Industrial Relations Commission New South Wales Medium Neutral Citation: Rous v Department of Education and Communities [2018] NSWIRComm 1017 Hearing dates: 30 October 2017 Date of orders: 29 March 2018 Decision date: 29 March 2018 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC Decision: Applications dismissed Catchwords: CIVIL PROCEDURE — Court administration — Overriding purpose — Just, quick and cheap resolution – failure to comply with directions – applications dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 61 Industrial Relations Act 1996 (NSW) ss 169 Uniform Civil Procedure Rules 2005 (NSW) Workers Compensation Act 1987 (NSW) s 242 Cases Cited: Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1 Beavan v Industrial Relations Secretary (No 3) [2016] NSWIRComm 1008; Charmaine Beatrice McIntosh and Secretary, Department of Education [2017] NSWIRComm 1042) Harakh v Industrial Relations Secretary (Corrective Services NSW) [2017] NSWIRComm 1016 Kabir v Department of Family and Community Services [2016] NSWIRC 1009 Transport Workers' Union of New South Wales (on Behalf of RRA Enterprises Pty Limited) v Corporate Express Supply Chain Pty Limited Trading as Staples (No 1) [2015] NSWIRComm 1021 Category: Procedural and other rulings Parties: Zlata Rous (Applicant) Department of Education and Communities (Respondent) Representation: Counsel: Solicitors: K & L Gates (Respondent) File Number(s): 2017/00057827 and 2017/00112639 Judgment 1. Before the Commission are two motions. The first, filed by the respondent on 14 September 2017, seeks orders dismissing the applications filed by the applicant. The second, filed by the applicant on 18 September 2017 seeking declarations and an order staying both sets of proceedings. The two sets of proceedings are; 1. Matter 2017/57827 - being an application pursuant to s 242 of the Workers Compensation Act 1987 (NSW) for reinstatement of an injured worker ("the Injured Worker Application"); and 2. Matter 2017/112639 - being an application pursuant to s 213 of the Industrial Relations Act 1996 (NSW) ("the IR Act") for relief from victimisation ("the Victimisation Application"). Background 1. The matters have a rather convoluted history. They were preceded by an Application (2015/00374572) made pursuant to s 84 of the IR Act for relief from unfair dismissal ("the Unfair Dismissal Claim"). It is convenient to note, briefly, the course of the last matter and its intersection with the two applications to which the motions relate. That is best done by way of the chronology which follows. 31 March 2015 Unfair Dismissal Claim filed 14 May 2015 Unsuccessful conciliation of that claim before Tabbaa C. Directions made to prepare the matter for hearing on 17-19 August 2015. 27 May 2015 Respondent applied, with consent of the applicant to vacate the hearing dates. 24 June 2015 Applicant's then solicitors cease to act. Adjournment sought for new solicitor to consider/advise re alternative proceedings in Federal Court and/or HREOC. Hearing dates vacated by consent. 8 July 2015 New directions made. 10 July 2015 Notice of change of solicitors filed on behalf of applicant. 4 September 2015 Revised directions made by consent on application of applicant. 21 October 2015 Further directions ("guillotine orders") made. December 2016 – April 2016 Various listings before the Industrial Registrar re directions and production of documents. 11 May 2016 Matter listed for hearing before Newall C on 15-17 August 2016. Hearing dates vacated by Newall C on the application of the applicant. Ms Rous advised she had withdrawn instructions from her lawyers and was not well enough to conduct the case herself. The orders made included an order that "proceedings": 26 July 2016 "will only be listed for further final hearing upon the Applicant filing in the Commission and serving on the Respondent an affidavit from a medical practitioner advising the Commission in terms that the Applicant is and will for the foreseeable future remain: a. fit to attend and participate in the hearing of the proceedings, including fit to be cross examined; and b. if the applicant has not by that date engaged legal representation, fit to conduct the hearing of the proceedings without legal representation". January and February 2017 Listed for call-over. Adjourned - applicant not medically fit. 23 February 2017 Applicant files the Injured Worker Application. 16 March 2017 Directions hearing before Stanton C. - respondent foreshadows motion to dismiss the Injured worker Application. Adjourned to 24 April for further directions. 13 April 2017 Applicant files the Victimisation Application. 24 April 2017 Directions before Stanton C. Respondent foreshadows arguments re s.90 of the IR Act and out of time issues concerning the victimisation application. Commissioner recommends the applicant seek legal advice about these issues. Adjourned to18 May 2017 12 May 2017 Applicant files motions which may be broadly described as seeking expedition 18 May 2017 Directions before me. Applicant had not obtained legal advice but maintained that the Unfair Dismissal claim was no longer relevant, was not being pursued and she did not wish to pursue it. Following a lengthy directions hearing I made the directions which are set out below. The respondent did not oppose expedition. 1. It was a constant theme of the applicant's submissions that she was not a lawyer and could not afford legal assistance. She alleged, and continues to allege, her previous legal advisors, of which there appeared to be several, had damaged her case and she had lodged complaints against them which have not been resolved. There was no indication of when they might be resolved. 2. At the 18 May directions hearing I had the following exchange with the applicant. APPLICANT: So what I'm saying is I've paid to have legal representation in this jurisdiction here. I don't think that it's appropriate for me ‑ I don't even know if I have the capacity, if I look at what I'm supposed to do, whether I have the capacity to represent myself. COMMISSIONER: Well, that's the question. APPLICANT: Because I don't have legal advice, and there seems to be a problem from legal aid, which have written to me recently, saying, "You can't have any more legal advice." COMMISSIONER: Well, the question is whether you want me to list these matters on the basis that you may get legal assistance or you may not. And if you don't, then you'll have to run the case yourself. APPLICANT: Well, I might have to put a stay on proceedings because I'm not‑‑ COMMISSIONER: Well, you can't put a stay on proceedings. I can, but you can't. You can make an application for an adjournment of the proceedings. But if the application is on the basis that you don't have legal assistance and you don't feel capable of running the case, that's a matter you know now. Why would I list the matter? APPLICANT: Why not list it, did you say? COMMISSIONER: Why would I list it, if that's the position? APPLICANT: Yes. Well, I don't know what it entails. I mean, I didn't know there was going to be a hearing here under the Act. I made the application under 282. COMMISSIONER: 242. APPLICANT: 242. I didn't know that there's going to be a hearing for it. I didn't know I need to do ‑ how many more submissions do I need to do? I've already filed two folders in regards to 242 today. I filed 12 May, last week on Friday. COMMISSIONER: Yes, and only [I know you] filed a lot. APPLICANT: So I don't know how much more am I required to do, how complicated‑‑ COMMISSIONER: That's a matter for you. APPLICANT: I don't know. That's what I'm saying. I'm not a lawyer. I don't have any legal training at all. COMMISSIONER: There are many people who appear in this jurisdiction for themselves. They do the best they can. The Commission takes that into account when they're presenting their case. But the Commission can't run the case for you. … APPLICANT: I didn't know what the situation was because I thought it came under the same thing as what they told me. COMMISSIONER: The situation now is: you have two applications that you have made to this Commission, for orders reinstating you to your position, or alternative relief if those orders aren't made. Now, you can either succeed or fail, depending on the case that you run and the case the Department runs. Whoever hears them ‑ and at this stage it will be me ‑ will need to decide where the merit lies and what the law requires as a matter of justice. … APPLICANT: Right. As I said, I don't know anything about the hearing date for these matters. COMMISSIONER: I haven't set a hearing date yet. What I'm trying to decide is whether I will set one. Mr Easton has raised the prospect that you may, if you are unable to obtain legal advice and assistance for the conduct of your case, not want to proceed on the days set down. APPLICANT: I don't think I'll be proceeding. If you're expecting me to run a three‑day hearing and I don't have any legal advice, I don't think that's really fair or appropriate for a person who's been dismissed, who's technically homeless, got no money. COMMISSIONER: Well, the difficulty is, Ms Rous, the Commission has an obligation to deal with the matters put before it by parties. You've made applications. The conduct of those applications ‑ the "prosecution" of them is the word that's used ‑ is a matter for you. Lots of time people are represented by unions and/or lawyers. Sometimes they represent themselves and they do the best they can. If you can't get a lawyer or a union official to run your case for you, then you'll have to run it, or abandon it. APPLICANT: I don't have to abandon it, do I? COMMISSIONER: At some point, if it's not pursued, then there's likely to be an application from the other side and/or by the Commission to strike the matter out for want of prosecution. APPLICANT: Well, if anything, it's more the respondent's matter to be struck out because they haven't filed anything. So I'll have to run it of course, but I don't want it to be happening in the next month or two months because I need to understand the complexities of what I need to prepare. 1. At that point the applicant appeared to understand that whether or not she had legal representation there was an expectation that she would be responsible for the preparation and conduct of her case. There followed extensive discussion with the applicant about the time required to prepare her case and respond to the respondent's case. The standard directions prescribed in Practice Note 17A were varied substantially in order to accommodate her needs. I made the following directions: 1. I direct that the matters number 2017/00112639 and 2017/00057827 be heard together. 2. The applicant is to file and serve the statements and other evidence upon which she relies by 4pm on 17 August 2017. 3. The respondent is to file and serve the statements and other evidence upon which it relies by 4pm on 20 September 2017. 4. The applicant is to file and serve any evidence in reply by 4pm on 1 November 2017. 5. It will be sufficient compliance with orders 2, 3 and 4 for the party to file a document identifying those parts of the evidence already filed in proceedings in the Commission upon which they wish to rely, in addition to any new material. 6. The matters will be listed for further directions on Monday, 6 November at 9.30am. 7. The parties are to file, at the time of filing their evidence, an outline of submissions in support of their case. 8. Without leave of the Commission, written statements and other documentation filed and served later than the time specified by the Commission may not be relied upon by that party. 1. Direction 6 above was made in lieu of setting hearing dates in view of the very extended timetable which had been set, essentially to meet the needs of the applicant. The Evidence 1. The respondent's motion was supported by an affidavit of Rachal Alicea Bevan, a solicitor in the employ of the respondent's solicitors. Ms Bevan's affidavit deposed to the making of the directions set out above and the correspondence which was exchanged between the Commission and the applicant and the respondent and the applicant concerning those directions. In particular Ms Bevan deposed as follows: 6. On 24 May 2017, Lydia d'Souza, Commissioner Support, IRC, emailed a copy of the Directions to Ms Rous. Attached and marked "RB – 1" is a copy of that email. This email was forwarded to K&L Gates by the Respondent. 7. On 8 June 2017, K&L Gates filed and served Notice of Appearances on behalf of the Respondent in IRC proceedings No. 57827 of 2017 and IRC proceedings No.112639 of 2017. 8. Neither K&L Gates or the Respondent were served with any statement, evidence or submissions from Ms Rous by 4 pm on 17 August 2017 as was required by the Directions, in particular the directions outlined at 5(b) [i.e. direction 2] and 5(g) [i.e. direction 7] above. 9. On 25 August 2017, Ms d'Souza sent an email to Ms Rous regarding her failure to comply with the Directions. Attached and marked "RB – 2" is a copy of that email. This email was forwarded to K&L Gates by the Respondent. 10. On 31 August 2017, Ms Lenard sent a letter to the IRC via email outlining Ms Rous' failure to comply with the Directions and seeking that the matter be relisted for further directions. Ms Rous was copied in on this correspondence. Attached and marked "RB – 3" is a copy of the covering email and the letter. 11. On 4 September 2017, K&L Gates received emails from the IRC with two Notice of Listings in the proceedings. The proceedings were listed for further directions at 11:30 am on 7 September 2017 (Further Directions Hearing). Attached and marked "RB – 4" is a copy of the Notice of Listings. 12. On 4 September 2017, Ms d'Souza sent me an email confirming that the proceedings were listed for the Further Directions Hearing. Ms Rous was copied in on this correspondence. Attached and marked "RB – 5" is a copy of that email. 13. On 5 September 2017, Ms Rous sent an email to the IRC regarding the Notice of Listings. She later forwarded this email to Ms Lenard and the Respondent. Attached and marked "RB – 6" is a copy of that email. 14. On 7 September 2017, Ms Lenard and I attended the IRC for the Further Directions Hearing before Chief Commissioner Kite. Ms Rous did not appear. 15. As at 14 September 2017, neither K&L Gates or the Respondent have been served with any statement, evidence or submissions from Ms Rous as was required under the Directions by 4 pm on 17 August 2017. 16. As at 14 September 2017, neither K&L Gates or the Respondent has received any correspondence from Ms Rous, verbal or in writing, regarding why she has failed to comply with the Directions. 1. Ms Bevan was not required for cross-examination. The applicant made a general objection to the affidavit and relied upon what was set out in her written submissions. Nothing in her written submissions raised an objection to the admissibility of the evidence of Ms Bevan. It is unnecessary to do more than note that the summaries of the various documents referred to by Ms Bevan are accurate as to the substance of the communications which were attached to her affidavit. 2. I note in relation to paragraph 14, of Ms Bevan's affidavit, that Ms Rous emailed the Commission to advise she would not respond to documents purporting to be initiated by her when they were not. The Industrial Registrar replied to Ms Rous explaining the Commission's case management system generates document titles in a particular way and advising the listing was at the request of the respondent. The email from the Industrial Registrar was attachment ZR5 to the affidavit of Ms Rous. Ms Rous replied to the Registrar's email at 9.09am on 7 September 2017 indicating that she would not be "bullied". The Registrar again replied at 10.02am noting the listing was for 11.30am, the reason for the listing and indicating "It will be in the best interests for your cases that you attend". No other explanation for her non-appearance was offered. 3. Ms Lenard also tendered a letter from the Anti-Discrimination Board dated 13 October 2017 to her, in her capacity as solicitor for the respondent, advising the complaint by Ms Rous, reference C2017/0072, had been declined as lacking in substance. 4. The applicant read an affidavit of hers sworn on 18 September 2018. In her affidavit Ms Rous refers to a complaint before the Anti-Discrimination Board; makes allegations of failure to reply to her emails by the respondent and the Commission (notwithstanding attaching ZR5 to her affidavit); makes allegations of "false facts" in the respondent's solicitors reply to the Anti-Discrimination Board; makes allegations that paragraphs 15 and 16 of the affidavit of Ms Bevan are incorrect (on the basis that she emailed the solicitors seeking an explanation of who was filing documents representing themselves as her); asserting her failure to attend the Commission on 7 September 2017 was legally correct; and makes reference to allegations of false reporting of the outcome of Federal Court and Workers Compensation Commission proceedings. 5. In her written submissions Ms Rous also made a number of statements amounting to allegations of improper conduct by several people. I do not propose to set them out because they were not supported by evidence and in any event were irrelevant to the issues before the Commission. Submissions 1. The respondent filed detailed, though succinct, written submissions. I will quote from then extensively because, as will become apparent, I generally accept them and it will relieve me of the obligation of further extensive discussion later in these reasons. 1. 12 Ms Lenard, solicitor appearing for the respondent, relied upon the history of non-compliance by the applicant with directions of the Commission. In her detailed written submissions she referred to the Civil Procedure Act 2005 (NSW) ('the CP Act"); the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"); and a number of recent decisions of the Commission. In particular she referred to Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1; Beavan v Industrial Relations Secretary (No 3) [2016] NSWIRComm 1008; Harakh v Industrial Relations Secretary (Corrective Services NSW) [2017] NSWIRComm 1016; Transport Workers' Union of New South Wales (on Behalf of RRA Enterprises Pty Limited) v Corporate Express Supply Chain Pty Limited Trading as Staples (No 1) [2015] NSWIRComm 1021; Charmaine Beatrice McIntosh and Secretary, Department of Education [2017] NSWIRComm 1042). 1. In relation to the CP Act, Ms Lenard referred in particular to ss 56 and 61 the terms of which relevantly are: 56 Overriding purpose (cf SCR Part 1, rule 3) (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. … 61 Directions as to practice and procedure generally (cf SCR Part 23, rule 4; Act No 9 1973, section 68A) (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) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim, (b) it may strike out or limit any claim made by a plaintiff, (c) it may strike out any defence filed by a defendant, and give judgment accordingly, (d) it may strike out or amend any document filed by the party, either in whole or in part, (e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce, (f) it may direct the party to pay the whole or part of the costs of another party, (g) it may make such other order or give such other direction as it considers appropriate. (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. (Emphasis added) 1. The respondent noted, relying on McIntosh and the cases referred to therein, that: "2.34 The discretion to dismiss proceedings for want of due dispatch is a discretion nt to be exercised lightly and only in a clear case where it is manifestly warranted (Bevan No 1 at [80]). The Respondent submits that, having balanced the prejudice to each party, justice demands that the Proceedings be dismissed. 2.35 Firstly, the Applicant has not provided any evidence as to the specific prejudice she will suffer if the Proceedings are dismissed. 2.36 Secondly, the Applicant has failed to take the initial necessary steps to prosecute the Proceedings by filing her evidence as require by the Directions. 2.37 She has failed to attend the Further Directions Hearing. There has been no reasonable explanation advanced by the Applicant that could justify such failures and she has not otherwise communicated her intention to prosecute her claim." 1. Ms Lenard also submitted that it was relevant, in balancing the prejudice to each party, to have regard to the prospects of the applicant's substantive case. In relation to that the respondent submitted: "2.38 …that both applications which constitute the Proceedings will fail as there is no legal basis for the claims. 2.39 Firstly, proceedings numbered 2017/00057827 is an application for reinstatement of an injured worker under section 242 of the Workers Compensation Act 1987 (NSW) (WC Act). Section 242 only applies if the following circumstances are met: (a) an injured worker is dismissed because he or she is not fit for employment as a result of the injury received; and (b) the injured worker applies to the employer for reinstatement under s241 of the WC Act; and (c) the injured worker produces to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement; and (d) the section 241 application is denied by the employer. 2.40 None of these circumstances are met in this case. The Applicant was not dismissed from her employment because she was not fit for employment as a result of an injury; rather, she was dismissed for misconduct. 2.41 It is an undisputed fact in the proceedings that the Applicant has not applied to the Respondent for reinstatement under s241 of the WC Act. The Applicant's concession of this fact are set out in the following: (a). Affidavit of Zlata Rous filed 12 May 2017, paragraphs 28 and 29; (b) Transcript of 18 May 2017, Page 6, line 31, Page 6 line 44, Page 6 line 48, Page 7, Line 3, Page 7, line 8;, Page 11, line 30; and (c) Applicant's Notice of Motion filed 18 September 2017 – paragraph 2 k. 2.42 It is a condition precedent for the Commission's jurisdiction to determine an application under section 242 of the WC Act that the former employee had previously made an application to the former employer under section 241 of the Act. The Commission can be satisfied, because of the factual concessions made by the Applicant, that it does not have jurisdiction to hear and determine the proceedings numbered 2017/57827. The Applicant's claim in this regard is entirely misconceived, with no prospects of success. 2.43 Secondly, proceedings numbered 2017/00112639 is an application for relief from victimisation under sections 210 and 213 of the IR Act. Sections 210 and 213 of the IR Act are contained within Part 1 of Chapter 5 of the IR Act which deals with principles of association in industrial organisations. In particular, section 210 of the IR Act deals with victimisation during employment for a number of stated reasons. The Respondent did not victimise the Applicant during her employment for any of the stated reasons, particularly parts (b), (e), (f) and (g) as claimed by the Applicant. The Applicant's claim in this regard is entirely misconceived, with no prospects of success." 1. Ms Lenard also made detailed submissions refuting the claims made in the applicant's motion. In summary those claims were; 1. A claim for a declaration that the respondent and/or its lawyers had breached s 90A of the IR Act; 2. A claim that a stay of the proceedings was operative by operation of ss 167 and 169 of the IR Act given there was an outstanding complaint to the Anti-Discrimination Board dated 8 February 2017; 3. A claim for a stay of the proceedings on the basis that the applicant is not fit to conduct the proceedings without access to legal advice. 4. A claim for refusal of the respondent's motion of 14 September 2017. 1. The respondent submitted: As to the first claim - "3.3 The Applicant's First Claim has no legal basis due to the following: (a) Section 90A of the IR Act is contained within Part 6 of Chapter 2 the IR Act which deals with unfair dismissals. The Proceedings do not involve an application for unfair dismissal before the IRC. As such, section 90A cannot apply to the Proceedings or in relation to the Applicant's Motion. (b) Section 90A of the IR Act is headed "Industrial agent must not represent an applicant or employer in proceedings unless there are reasonable prospects of success". As such, the section specifically relates only to "industrial agents". "Industrial agent" is defined in the IR Act as meaning "a person (other than an Australian legal practitioner or an employee or officer of an industrial organisation) who represents a party in proceedings before the Commission for fee or other reward." Neither Rachel Bevan, Christa Lenard nor Christopher Miles can be classified as an "industrial agent" under the IR Act as they are all Australian legal practitioners. As such, section 90A cannot apply to the Proceedings or in relation to the Applicant's Motion. 3.4 Accordingly, the Applicant's First Claim must be rejected." As to the second claim - "3.6 The Applicant's Second Claim has no legal basis due to the following: (a) Section 267 of the IR Act is contained within Part 4 of Chapter 5 of the IR Act which deals with the regulation of State industrial organisations. Specifically, Part 4 of Chapter 5 of the Act only applies to industrial organisations that are State organisations incorporated under the IR Act. Neither Christa Lenard, Rachel Bevan nor Christopher Miles can be classified as either being, or being employed by, an industrial organisation that is a State organisation incorporated under the IR Act. (b). Section 267 of the IR Act is limited in its application to officers of a State organisation. Neither Christa Lenard, Rachel Bevan nor Christopher Miles can be classified as being an officer of a State organisation incorporated under the IR Act. 3.7 Accordingly, the Applicant's Second Claim must be rejected." As to the third claim – 3.9 The Applicant's Third Claim has no legal basis due to the following: (a) On 8 February 2017 the Applicant filed a complaint against the Respondent with the Anti-Discrimination Board (ADB). The complaint was made before the Applicant made two applications in the IRC which are the basis of these Proceedings. The ADB accepted that complaint for investigation as it related to the period from 8 February 2016 – 8 February 2017. During this period of time the Applicant was not employed by the Respondent. The complaints relate to allegations by the Applicant that she has been discriminated against on the basis of age and disability by: (i) being declined teaching approval by the Respondent; (ii) being placed on the Not To Be Employed List; (iii) being denied casual employment and the opportunity for casual teaching duties; and (iv) the Respondent allowing casuals and temporary teachers, much younger to remain in full time employment during 2016. (b) Section 167 of the IR Act deals with the intervention in IRC proceedings by the Minister, ADB and State Peak Council. In particular, section 167(2) of the IR Act states that "The President of the Anti-Discrimination Board may intervene in any proceedings of the Commission if the President of that Board establishes that the proceedings concern unlawful discrimination under the Anti-Discrimination Act 1977." (c) The Respondent acknowledges that there is a separate process currently underway before the ADB. However, the Respondent is not aware of any intervention by the President of the ADB in these Proceedings. The Applicant has not filed any evidence establishing that the President of the ADB has intervened in the Proceedings. As such, section 167 of the IR Act has no relevance or application to the applicant's Motion. (d) Section 169 of the IR Act states that "An issue that is the subject of proceedings before the Civil and Administrative Tribunal in relation to a matter arising under the Anti-Discrimination Act 1977 may not be the subject of proceedings before the Commission without the leave of the Commission." Firstly, the subject matter of the complaint before the ADB is different to the subject matter of the Proceedings. Secondly, the Applicant's complaint is before the ADB and does not constitute proceedings before the Civil and Administrative Tribunal. As such, section 169 of the IR Act has no relevance or application to the applicant's Motion. (e) There is no legal basis to the claim that a stay in the Proceedings came into effect due to alleged breaches of sections 167 and 169 of the IR Act. Accordingly, the Applicant's Third Claim must be rejected." 1. The applicant relied on her motion, affidavit in support and written submissions filed in reply to the respondent's submissions, which effectively repeat what was in her affidavit with the addition of some further unsupported allegations of wrongdoing by various persons. Included is an allegation of discrimination against her by the Commission as presently constituted for failing to require the respondent to remove her name from the "Not to be employed list". Notably the applicant submitted that the respondent and the Commission have, respectively, obstructed or failed to assist with the just and quick resolution of her claims. 2. At the hearing the applicant provided some further written submissions which were marked as Exhibit 2 in the proceedings. In short, in the last document she referred to her complaint(s) to the Anti-Discrimination Board as causing a stay of the proceedings before the Commission. Ms Rous also referred to a Deed of Release alleged to be in settlement of proceedings before a federal court and indicated that would be "reactivated in due course". 3. Notwithstanding her reluctance to speak, I encouraged the applicant to inform me as to her intentions in relation to the prosecution of her proceedings. I extract below portions of transcript in which I sought from the applicant submissions to elucidate matters she appeared to raise. 1. As to legal advice: APPLICANT: I rely on all my affidavits and I'll just hand in these pieces of paper and there is nothing further I need to say until I have legal advice. HIS HONOUR: This is your opportunity to say something Ms Rous. You and I have discussed legal advice on several occasions now. You have indicated that you have not been able to get legal advice. You haven't indicated what steps you have taken and I have said to you, on several occasions, that there are many applicants in these proceedings and many parties who appear without legal representation. That is a matter the Commission takes into account, particularly where legal representation is present for another party in the proceedings. But the Commission cannot stop its proceedings interminably waiting for a party to obtain legal advice. A reasonable time is permitted. These proceedings have been on foot - these particular proceedings have been on foot since February of this year. They were commenced by you. There were discussions in March, April and May about legal advice. There is no sign of you obtaining any legal advice. So this is your chance to make submissions before I consider what steps I should take in relation to these proceedings. APPLICANT: I just hand you this piece of paper thank you. HIS HONOUR: Ms Rous has provided a document dated 30 October 2017 with the relevant matter numbers and a note. I will mark this document exhibit 2. An earlier note handed up by Ms Rous was exhibit 1. EXHIBIT #2 APPLICANT'S DOCUMENT DATED 30/10/17 TENDERED, ADMITTED WITHOUT OBJECTION (Emphasis added) I note that nothing in Exhibit 2 added to the information already advanced by the applicant about the likelihood of her obtaining legal assistance. 1. As to the Anti-Discrimination Board: Ms Rous accepted her complaint of 8 February 2018 to the Anti-Discrimination Board had been dismissed but suggested she had made another complaint. The respondent was unaware of any other complaint and the applicant was unable to provide any evidence of it. In any event the legislation only requires consideration of matters before the Civil and Administrative Tribunal to avoid duplication of proceedings about the same issues. As to that I asked: HIS HONOUR: The section that you rely upon in relation to anti-discrimination requires first proceedings before the Civil and Administrative Tribunal, not before the ADB. Is there any submission you want to make about that? APPLICANT: Well I can't comment further because until I have legal advice, but obviously if I need bypass them I'll easily bypass them but I assumed I had to wait for their assistance before it gets - because it is stated it needs to be referred to the Anti - to the Tribunal by the Anti-Discrimination Board. That's what the document states to me but if that's legally not necessarily the steps, if I can go straight to the tribunal, I can do that but obviously I don't have a lawyer advising me at this stage about that but it's certainly going to the tribunal. There were no proceedings identified before the Civil and Administrative Tribunal and therefore no issue of a stay arose. Nor has the Commission been advised since reserving that proceedings have been commenced in that Tribunal. 1. As to the impact of prior lawyers on her proceedings: HIS HONOUR: Have you taken any steps to get legal advice? APPLICANT: Well I sought a stay of proceedings because as you may be aware and the respondent is aware, the last legal representative destroyed the case. They were supposed to represent me. We are waiting for the Bar Association, Law Society to assist me because those legal representatives they destroyed the case so I paid all the money for them to destroy a case which is legally unfair and prejudicial to my matter here before the Commission. HIS HONOUR: You say those complaints are still before the Law Society and the Bar Association? APPLICANT: That's correct. HIS HONOUR: They haven't been dealt with yet? APPLICANT: No they haven't been unfortunately. Very disappointing. HIS HONOUR: When were they lodged? APPLICANT: They were lodged 24 May and 6 June. 24 May for the Bar Association and 6 June for the Law Society. HIS HONOUR: Which year? APPLICANT: 2016. Now Ms Barrett stated she was going to write the report in June from 19th and I've asked her she hasn't written the report from June 19 and she still hasn't replied to that. HIS HONOUR: Who is Ms Barrett? APPLICANT: She is the Deputy Director of the Bar Association. HIS HONOUR: What about the Law Society? APPLICANT: They state they're waiting for more information from me but I'm just going to state very simply that I've already given them the information and I'm not going to give them, labouring documents and documents which is the same documents as given to the Bar Association. It's a very simple breach is that ran it against anyway the lawyers. HIS HONOUR: So you don't propose to seek any further legal advice until those matters are resolved? APPLICANT: Until I get assistance because my matters has been prejudiced and I've been seeking a stay because of those matters. How am I supposed to represent myself against a government body when my lawyers themselves have actually prejudiced my case and they destroyed it, deliberately ran against my instructions which I've already told this Commission about that. HIS HONOUR: You made the allegation many times but these proceedings are not proceedings in which any lawyers have acted for you are they? APPLICANT: Not in these but this is what the instructions were to reinstate me under this particular Act. This is exactly what they were told to do. They shouldn't have ran them in the first place, I mean that's very clear to the Commission. HIS HONOUR: How can these proceedings be damaged by lawyers who have never appeared in them? APPLICANT: From the outset. What they were running was incorrect and that was already made clear in my statements and affidavits. HIS HONOUR: That was the section 84 proceedings wasn't it? APPLICANT: Yes but they were told to also update that under the Workers Compensation Act. HIS HONOUR: But the lawyers-- APPLICANT: Regardless of that, they still ran it against the Federal Court deed. HIS HONOUR: Who did? APPLICANT: All the lawyers. There are four lawyers and then there's the Bar Association which is looking at Leo Tyndall which is the counsel who took on the whole matter. They ran it all against the Federal Court deed and they refused to give me those directions initially. HIS HONOUR: There's nothing this Commission can do about the enforcement of the Federal Court Deed. APPLICANT: No it can't but they shouldn't have granted the - they should have mentioned what it breached. HIS HONOUR: My difficulty is Ms Rous that the legislation requires us to hear and determine cases brought before us, not leave them endlessly resting, waiting for somebody to do something. If you are determined not to do anything about prosecuting your case, then that's something I have to bear in mind when I come to decide what to do with it. You understand that the respondent is here saying that your failing to act in this case, in these two cases justifies termination of them. Do you understand that? APPLICANT: I understand what they've applied and I understand what grounds for an appeal I have and clearly, my matter's been damaged by the previous lawyers and I can't keep restating that. I've been unemployed now for three years. I'm actually homeless as well and under those circumstances not only did they damage my case, colluded with the respondent to damage my case but I've been unemployed so I've used up all the money. (Emphasis added) There followed a discussion with the applicant about the impropriety of making allegations such as "collusion" without evidence to support them. HIS HONOUR: That is quite improper. You made a number of allegations in your affidavit and submissions of collusion by various people. They don't appear to be supported by any evidence. APPLICANT: Well that's because I haven't put it in the correct terminology that a proper lawyer wold. That's my understanding of the reason why that evidence hasn't been taken on board. HIS HONOUR: Do you understand what collusion is? APPLICANT: I do. HIS HONOUR: You understand it is a very serious allegation? APPLICANT: I do yes. HIS HONOUR: You understand it is an allegation of criminality? APPLICANT: Yes I do understand and that's why I say, it couldn't be a coincidence after three years now. The matters continue to run for the benefit of the respondent. HIS HONOUR: How are they being run for the benefit of the respondent? APPLICANT: Well look I haven't actually come here to argue and present papers because I can't. There's no point me saying to you one point that comes to my head with no benefit of legal knowledge or what I should be saying. I mean all it is, is just going to damage my case. HIS HONOUR: You can tell me why it is that you are not prepared to run your case. APPLICANT: Because my lawyers have damaged my case, they ran it deliberately against section 90. They know the Federal Court— (Emphasis added) The circularity of the applicant's arguments are evident. Consideration The Respondents Motion 1. The comments of Commissioner Newall in Kabir v Department of Family and Community Services [2016] NSWIRC 1009, have particular resonance in this case. The Commissioner said 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 (Emphasis added) 1. I agree with the Commissioner's analysis and conclusions. 2. In these matters, despite numerous explanations by the Commission of the obligation upon it to hear and determine proceedings, and of the obligations of parties to assist in the fulfilment of that obligation, the applicant refuses to take steps to advance her proceedings. I find therefore that the applicant has not complied with the Commission's directions of 18 May 2017 in relation to these two proceedings. 3. In balancing the prejudice to the parties I note that the respondent has been confronted by three separate sets of proceedings in this Commission. In the first of those the applicant sought an adjournment on the basis of her "unfitness" to conduct the proceedings. Later she abandoned those proceedings having commenced the instant proceedings. The Commission and the respondent have recognised her lack of representation and directions have been shaped, having regard to s 56(1) of the CP Act, with a view to mitigating any disadvantage which may flow from that. Nevertheless the applicant has made no attempt to comply with those directions contrary to the obligation imposed upon her by s 56(3) of the CP Act.. 4. Even when the respondent had the matter relisted to consider varying the directions the applicant refused to appear. When she did appear in response to the respondent's motion there was no change in the applicant's attitude to her obligations. 5. The result is the respondent has incurred costs and inconvenience. There is no sign of that prejudice abating. 6. The prejudice to the applicant is the loss of her proceedings. In that regard it is relevant to consider the prospects of success of these claims. In my view, for the reasons advanced by the respondent, the applicant has limited prospects of success. I accept the submissions of the respondent that substantial jurisdictional issues confront the applicant in each matter. 7. In the Victimisation Application there is no suggestion on the material advanced by the applicant in her affidavits or in the application itself to suggest there has been action by the respondent for any of the reasons proscribed by s 210(1) of the IR Act. Although the applicant alleges in her Victimisation Application that factual circumstances exist which meet the description of proscribed reasons in s 210(1)(b), (e), (f) and (g) there is no alleged connection between those alleged facts and the alleged victimisation. For most of the alleged circumstances the relevant fact has arisen after the alleged victimisation and therefore the prospect of a connection is at best remote. 8. In the Injured Worker Application it is evident on the admissions of the applicant that she has not fulfilled an essential prerequisite to her claim. More importantly it is also evident, from the entire history of her claims, that her employment was not terminated because she was not fit (medically) for employment, but for reasons of alleged misconduct. 9. The balance therefore weighs in favour of the respondent. 10. In addition, there is no sign given by the applicant that she will be, in the foreseeable future, in a position to advance her claims. She remains determined not to prosecute them without legal assistance and there is no indication that legal assistance will be forthcoming. Indeed the contrary seems to be the case. Just as for the applicant in Kabir, I do not regard the absence of representation as providing an immunity from a party's obligations under the CP Act or the UCPR. 11. I conclude, therefore, that I should exercise the powers granted by s 61(3) of the CP Act, and make orders sought by the respondent in its motion with some slight amendment to conform to the language of the CP Act. The Applicant's Motion 1. The success of the respondent's motion effectively renders otiose the applicant's motion. I will nevertheless make some short observations about it. 2. In general I accept the submissions of the respondent outlined above. The first and second claims are, for the reasons identified by the respondent, without substance. 3. Similarly the third claim lacks substance, not merely for the reasons identified in the respondent's written submissions but also because of Exhibit 3. The exhibit is a letter from the Anti-Discrimination Board declining the complaint which had been identified in the applicant's motion as forming the basis of her claim for a stay. As the respondent submitted, there is no evidence, or even assertion by the applicant, of proceedings before the Civil and Administrative Tribunal. 4. The applicant did assert at one point that there was another complaint before the Anti-Discrimination Board. When questioned about it however she appeared to abandon reliance upon such a complaint. I do not accept that another complaint exists but even if I be wrong in that conclusion there is no suggestion that it has progressed to the Civil and Administrative Tribunal and therefore no question of identity of issues arises as required under s 169 of the IR Act. 5. For these reasons I dismiss the applicant's motion. Orders 1. I order: 1. The applicant's motion filed 18 September 2018 is dismissed. 2. The Application for Relief from Victimisation filed by Zlata Rous on 13 April 2017 in (IRC proceedings No.112639 of 2017) is dismissed. 3. The Application for Reinstatement of Injured Worker filed by Zlata Rous on 23 February 2017 (IRC proceedings No 57827 of 2017) is dismissed. ********** Amendments 29 March 2018 - At paragraph 11 affidavit sworn 18 September 2018 should read 18 September 2017. At paragraph 21 - reference that Ms Rous complaint of 8 February 2018 to the Anti-Discrimination Board - should read 8 February 2017. At paragraph 39 order 1 - the applicant's motion filed 18 September 2018 is dismissed - should read 18 September 2017 is dismissed 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: 29 March 2018