Industrial Relations Commission New South Wales Medium Neutral Citation: Charmaine Beatrice McIntosh and Secretary, Department of Education [2017] NSWIRComm 1042 Hearing dates: 16 June 2017 Date of orders: 28 July 2017 Decision date: 28 July 2017 Jurisdiction: Industrial Relations Commission Before: Seymour C Decision: Application Dismissed Catchwords: UNFAIR DISMISSAL – failure by applicant to comply with directions – failure by applicant to attend directions hearing – application dismissed STRIKE OUT APPLICATION – lack of due dispatch – case management - balancing of prejudice to be suffered by applicant and respondent – loss of ability to pursue claim – 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 Kabir v Department of Family and Community Services [2016] NSWIRC 1009 Category: Principal judgment Parties: Charmaine Beatrice McIntosh (Applicant) Secretary, Department of Education (Respondent) Representation: Applicant did not appear C Miles (Respondent) File Number(s): 2017/115809 Judgment 1. Ms Beatrice filed an application pursuant to s.84 of the Industrial Relations Act 1996 ('the Act') on 18 April 2017. The respondent filed a Reply to the application on 5 May 2017. Background 1. Conciliation of the matter was conducted by me on 16 May 2017, which was unsuccessful. The applicant participated in the conciliation by way of teleconference via a mobile phone number provided to the Registry. At the conclusion of the teleconference I made standard directions for the filing of evidence, including a direction that the applicant file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 6 June 2017. The directions were emailed to the applicant's nominated email address on 16 May 2017. A request was included in that email for the parties to provide the Registry with an estimate of the number of days for hearing and their availability for hearing. 2. On 30 May 2017, the Registry emailed the parties seeking an estimation of the hearing length and availability of the parties. As no response was received, a further email making the same request was sent to the parties on 8 June 2017. The respondent through its representative Mr Miles responded by email the same day. Mr Miles indicated that as the applicant had not filed and served her evidence by 6 June 2017 as required by the directions, the respondent's position was that it was inappropriate to set hearing dates at that time. The respondent requested that 'the matter be listed for further directions in the nature of a compliance check' given the non-compliance with the directions by the applicant. All of these emails were sent to the applicant's nominated email address. 3. The matter was listed for further directions on 16 June 2017. A Notice of Listing was emailed to the applicant on 13 June 2017, to her nominated email address. My Associate also telephoned the applicant on 14 June 2017 to advise her of the listing and confirm she could again participate by teleconference on her previously advised mobile phone number. An email was sent by my Associate to the applicant on 14 June 2017 to her nominated email address, confirming that the Applicant was required to have filed and served her evidence by 6 June 2017 and that no evidence had been received. The email further stated as follows: In the teleconference with you this Friday, the Commissioner will be seeking information from you as to when you intend to file your statements (and any other documents), so that a revised timetable can be set and dates for the hearing allocated. 1. The Registrar contacted the applicant by telephone on 15 June 2017 to confirm the operation of the applicant's nominated mobile phone number. 2. On 16 June 2017, Mr Miles appeared on behalf of the respondent. I attempted to call the applicant from the courtroom three times at 10.00am, 10.02am and 10.06am, with no response and the phone going through to the applicant's voicemail. 3. The respondent then made an oral application to dismiss the proceedings under Rule 12.7 of the Uniform Civil Procedure Rules 2005 ('Rule 12.7'). Mr Miles submitted that the respondent's position was the same as it was at conciliation, namely, that the proceedings are futile, if not vexatious. As a result of certain criminal charges laid against her the applicant did not hold a working with children check clearance at the time of her dismissal. Accordingly the respondent submitted it would be unlawful for her to work in a government school and unlawful for the respondent to employ her to work in a government school. Mr Miles further submitted that as the applicant had not complied with the first step in the litigation of filing her evidence, and failed to attend the directions hearing, the proceedings ought be dismissed. 4. I declined to determine the application at that time. I directed the respondent to write to the applicant to seek to ascertain her intentions in relation to the proceedings. The respondent was to provide the Commission with a copy of its letter to the applicant and any response provided by the applicant. If there was no such response within five business days the respondent was to advise the Registry and I would determine the respondent's application in chambers. 5. The respondent wrote to the applicant on 20 June 2017 ('the respondent's letter') noting the applicant's non-compliance with the timetable and failure to attend the directions hearing on 16 June 2017 via teleconference. The respondent's letter set out the matters directed by the Commission and advised that if the applicant did not respond within 5 business days, the Commission would determine the matter (including dismiss it under Rule 12.7) in chambers without further notice. The respondent's letter was sent by email on 20 June 2017 to the applicant's nominated email address. The respondent's letter stated that a copy was also sent via post to her residential address. 6. The respondent wrote to the Registry on 18 July 2017 providing a copy of the respondent's letter and confirming that no response had been received from the applicant. 7. Accordingly, due notice has been given to the applicant of the respondent's application to have the proceedings dismissed under Rule 12.7 and I have dealt with the matter ex parte. Applicable law 1. In Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1 ('Beavan No 1'), the Industrial Court of New South Wales set out the principles relevant to the determination of an application under Rule 12.7, 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. In Kabir v Department of Family and Community Services [2016] NSWIRC 1009, Commissioner Newall observed at [13]-[15]: [13] 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. [14] 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. [15] I accept that Mr Kabir is presently unrepresented. I do not regard that as excusing him from the operation of the Civil Procedure Act. 1. I agree with the Commissioner's observations with respect to the Civil Procedure Act and the resources of the Commission. 2. Commission Practice Note 17A provides at paragraph 2 that unfair dismissal matters before the Commission are to be conducted in a just, quick and cost effective manner. The Practice Note further states that practitioners 'and others who appear before the Commission' are to do all they can to facilitate such case management. Therefore while the applicant is unrepresented, this requirement of the Practice Note applies to her. Consideration 1. 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 v Industrial Relations Secretary (No 1) [2016] NSWIC 1 at [80]. The question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed. 2. As the applicant did not attend the conciliation on 16 June 2017, there is no evidence from her as to the specific prejudice she will suffer if the proceedings are dismissed. However as a general proposition an applicant will suffer prejudice if their claim pursuant to s. 84 is dismissed, as it cannot be reinstituted. 3. The applicant has failed to take the initial necessary steps to prosecute her application by filing her evidence. She has failed to respond to communications with her by the Registry regarding her application, attend a directions hearing and respond to correspondence from the respondent regarding her application. There has been no explanation advanced by the applicant that could justify such failures and she has not otherwise communicated her intention to prosecute her claim. 4. The respondent has expended time and money in attending the Commission on 16 June 2017 and writing to the applicant (at my direction) to enquire when her evidence would be filed. 5. It is also appropriate to consider the prospects in the applicant's substantive case: Beavan (No 1) at [141]. On 27 January 2017, the applicant commenced employment on a temporary contract as a School Learning Support Officer in a public school operated by the respondent. On 28 March 2017 she was charged with a criminal offence, being assault with an act of indecency. Section 7D of the Education (School Administrative and Support Staff) Act 1987 provides that if a member of the school administrative and support staff is charged with an offence punishable by imprisonment for 12 months or more, they must immediately report that fact to the respondent. The offence with which the applicant was charged with such an offence. The respondent contends that the applicant did not report the charge as required, rather the school principal independently became aware of it. 6. The next day 29 March 2017, the Office of the Childrens' Guardian advised the respondent that the applicant was barred from working with children. The Office of the Children's Guardian required the respondent to advise within 7 days that the applicant had been removed from child-related work, noting that it is an offence for the respondent to continue to employ a barred person in child-related work. 7. In light of these considerations, including the nature of the applicant's position, the reason for dismissal and the short and temporary nature of her employment, I consider that the applicant's prospects of success in the case are not strong. 8. The applicant is in default of directions made by the Commission, has failed to attend the Commission to explain her default and consequently failed to pursue her claim with due diligence. There is prejudice to the applicant in the loss of the ability to press her case. However given the prospects of her case and her failure to press it without reasonable excuse, I consider the prejudice to her is outweighed by the prejudice to the respondent. Accordingly, I consider that justice demands the proceedings be dismissed. Orders 1. That the application brought by Charmaine McIntosh pursuant to s.84 of the Act is dismissed. JANE SEYMOUR 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. Decision last updated: 28 July 2017