Industrial Relations Commission New South Wales Medium Neutral Citation: Kabir v Department of Family and Community Services [2016] NSWIRComm 1009 Hearing dates: 17 March 2016 Date of orders: 18 March 2016 Decision date: 18 March 2016 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – lack of due dispatch – medical certificates do not cover lengthy periods of inaction – no explanation for lengthy period in which case not prosecuted – prospects in substantive case poor – application dismissed STRIKE OUT APPLICATION – lack of due dispatch – tests – balancing exercise – balancing of prejudice to be suffered by applicant and respondent – loss of ability to pursue claim – loss of witness memory – use of resources – prejudice to the respondent outweighs prejudice to the applicant – substantive application dismissed Legislation Cited: Industrial Relations Act 1996 s.84 Civil Procedure Act 2005 s.56 Uniform Civil Procedure Rules 2005 r 12.7 Cases Cited: Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 Category: Principal judgment Parties: Farhan Kabir (Applicant) Department of Family and Community Services (Respondent) Representation: Counsel: M Moir (Respondent) File Number(s): IRC 414 of 2014; 16/20875 Judgment 1. The Public Service Association of NSW ('the PSA') filed an application pursuant to s.84 of the Industrial Relations Act 1996 ('the Act') on behalf of its member Mr Farhan Kabir on 29 May 2014. Since that date the Commission and the Respondent have invested significant resources in attempting to deal with the application, but although arbitration of the matter has commenced, the proceedings remain unresolved nearly two years after they were initiated. 2. The matter was twice set down for arbitration, each time for three days. On the first occasion the matter was adjourned at the end of the first day at the request of solicitors then acting for Mr Kabir, instructed by the PSA. On the second occasion, dates set down in May 2015 for arbitration did not proceed at all, on the basis that Mr Kabir wrote to the Commission saying that he was suffering, as he said, from a medical condition and also was unable to find a solicitor. 3. The PSA, and solicitors instructed by the PSA, ceased to act for Mr Kabir in February 2015, that is, between the first incomplete arbitration hearing and the second listed arbitration hearing. Mr Kabir took carriage of the matter from the time that the PSA withdrew. 4. Since then, although the matter has been before the Commission on a number of occasions, Mr Kabir has at no time appeared before the Commission, in circumstances which are set out in the summary of the evidence I set out below. The instant Motion 1. By a Notice of Motion filed on 7 March 2016, the respondent moved to have the matter dismissed under Rule 12.7 of the Uniform Civil Procedure Rules 2005. That motion was listed before me for hearing on 17 March 2016. On 14 March 2016 the Registry received a medical certificate from Mr Kabir in which his treating doctor certified that Mr Kabir is unfit for work and to attend court on dates beginning on 14 March 2016 to 18 March 2016, which dates including the hearing date of the motion. Mr Kabir did not ask for an adjournment of the hearing of the motion, but simply furnished the certificate. 2. In the circumstances of the matter I determined to hear the motion on its scheduled date in Mr Kabir's absence. I do not express any criticism of Mr Kabir for not attending the Commission in the circumstances; I accept that his doctor has certified him as being unable to attend. 3. This decision is the outcome of that hearing. Applicable law 1. The Industrial Court of New South Wales has helpfully, with respect, set out the jurisprudence applicable to an application of this kind in some detail in its recent decision in Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1 ('Beavan No 1'). That decision is binding on me and I propose to adopt and follow it. 2. Firstly, it is clear that a motion to dismiss proceedings for want of due dispatch brought in relation to a matter under Chapter 2 Part 6 of the Act is governed, just as an application under Chapter 2 Part 7 is governed, by r 12.7 of the Uniform Civil Procedure Rules 2005 ('the UCPR'). It is unnecessary to set out the provisions of r 12.7 here. 3. Secondly, it is clear that what is being exercised in relation to a motion such as the present is a discretion, guided by certain well-established principles. 4. As to those principles, the Court held in Beavan (No 1) at [108]-[113]: 108. The power exercised by the Commission under r 12.7 is a discretionary power: Snow v Snow [2015] NSWSC 90 ('Snow') at [28]; Hanshaw v Seven Network (Operations) Ltd 2014 [NSWSC] 623 at [23] and Micallef at [45]. It is a power that should not be lightly exercised: 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 ('Udowenko') at [120] and Fleet v State of New South Wales [2009] NSWSC 75 at [15]. 109. The exercise of that power is a balancing exercise in the course of which a variety of factors may be considered including those in Hoser v Hartcher [1999] NSWSC 527; see Dank v Cronulla Sutherland District Rugby League Football Club Limited [2014] NSWCA 288 at [103]. The ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed: Bi v Mourad [2010] NSWCA 17 at [78]) and Hoser at [20(1)]. 110. The discretion must be exercised having regard to the requirements of ss 56 to 60 of the CP Act: Mourad at [49], Udowenko at [121], Snow at [28] and Wakim v Tadros [2011] NSWSC 308 at [28] ('Wakim'). Hence, it is, inter alia, necessary to have regard to the "overriding purpose" referred to in s 56 being "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". This is particularly pronounced where the essence of the application before the Court is delay: Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 at [52]. 111. Section 57 deals with the objects of case management and, by s 58, the Commission is directed to seek to act in accordance with the dictates of justice. (I agree with the approach adopted in the authorities mentioned in the previous paragraph that s 58 is relevant to the exercise of power under r 12.7. The exercise of a discretion to dismiss for want of due despatch is caught by the expression "the management of proceedings" in s 58(1)(a) and the particular order or direction that may be made to that end pursuant to s 58(1)(a)(iii).) 112. The case of McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308 ('McMahon') concerned an appeal in respect of a refusal by the primary judge to grant leave to the appellant to amend a statement of claim. Briefly stated, the appellant in that case sought to file a fourth amended statement of claim in February 2010, having been granted leave to file a third amended statement of claim in December 2009. The proposed fourth amended statement of claim sought to amend two imputations. 113. In his judgment, Allsop P discussed the wide implications of ss 56 to 60 of the CP Act. His Honour stated that those sections of the CP Act brought about important changes to the conduct of civil litigation in New South Wales (at [26]). However, His Honour emphatically observed at [30] that "[s]ections 56-58 must be complied with" and that requirement "will involve the weighing of competing considerations". This observation is relevant to all civil proceedings to which the CP Act applies and, in particular, proceedings to determine applications to dismiss for want of due despatch under r 12.7. 1. I adopt and follow that approach. 2. I remain of the view that the provisions of the Civil Procedure Act 2005, particularly s.56 of that Act, bear very much on the exercise of the powers and discretion granted to a court under r 12.7. This Commission, in particular, is a body of limited resources and parties which approach the Commission seeking relief of any kind within the Commission's powers are obliged to conduct themselves with due dispatch. It is not open to parties to luxuriate in the conduct of proceedings in a time and manner which suits them, but does not conform to the Commission's statutory obligations to deal with matters quickly, or indeed conform to directions made by the Commission. If matters are not promptly to be prosecuted, there must be cogent and compelling reasons for that failure presented to the Commission if the tools provided by the UCPR, which must be read in the light of the provisions of the Civil Procedure Act itself, are not to be used to ensure that parties who do conduct themselves with due dispatch are not penalised by parties who do not. 3. In that regard I observe that the Court in Beavan (No 1) drew attention to the observations of the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 at [56]: [56] The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose. 1. I accept that Mr Kabir is presently unrepresented. I do not regard that as excusing him from the operation of the Civil Procedure Act. 2. In the proceedings on the motion evidence was advanced by the respondent in affidavit form. The events leading up to the filing of this motion can, on the evidence, particularly the affidavit of Ian Taylor sworn on 7 March 2016, fairly be summarised in this way: 1. Mr Kabir has not worked for the respondent since October 2013. 2. He was dismissed from his employment with the respondent on 15 May 2014. 3. His application for relief under s. 84 of the Act was filed on 29 May 2014. 4. Conciliation was unsuccessful on 17 June 2014. 5. The hearing of the matter commenced on 3 November 2014 before Stanton C. Following the cross-examination of a witness in the applicant's case, the applicant applied for an adjournment in order to arrange for an interpreter to be available during his oral evidence. The application was opposed by the respondent, but granted by the Commission. The hearing was set down to resume in March 2015. 6. As I note above, in February 2015, the PSA ceased to represent Mr Kabir. The March 2015 hearing dates were vacated, and the matter was set down for resumed hearing in early May 2015. 7. On 28 April 2015, Mr Kabir raised for the first time through the provision of a medical certificate that he was unfit to attend court. The May 2015 hearing dates were vacated, and the matter was adjourned to a date to be fixed. 8. Following enquiries made by the respondent, the matter was listed for report on 10 June 2015. In a letter to the Commission dated 9 June 2015, Mr Kabir applied for a six-month adjournment on unspecified mental health grounds. At the report back, the adjournment was refused and the Commission directed the applicant to provide reports from his treating psychologist and psychiatrist by no later than 21 August 2015, or if not, to contact the Registry by that date. 9. On 24 August 2015, Mr Kabir advised the Registry that he was unable to provide a medical report until a psychiatrist's appointment for 16 October 2015 was completed. A few days later, he provided a medical certificate from a consulting psychiatrist, Dr Haig which relevantly stated "[h]e is medically unfit to attend any court meeting (has been unfit over the last 6 months including 2-5 March 4-7 May)." No other details of Mr Kabir's medical condition were provided, and there was no information as to any possible return to fitness. 10. The matter was stood over to 19 October 2015 to allow the applicant to advise the Commission as to the outcome of his appointment scheduled for 16 October 2015. 11. By late October 2015, no advice or material had been received from Mr Kabir. He was requested by the Commission to advise by 30 October 2015 when his consultant's medical report would be made available. 12. On 30 October 2015, the Commission received an email from Mr Kabir stating that he had been unable to see his psychiatrist, but that his GP had advised him to take full bed rest at home. A medical certificate, he advised, would be provided shortly. 13. Nothing further was heard from the applicant until after a representative of the respondent contacted Mr Kabir by email on 19 February 2016 and advised him that the respondent intended to file the present motion. On 22 February 2016, Mr Kabir emailed a reply as follows: "I was continuosly unwell and was taking higher doze of medication since august 2016. My sycratist highly recommended me not to involve any of this matter in this stage.i will sent you a sycratist report shortly." 1. No psychiatrist report or any other medical certificate of any description was provided until listing of the hearing of the instant Notice of Motion was sent to Mr Kabir by email. 2. On 14 March 2016 Mr Kabir sent by email to the Registry a certificate from his GP stating that he was unfit for work or to attend court from 14 to 18 March 2016 inclusive. 3. Mr Kabir did not on this occasion (as he had done on earlier occasions) apply for an adjournment of the proceedings. 4. As at the date on which the motion was heard, there was no medical certificate or any other kind of medical report or material explaining the failure by Mr Kabir to prosecute the matter between August 2015 and 14 March 2016, a period of seven months. 1. I add to that summary the fact that, on the evidence, Mr Kabir on two occasions – 30 October 2015 and 22 February 2016 – undertook in writing to provide medical certificates to the respondent and the Commission, in circumstances where the matter was part-heard before the Commission awaiting Mr Kabir's fitness to continue. He did not, despite his undertakings, provide those certificates. 2. I emphasise that I do not take in any way lightly the medical diagnosis of depression which has been made from time to time in respect of Mr Kabir. Depression is a serious illness which has the capacity to prevent, or limit, the sufferer from taking steps to assist themselves. 3. However, there is no medical certification addressing Mr Kabir's condition between August 2015 and March 2016. He has not in that period taken any step to prosecute his case, and he has, as I say above, in that period also failed to furnish medical certificates which he promised to furnish. Prejudice to applicant considered 1. I turn to the overall balancing exercise I am required to undertake. 2. While there is no evidence from Mr Kabir as to the prejudice that he will suffer if the proceedings are dismissed, that is a matter which I must consider and balance in the discretionary decision I must make. 3. I well appreciate that an applicant pursuant to s. 84 will suffer a prejudice if his claim is dismissed. Dismissing the proceedings prevents them from being reinstituted. 4. In assessing that prejudice, and in carrying out the balancing exercise under r 12.7 as a whole, it is appropriate that there be consideration of the prospects in the substantive case: Beavan (No 1) at [141] and authorities there cited. 5. In this case I am obliged to say that the applicant's prospects of success in the case, at least as they go to the primary remedies of reinstatement or re-employment, and even at large, are poor. 6. Mr Kabir was dismissed on the basis of a finding of fact that he physically assaulted a female client of the respondent who suffered from severe cognitive difficulties. This finding was made after a lengthy fact-finding investigation in which Mr Kabir, represented by the PSA, was heard. 7. It was not the first disciplinary sanction that had been imposed on Mr Kabir in relation to his conduct toward clients of the respondent; in 2012, on the evidence, he had been transferred and given a written warning going to his conduct toward clients of the respondent. 8. The respondent routinely deals with highly vulnerable people. It was to work with such people that Mr Kabir was employed and it is that work to which he seeks reinstatement. 9. If the particular misconduct alleged is made out on the evidence, as it was found to be made out in the inquiry conducted by the respondent, the prospect of any success in the s.84 application seems remote. 10. Further, Mr Kabir has not, based on the information he provided in his original application filed in the Commission, worked for the respondent for more than two and a half years. There is no indication of when, if ever, he might be fit to return to work. 11. I am bound to conclude that, to the extent that it is appropriate that I have regard to the applicant's prospects in the case, I regard them as poor. Consideration 1. I accept, of course, that the discretion to dismiss proceedings for want of due dispatch is a discretion not to be exercised lightly, and only in a clear case where it is manifestly warranted: Beavan (No 1) at [80]. 2. Bearing that in mind, applying the tests set out by the Court in Beavan (No 1) to the facts of this matter, it is my view that the appropriate course is to dismiss the proceedings. 3. It is clear that the ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed. 4. Here the respondent has, on the evidence, already invested significant resources in meeting this case. They are public funds drawn from the taxpayer. The events which led to the termination occurred in August 2013. As time goes on the capacity of witnesses to remember and be usefully cross-examined diminishes. As time goes on the applicant's prospects of achieving certainly the primary remedy, not good in the first place, diminish further. 5. Further, the applicant has failed to, in spite of his promise to do so, furnish any medical certificate or report addressing his medical condition in the time between August 2015 and March 2016, during which time he took no steps to prosecute his application even though it was part-heard. 6. There is no indication as to when, if ever, he will be fit to prosecute his case. 7. Against the prejudice to the respondent, there is to be balanced the applicant's loss of the ability to press his case. I accept that that is a real prejudice, but given the poor prospects which his case has, his failure to press it at all since on the most generous view August 2015, and the complete lack of any information suggesting whether, and if so when, he might be able to work again, in my view that prejudice is outweighed by the prejudice to the respondent. 8. Put shortly, on balance, the prejudice to the respondent in allowing the proceedings to remain on foot outweighs the prejudice to the applicant in having his proceedings dismissed. As that is the test to be applied, it follows that the proceedings ought be dismissed. Orders 1. The order that I make in these proceedings is as follows: The application brought by Farhan Kabir pursuant to s.84 of the Act is dismissed. PETER NEWALL Commissioner ********** Amendments 18 March 2016 - Paragraph 10 - The words "is discretion" amended to read "is a discretion". Paragraph 38 - The word "prejudiced" amended to read "prejudice". 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. Decision last updated: 18 March 2016