Evans v Commissioner of Police [2017] NSWIRComm 1071

Industrial Relations Commission New South Wales Medium Neutral Citation: Evans v Commissioner of Police [2017] NSWIRComm 1071 Hearing dates: 21 November 2017 Date of orders: 21 November 2017 Decision date: 21 November 2017 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application dismissed Catchwords: POLICE – application for review of dismissal order – application dismissed PRACTICE AND PROCEDURE – want of prosecution – want of due dispatch – no compliance with directions – no appearance – no explanation for non-appearance and non-compliance – application dismissed Legislation Cited: Civil Procedure Act 2005 s.56 Police Act 1990 s.181D Cases Cited: Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1 Stollznow v Calvert [1980] 2 NSWLR 749 Category: Principal judgment Parties: Mr T Evans (applicant) Commissioner of Police (respondent) Representation: Applicant in person Mr S Jauncey, solicitor (respondent) :

Solicitors: Lander & Rogers (respondent) File Number(s): 2017/207076

Judgment 1. This is an application for review of a removal order made by the Commissioner of Police pursuant to s.181D of the Police Act 1990. 2. Directions were made on 28 July 2017 for the filing and serving of evidence, and the matter was set down for four days' hearing in December 2017. On that day the applicant was represented by solicitors who subsequently ceased to act for him. The directions were made in court and provided in writing by post and facsimile to the applicant. The applicant was to file and serve his evidence by 8 September 2017. No evidence was filed; no reason for that failure was conveyed to the respondent or the Commission. 3. The Commission relisted the matter before it on 25 October 2017. The applicant did not appear, despite being advised by post and facsimile of the listing. On that day the Commission vacated the hearing dates, relieved the respondent of its obligations under the directions and made fresh directions that the applicant was to file and serve any evidence in chief by 17 November 2017, and that if that were not done, and no acceptable reason for any failure to do so provided, the Commission would dismiss the matter in chambers for want of prosecution. 4. Those Orders and directions were provided to the applicant in writing by post and facsimile. 5. No evidence was filed and no communication of any kind was made by the applicant to the Commission. The matter now comes before the Commission in chambers. 6. Section 56 of the Civil Procedure Act 2005 places an overriding obligation on tribunals and parties to provide just, quick and cheap resolutions to proceedings. That overriding obligation is the starting point in considering a matter of this kind. 7. Drawing on the decisions of the Supreme Court in Stollznow v Calvert [1980] 2 NSWLR 749 and the Industrial Court in Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1, it is apparent that the power to dismiss a proceeding for want of due dispatch is a discretionary one, and is guided by whether justice demands in a given case that the proceedings be dismissed. 8. Here, to leave the proceedings on foot will require further expenditure of public monies, both in the form of the Commission and the form of the Commissioner of Police, to maintain an action that the applicant has over several months shown no shred of interest whatsoever in maintaining. That in my view is sufficient to sway the discretion to the dismissal of the application for want of due dispatch. 9. The application for review brought by Travis Evans against the Commissioner of Police is dismissed.