Burns v Nepean Blue Mountains Local Health District [2018] NSWIRComm 1020

Industrial Relations Commission New South Wales Medium Neutral Citation: Burns v Nepean Blue Mountains Local Health District [2018] NSWIRComm 1020 Hearing dates: 3 April 2018 Date of orders: 03 April 2018 Decision date: 03 April 2018 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The unfair dismissal application by Ricky Burns is dismissed Catchwords: UNFAIR DISMISSAL – failure to comply with Commission's directions – no satisfactory explanation for applicant's failure – failure to prosecute proceedings with due despatch – application dismissed Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Rous v Department of Education and Communities [2018] NSWIRComm 1017 Kabir v Department of Family and Community Services [2016] NSWIRComm 1009 Category: Principal judgment Parties: Ricky Burns (Applicant)

Nepean Blue Mountains Local Health District (Respondent) Representation: Solicitors: Mr Darren Gardner, Bartier Perry Lawyers (Respondent) File Number(s): 2017/00376799

EX TEMPORE DECISION 1. In this matter the Chief Commissioner made directions on 17 January 2018. The first of those directions was that all evidence in the proceedings shall be by way of signed written statements, comprising the witnesses' evidence. The second direction was that the applicant is to file and serve all written statements to be relied upon for each witness, together with any other relevant documentation, by 7 February 2018. 2. The applicant, Mr Burns, who is representing himself in these proceedings, failed to comply with that direction and on 14 February 2018 he was contacted by Mr Darren Gardner, solicitor for the respondent. According to the affidavit of Mr Gardner, which was filed in the proceedings and admitted into evidence today and not challenged, Mr Gardner telephoned and had a conversation with the applicant in which the applicant said words to this effect, "I've not been able to file any evidence because my father has been sick. I've been away caring for my father." Mr Gardner, on behalf of the respondent, agreed to a variation of the directions to allow the applicant further time to file and serve his witness statements. 3. By consent of the parties, the directions originally made by the Chief Commissioner were varied by the Industrial Registrar and the applicant was given until 28 February 2018 to file and serve his evidentiary material. The applicant again failed to comply with that direction. 4. The respondent has moved the Commission to dismiss the applicant's unfair dismissal application pursuant to Part 12, rule 7 of the Uniform Civil Procedure Rules 2005, which provides, in sub-rule 1, "If a plaintiff does not prosecute the proceedings with due dispatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit." There is also power under section 61(3) of the Civil Procedure Act 2005 for a court to dismiss a proceeding where there has been a failure to comply with directions, as has occurred in this case. 5. This power was recently considered by the Chief Commissioner in the matter of Rous v Department of Education and Communities ([2018] NSWIRComm 1017), in which the Chief Commissioner dismissed the applicant's unfair dismissal application on the basis of the applicant's failure to prosecute her claim. In that decision, the Chief Commissioner referred to and endorsed the approach of Commissioner Newall in the matter of Kabir v Department of Family and Community Services ([2016] NSWIRComm 1009), in which Commissioner Newall stated as follows at [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 despatch. 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. 1. In this case the only reason that has been proffered by the applicant for his failure to twice comply with directions made by the Commission was that there had been some health issues relating to his parents. That reason, in my judgement, is insufficient to excuse the applicant's failure on two occasions to comply with the Commission's directions. I note that the applicant, himself, has, at no time, approached the Commission to seek a variation to either set of directions or to explain why such variation was required. 2. I, therefore, dismiss the applicant's unfair dismissal application pursuant to Part 12, rule 7 of the Uniform Civil Procedure Rules for failure, on the part of the applicant, to prosecute the proceedings with due despatch. 3. I so order. John Murphy 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: 05 April 2018