Industrial Relations Commission New South Wales Medium Neutral Citation: Mark Woodman v South Eastern Sydney Area Health Service [2018] NSWIRComm 1025 Hearing dates: In Chambers Date of orders: 17 May 2018 Decision date: 17 May 2018 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC Decision: The application is dismissed. Catchwords: Practice and procedure – repeated failure to comply with directions – duty of parties and their lawyers to assist in the just cheap and quick resolution of proceedings hearing dates twice vacated due to applicant's default – prejudice to respondent and other parties Legislation Cited: Uniform Civil Procedure Act 2005 Industrial Relations Act 1996 Uniform Civil Procedure Act 2005 (NSW) Cases Cited: Rous v Department of Education and Communities [2018] NSWIRComm 1017 Kabir v Department of Family and Community Services [2016] NSWIRC 1009 Category: Procedural and other rulings Parties: Mark Woodman (Applicant) South Eastern Sydney Area Health Service (Respondent) Representation: Solicitors: Attia Lawyers and Consultants (Applicant) Bartier Perry (Respondents) File Number(s): 2017/316419 Judgment 1. On 21 February 2018 Commissioner Newall made the following orders: 1. The directions made on 31 January 2018 concerning the filing of evidence by the respondent evidence in reply by the applicant of vacated, and the parties are excused compliance with them. 2. The hearing dates of 23, 24 and 25 May 2018 are vacated. 3. The applicant is by close of business on Friday 9 March to file a short submission showing cause why the application ought not be dismissed for want of due dispatch and repeated breach of directions. If such a submission showing cause is filed and served by 9 March 2018, the respondent is to file and serve a short submission in reply by close of business on 16 March 2018. The Commission will then determine the matter in Chambers. 4. If no submission is received from the applicant by close of business on Friday, 9 March 2018, the application pursuant to section 84 will be dismissed. 1. These orders were made after repeated non-compliance had led to two variations of the Commission's directions. It is appropriate to review that history. Procedural history 1. Following an unsuccessful conciliation Commissioner Murphy made the standard directions consistent with Practice Note 17A. It is timely to note the terms of paragraph 11 of the Practice Note. It provides: 11. Compliance with Directions The 'usual directions' pursuant to cl 7 of this Practice Note or variations thereto pursuant to cl 10 must be complied with unless an application to vary directions is made in writing containing full supporting grounds and the Commission determines to vary the directions. Such an application must be made prior to the date fixed under the direction which is sought to be varied unless leave is granted by a Member to entertain the application at a later time. 1. The timetable contemplated by the standard directions was varied to double the time available to the applicant to prepare and file his evidence and submissions. Shortly after those directions were made the matter was listed for hearing over five days commencing 27 February 2018. The applicant's evidence was due by 18 December 2017. That date passed without compliance or any application for variation. On 21 December 2017 the applicant's solicitors advised that the applicant was in South Africa until early January 2018 and belatedly sought variation of the directions. 2. On the same day the respondent made submissions noting the impact upon it of the non-compliance by the applicant. 3. The variation was granted by the Industrial Registrar. The Registrar went on to say: "I will vary the current timetable, however there will be no further variations granted, new directions will follow shortly. Please note that it is a requirement that parties notify the Commission as soon as they become aware that they will not be able to meet the directions issued by the Commission. Please see our recent announcement regarding obligations and requirements relating to case management." (Emphasis added) 1. I pause to note that on 1 December 2017 the Commission published on its website an announcement reminding parties of the onus on them to comply with directions or seek variations as soon as non-compliance appeared likely. The announcement warned of consequences including remedies under Part 6 of the Uniform Civil Procedure Act 2005. 2. By notice dated 22 December 2017 the Registrar advised the new directions to the parties. The applicant was required to file and serve its material by 15 January 2018. 3. Notwithstanding the warning issued by the Registrar in her email of 22 December the applicant's solicitors wrote to the Commission and the respondents solicitors, by email dated 17 January 2018, seeking a variation of the revised timetable. At that time reliance was placed upon the firm's recent employment of Mr Basiacik and the need to obtain counsel's advice on the evidence to be filed. No precise date by which filing would be completed was stated. The only indication was that it would be filed shortly. 4. On the same date the respondent's solicitors wrote to the Commission, and copied the applicant's solicitors, complaining of this second occasion on which the applicant had failed to comply with directions of the Commission and failed to seek any variation of those directions. The respondent sought the matter be dismissed for non-compliance. 5. Commissioner Newall decided on 18 January 2018, because of the repeated non-compliance, to vacate the hearing dates commencing 27 February 2018 and to list the matter for directions on 31 January. The applicant filed his evidence on 29 January 2018. No outline of submissions was filed. At the directions hearing the Commissioner issued new directions and, on a revised estimate of three days, set the matter down for hearing from 23 to 25 May 2018. In his statement of 21 February 2018 the Commissioner noted that: "One of the directions made [on 31 January] was that the applicant was to file and serve a short outline of submissions by 12 February 2018. This was fundamentally important, as the case involves an assertion of constructive dismissal, and the respondent's evidence was likely to be determined by the submissions advanced. It was made clear to both parties in the directions made on 31 January that further non-compliance by either party would not be accepted. The applicant did not file and serve the required outline on 12 February 2018, and to date has neither filed the outline nor offered any explanation as to why it has not been filed." (Emphasis added) 1. Then followed the directions set out in [1] above. 2. On 2 March 2018 the applicant filed, consistent with order three of 21 February 2018, a short submission seeking to show cause why the application ought not be dismissed. The submission was supported by an affidavit of Cevdet Osman Basiacik, a solicitor in the employ of the applicant's solicitors. 3. On 15 March 2018 the respondent filed an outline of submissions, also consistent with order three above, supported by an affidavit of James Bernard Mattson, the solicitor in the employ of the respondent's solicitors with the day-to-day carriage of the matter. 4. On 28 March 2018 an affidavit by Muhammad Elias Attia, principal of the firm Attia Lawyers and Consultants – the applicant's solicitors, was filed, purportedly in reply to Mr Mattson's affidavit. 5. Mr Mattson, by email to the Industrial Registrar, objected to the last affidavit on the basis that no order had been made about reply material and the affidavit was not truly in reply. Mr Attia, by email, disputed the latter point. 6. I observe that Commissioner Newall's orders did not make any provision, at all, for affidavits. The orders directed "short submissions" and indicated a decision would be made in Chambers. 7. Commissioner Newall has since resigned his commission and the matter has been allocated to me for determination. I note the ability to determine the matter in the way directed by the Commissioner is authorised by s 162 (2) (d) and s 163 of the Industrial Relations Act 1996. 8. Given the terms of the Commissioner's orders it seems to me either all of the affidavit material is excluded or none of it. The affidavits in any event do little more than confirm what is in the submissions. I will have regard to all of the affidavits. Parties Submissions 1. The applicant submits: 1. The delays are the fault of the lawyers and not the applicant. That the lawyers are at fault for the most part appears plain on the affidavit material. 2. The applicant should not suffer from the default of his lawyers. That submission is open to question, given the applicant's decision to travel to South Africa in late December 2017 and early January 2018 and because the applicant is responsible for instructing his lawyers. 3. Further delays in the case are unlikely as the applicant has filed an outline of argument and all of the evidence in his case. 4. Finally, it is submitted that no specific prejudice is claimed by the respondent. 1. The respondent detailed the history of non-compliance, by the applicant and/or his lawyers, which prompted the show cause direction by Commissioner Newall. It emphasised that the non-compliance continued even after Commissioner Newall gave an explicit warning of the potential consequences. The respondent was also critical of the absence of an affidavit of Mr Attia in support of the applicant's submissions, though, as I have noted, the directions did not contemplate evidence. It was also critical of the weight which may be given to the affidavit Mr Basiacik. 2. The respondent complains of non-compliance with a notice to produce issued pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 (UCPR). I observe that a notice to produce is a mechanism to compel production. Non-production does not equate to non-compliance; for example, if no documents exist. It is for that reason that alleged non-compliance with such a notice is dealt with differently from non-compliance with orders or directions. Moreover, Part 21 of the UCPR does not apply to Commission proceedings unless expressly so directed. I am not aware of any such direction being made in this case. 3. The respondent asserts prejudice in several respects: 1. non-compliance has interrupted the respondents evidence preparation; 2. non-compliance has caused the respondent to incur additional legal costs; 3. it is possible that the recollection of key witnesses will have been affected by the passage of time; and 4. there is prejudice to the Commission and other litigants. 1. The respondent also submits that if the applicant has suffered because of the default of his lawyers he may have a remedy in another place. 2. Further, the respondent submits that the applicant's prospects of success are limited. It notes that the applicant resigned during a disciplinary process. That much is accepted, it is said by the applicant that resignation in the face of certain termination of employment amounts to a constructive dismissal. The contentions on that point are too finely balanced to weigh heavily in the consideration of the current issue. Consideration 1. Most telling in my view is the respondent's submission that the warnings issued by the Commission, clear and direct as they were, are assumed to be seriously advanced. They were. The terms of paragraph 11 of Practice Note 17A are clear. The warning and reminder of the Registrar on 22 December were clear. There is no doubt the applicant failed to comply with the directions made after each of those events. Moreover, the warning delivered on 31 January was expressly directed to the parties in this matter in circumstances of unexplained non-compliance by the applicant. Again the applicant was in default without prior notice, explanation or application for variation. 2. Parties cannot expect to be able to treat the directions of the Commission, with its limited resources, as mere guidelines. Directions are made for a reason. They are to facilitate, in the terms of s 56 of the Uniform Civil Procedure Act 2005 (NSW), "the just quick and cheap resolution of the real issues in the proceedings". The applicant, through his solicitors, has wantonly failed to treat the directions with the seriousness they deserve. As soon as Mr Attia was aware, or contemplated the possibility of an inability to comply with the directions he should have made an application for variation. He did not. 3. The repeated failures by the applicant, albeit largely through the fault of his solicitors, cannot be ignored. 4. The respondent is right to point out that the failures have had a direct impact upon it and upon other persons seeking to come to the Commission to seek its assistance in the resolution of their disputes. 5. I had cause recently to set out the legislation and comment upon the law and practice in relation to matters such as the present in Rous v Department of Education and Communities [2018] NSWIRComm 1017 particularly at [14]–[15] and [22]-[23] and it is unnecessary to repeat it here. I do repeat the comments of Commissioner Newall in Kabir v Department of Family and Community Services [2016] NSWIRC 1009 at [13]-[14]. The Commissioner said: [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. (Emphasis added) 1. In this case the Commission has had to consistently revisit, vacate and make new directions and has vacated a total of 8 hearing days because of the default of the applicant. 2. The application of the Civil Procedure Act and the UCPR require in this instance that the application be dismissed for want of due despatch and repeated non-compliance with directions. Order 1. The application 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: 17 May 2018