing NSW) (Respondent) Representation: Counsel: Mr A T Britt (Appellant) Ms K A Edwards (Respondent)