Industrial Relations Commission New South Wales Medium Neutral Citation: Bouskila v Corrective Services NSW [2019] NSWIRComm 1061 Hearing dates: 18 July 2018 Date of orders: 30 August 2019 Decision date: 30 August 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Stanton Decision: The application is dismissed Catchwords: Practice and procedure – Notice of Motion – orders sought to dismiss proceedings – Rule 12.7 of the Uniform Civil Procedure Rules 2005 – failure to prosecute the proceedings with due despatch – Civil Procedure Act 2005 - repeated failure of applicant to comply with Directions timetable and the obligations imposed on parties under Practice Note 17A – hearing dates vacated-prejudice considered - proceedings dismissed pursuant to Rule 12.7 and s 61(3) of the Civil Procedure Act 2005 Legislation Cited: Civil Procedure Act 2005 (NSW) Industrial Relations Act 1996 Uniform Civil Procedure Rules 2005 (NSW) Workers Compensation Act 1987 (NSW Cases Cited: Anley and Department of Education and Training [2009] NSWIRComm 39 Aon Risk Services Ltd v Australian National University (2005) 239 CLR 175 Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1 Bi v Mourad [2010] NSWCA 17 Burns v Nepean Blue Mountains Local Health District [2018] NSWIRComm 1020 Hoser v Hartcher [1999] NSWSC 527 Kabir v Department of Family and Community Services [2016] NSWIRComm 1009 McMahon v John Fairfax Publications [2010] NSWCA 308 Micallef v ICI Australia Operations Pty Ltd & Anor Rozenblit v Vainer [2018] HCA 23; (2018) 92 ALJR 600 Woodman v South Eastern Sydney Area Health Service [2018] NSWIRComm 1025 Texts Cited: Practice Note 17A Practice Note 17 Category: Procedural and other rulings Parties: Danielle Celine Bouskila Corrective Services NSW Representation: Mr M Sullivan, solicitor for the applicant on the Motion Mr S Sykes of counsel for the respondent on the Motion Solicitors: Landers & Rodgers (applicant on the Motion) Elmassian Lawyers (respondent on the Motion) File Number(s): 2018/00010665 Judgment 1. The respondent and applicant on the motion, Corrective Services NSW, by notice of motion filed 4 May 2018, seek pursuant to Rule 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) that these proceedings be dismissed for her failure to prosecute them with due despatch. The respondent also sought to rely on s 61(3) of the Civil Procedure Act 2005. 2. Rule 12.7 of the Uniform Civil Procedure Rules relevantly provides: (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. (2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit. 1. Section 61(3) of the Civil Procedure Act states: 61 Directions as to practice and procedure generally … (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. 1. When considering whether to make an order, the Commission must seek to act in accordance with the dictates of justice and, in particular, have regard to s 56 and s 57, as well as the criteria in s 58(2) of the Civil Procedure Act. Moreover, the issues subject to arbitration in this matter do not appear on their face to be overly complex. 2. Section 56(1) of the Civil Procedure Act recites the objective of facilitating the just, quick and cheap resolution of proceedings. Moreover, s 57 directs the parties' attention to the objects of case management, which extends to the needs and interests of other litigants and not just those conducting the subject proceedings. 3. The application is supported by an affidavit from Mr Mark Sullivan, solicitor for the respondent sworn 8 May 2018. The affidavit was read without objection. Mr Sullivan was not cross-examined. 4. The respondent contends the applicant (respondent on the motion} has not prosecuted her case with due despatch. It is necessary to review the procedural history in some detail in order to understand that allegation. Procedural history 1. The applicant in this matter, Ms Danielle Bouskila, filed an application pursuant to s 84 of the Industrial Relations Act 1996 (the Act) on 11 January 2018. The Employer's Reply was filed by the respondent, Corrective Services NSW, on 2 February 2018. The Employer's Reply also noted the applicant had been absent from work since 18 September 2015 following the lodgement of a workers' compensation claim. 2. The application was subject to conciliation before Commissioner Murphy on 5 February 2018. The application was unable to be settled in conciliation and Directions for arbitration were subsequently made with the applicant being required to file and serve her evidentiary case by 26 February 2018. Those orders provided that without leave of the Commission, written statements and other documentation filed and served later than that time may not be relied upon by a party. 3. The respondent contends the applicant has failed to prosecute her application with due despatch, as evidenced by her failure to file to comply with three sets of consecutive orders made by the IRC requiring her to file her evidentiary case initially by 26 February, then 26 March and subsequently 20 April 2018. Chronology post Directions made 5 February 2018 1. The following chronology is drawn from the evidentiary material filed by the parties including the affidavit filed by Mr Sullivan in support of the motion and an affidavit filed by the applicant's solicitor, Mr Geoffrey Adelstein on 1 June 2018. 2. On 6 February 2018, the respondent wrote to the applicant's Solicitor, Mr Geoffrey Adelstein and advised that the applicant's medical termination was based on the medical certificate from her GP "which advised that she was unable to commute to the new location due to her medical condition of epilepsy in relation to the distance she would need to travel". 3. Mr Adelstein wrote to Commissioner Murphy on 19 February 2018 advising him that given the applicant had been medically retired based on the medical certificate from her GP concerning her Epilepsy. Mr Adelstein subsequently advised: We will be seeking a further report from the GP to clarify matters and this will delay our compliance with Directions. As soon as we are able to procure that report, we will follow material as required. 1. Mr Adelstein also wrote to the respondent by email on 22 February 2018 stating: We note that as your reasoning for determining Ms Bouskila medically retired was result of her medical certificate given by her GP, a matter which on the face is significantly different to the original assertions, we will need to seek from Ms Bouskila's GP a further report to clarify her Epilepsy. As a result, this will delay our compliance with the Directions. We therefore seek your Consent to have our written statements filed and served by 19 March 2018. 1. Mr Adelstein subsequently wrote to the respondent by email on 22 February 2018 requesting consent to a request that the applicant now file her evidentiary case by 19 March 2018 on the grounds that; … we will need to seek from Ms Bouskila's GP a further report to clarify her Epilepsy. 1. On 27 February 2018, the Registrar listed the application for hearing before Commissioner Newall from 4 to 6 June 2018. 2. The respondent's solicitor, Mr Mark Sullivan, wrote to Mr Adelstein on 27 February 2018 and advised him that the respondent did not agree with the proposition that the applicant's reliance on a fresh medical report justified the extension of time now sought. In that regard, Mr Sullivan noted the Employer's Reply stated at paragraph 41: On 25 September 2017, the respondent (sic) advised that she was unable to commute to the new location due to her medical condition of epilepsy and provided a medical certificate advising of same. The respondent subsequently agreed to the timetable being extended by 14 days at each step. 1. The Registrar formally varied the timetable for filing on 27 February 2018 by requiring the applicant file her evidence by 26 March 2018. The Registrar also warned the parties that "any variation to the timetable needs to be applied for prior to lodgement date or evidence will not be admitted". 2. On 2 March 2018, the Registrar vacated the proposed hearing dates of 4 to 6 June to 12 to 14 June 2018. 3. On or around 16 March 2018, Mr Sullivan made enquiries with Mr Adelstein by telephone concerning the progress of the applicant's evidence. During the course of that conversation, Mr Adelstein foreshadowed the applicant required additional time to file her evidence. 4. The applicant subsequently failed to file and serve her evidence as required by no later than 26 March 2018. The applicant also failed to comply with the variation of timetable conditions attached imposed by the Registrar on 27 February 2018. 5. In email correspondence to Mr Adelstein dated 3 April 2018, Mr Sullivan sought the reasons for the applicant's failure to file her evidence by 26 March 2018. Mr Sullivan also made enquiries concerning whether the applicant would be continuing to pursue her application and if so, he proposed a new timetable be sought from the Commission by consent requiring the applicant to file her evidence by 20 April 2018 with no changed to the proposed hearing dates of 12 to 14 June 2018: If agreed, we request that you make the requisite application to the Commission by consent, and noting the explanation for the delay. For the period from 9 April to 4 May inclusive, please send correspondence to Isabel Hewitt, who will have carriage of the matter. 1. Mr Adelstein wrote to the Registrar on 6 April 2018 concerning the applicant's non-compliance with the requirement that she file her evidence by 26 March 2018. By way of explanation, Mr Adelstein informed the Registrar that the applicant was involved in a motor vehicle accident on an undisclosed date and had suffered personal injury which had caused complications including "instructing us in regards to her evidence". Mr Adelstein proposed in part: The hearing dates be vacated; The applicant to file and serve her evidence by 20 April 2018; The matter be listed for further Directions after 1 June 2018 for the Commission to be satisfied that the matter is ready to proceed to hearing; and A new hearing date to be allocated after 4 August 2018 as he would be overseas from mid-June to August. 1. Orders requiring the applicant to file and serve her evidence by 20 April 2018 were made by the Registrar on 12 April 2018. The hearing dates scheduled for 12 to 14 June 2018 were vacated and the matter was listed for Directions on 29 June 2018 with the hearing now scheduled for 14 to 16 August 2018. 2. On 16 April 2018, certain orders were made in error concerning the parties' availability for a hearing during June to July 2018. 3. The respondent's solicitors contacted the Registry later that day and were advised that the particular orders were made in error. The respondent's solicitors also contacted Mr Adelstein concerning this particular error on 16 April 2018. Mr Adelstein was unavailable and a request was made with the receptionist for him to return the telephone call. The respondent's legal representatives maintain no return phone call was made. 4. The Commission Registry wrote to Mr Adelstein by email on 1 May 2018 requesting an update concerning the applicant's evidence that was due to be filed and served by 20 April 2018. 5. Mr Adelstein sent email correspondence to the Commission on 2 May 2018 concerning certain orders made in error on 16 April 2018 related to the parties' availability for a hearing during June to July 2018. He did not respond concerning the applicant's non-compliance with the orders dated 12 April concerning the requirement to file her evidence by 20 April 2018. 6. Mr Adelstein also advised that he would be overseas between 22 June and 4 August 2018. Further, given the medical report concerning the applicant's epilepsy would not be available from "her treating specialist" until early August, Mr Adelstein proposed the hearing dates be varied to the weeks commencing 27 August, 3 and 10 September 2018. 7. The proposed hearing dates of 14 to 17 August 2018 were reconfirmed by the Registrar in an email to the parties dated 3 May 2018. The Registrar also informed Mr Adelstein: Any variation of the current listing dates will require a motion to vacate the hearing dates including applicable reasons. I would suggest familiarising yourself with the practice notes for the Industrial Relations Commission. Evidence Respondent on the Motion 1. The respondent on the motion (the applicant) read an affidavit filed by Ms Danielle Bouskila on 11 July 2018 in response to the respondent's application to dismiss the proceedings. Ms Bouskila was required for cross examination. The applicant also read an affidavit filed by her solicitor, Mr Geoffrey Adelstein on 1 June 2018. Mr Adelstein was not required for cross-examination Ms Danielle Bouskila Motor vehicle accident 1. Ms Bouskila deposed she was involved in a "major motor vehicle collision" where the at fault driver drove through a red light and collided with her vehicle on the right-hand side, T-boning her vehicle and causing it to skid and hit a traffic light pole on the opposite side of the road. She was taken by ambulance to St Vincent's Hospital and discharged the following day. 2. Two photos depicting vehicle damage were attached to her affidavit. 3. Ms Bouskila was prescribed Endone medication for pain relief which she took twice daily for 4 to 6 weeks after the accident. She subsequently reduced her intake of Endone to an "as-needed basis". During this time, Ms Bouskila's mother visited her daily to assist her with domestic duties. 4. Ms Bouskila contended that Endone made her feel lightheaded, lethargic and drowsy. Accordingly, she was unable to provide instructions to her solicitors and recalled telling her solicitor that she was unable to provide instructions that he required by telephone. Medical evidence 1. Ms Bouskila stated she understood the respondent's decision to dismiss her was based on a medical certificate provided by her GP, Dr Chuah stating the fact that she suffered from epilepsy and "there were issues with my ability to travel to work". 2. Ms Bouskila deposed she was diagnosed with epilepsy the age of 14 and had been consulting her specialist neurologist, Dr Somerville "at least once a year" since her diagnosis. Moreover, for the past two years, Dr Somerville had conducted a "check-up" over the telephone as there were no issues that required a face-to-face consultation. 3. It was Ms Bouskila's evidence that she understood "that a report from my specialist was needed rather from the GP who provided the medical certificate". 4. Ms Bouskila contacted Dr Somerville on 9 April 2018 seeking an appointment with him as soon as possible. Ms Bouskila recalled the receptionist at Randwick Hospital stating at the time, words to the effect that "the earliest time he could see you is on 16 July 2018". Ms Bouskila accepted that appointment and advised that she would be available earlier in the event there was a patient cancellation prior to that date. She advised Mr Elmassian of the proposed appointment with Dr Somerville in email dated 9 April 2018. 5. In cross examination, Ms Bouskila was questioned on how she gained the understanding that a specialist's report rather than a report from her GP was required for these proceedings: Q. If I refer you then to paragraph 10 of your affidavit. Do you see there in the third sentence you say: "I understand that a report from my specialist is needed, rather than from the GP who provided the medical certificate." My question is when did you gain that understanding? A. I mean, I - in regards to epilepsy, that is the specialist that knows me the best and my history with epilepsy, yes. So I sort of-- Q. Sorry, the question is, if I go back then to that sentence, perhaps it needs to be read in the context of the latter part of the sentence, which says that rather than evidence, I take it to mean evidence from the GP who provided the medical certificate, a report from your specialist is needed. So what I'm asking you is when did you gain the understanding that, rather than something from the GP, a report from the specialist would be needed for these proceedings? A. I guess when the department medically retired me based on my epilepsy. My epilepsy is - the history, I guess, of my epilepsy is best known from my specialist, not my GP, because that's what they specialise in. Q. So you're saying then your evidence is that it was your understanding that a report from your specialist would be needed in relation to these proceedings from the time you were dismissed from employment. Is that your evidence? A. I mean, yes, but unfortunately I was involved in an accident which sort of put me out of activity for a while. Q. Yes, I understand that, but of course the accident occurred many months after or several months after your dismissal from employment, and my question is when did you understand that a report from your specialist would be needed for the purpose of these proceedings? A. So, I mean, technically when I understood, sorry, is when I was told that it would be needed, I guess, because I wasn't a hundred per cent sure what was needed, so-- Q. And who told you that? A. My GP as well as my, yeah, lawyer, I guess, yeah. Q. Sorry, and when were you told that? A. That would've been told on 9 April. That's when I called. Q. Sorry, so who told you on 9 April then that you would need a report from the specialist? A. My GP, as well as my lawyer. Q. So you had a conversation with your GP on 9 April? A. (No verbal reply) Q. And a conversation with your lawyer on 9 April? A. (No verbal reply). Q. Sorry, you have to speak in-- A. Yes. Q. --order to-- A. Sorry, yep. Q. Yes. So then I might need to go back to the original question. When did you gain an understanding that a report from your specialist, rather than from the GP, would be needed for these proceedings? A. So 9 April. Q. The 9th of April? A. Yeah. 1. Ms Bouskila confirmed that she was aware of the Directions made by Commissioner Murphy on 5 February 2018 for the filing of evidence and agreed that her evidence was to be filed by 26 February 2018. Ms Bouskila was also aware that her solicitor wrote to the Commission on 19 February 2018 to advise that the original timetable for filing of evidence required variation because a medical report was now required from her GP. 2. Ms Bouskila was aware that the Commission subsequently varied the timetable to provide that her evidence was required to be filed by 26 March 2018. Ms Bouskila was again aware that on 6 April 2018, her solicitor wrote the Commission seeking a further variation of the timetable to provide that her evidence was now required to be filed on 20 April 2018. 3. Ms Bouskila confirmed she was involved in a motor vehicle accident on 9 March 2018 and was released from hospital the following day. Ms B also confirmed that she remained at home recovering from her injuries for six weeks after the accident until approximately 20 April 2018. 4. Ms Bouskila also confirmed she was prescribed Endone will pain relief following the accident which made her feel lightheaded, lethargic and drowsy. It was Ms Bouskila's evidence that her pain medication prevented her from providing instructions to her solicitors. In that regard, Ms B confirmed that she advised her solicitor by email dated 9 April 2018 that she had made a "doctor's appointment" and 16 July 2018 was the earliest available date. Facebook and Instagram 1. A folder setting out 12 Facebook and Instagram entries, tabbed 1 to 12 and uploaded by Ms Bouskila between10 March 2018, the day she was discharge from hospital and 21 April 2018, the day after her evidence was to be filed with the Commission, was tendered by the respondent and marked Exhibit 4. 2. Tab 2 contained a photo of Ms Bouskila uploaded on 20 March 2018 with the caption, "Vote for Danielle Bouskila to be Jetset's next cover model". The following exchange in cross-examination ensued: Q. Now if you could turn to tab 2. Do you recognise this posting on Facebook? A. Yes. Q. And that occurred on 20 March? A. Yes. 1. Tab 3 referred to a YouTube video posted by Ms Bouskila on 23 March 2018 inviting her "followers" to view the video: … where I discuss with you all what I would do if I win Miss Universe Australia 2018 and receive a grant from the amazing@minespec_parts! The following exchange ensued: Q. And that was about asking people to vote in relation to a Miss Jetset 2018 competition? A. Yes. That's an online competition. Q. And that's effectively a modelling competition? A. Yep. Q. So you worked as a model outside of your previous employment? A. Yes. During this period of time where I haven't been able to be at work, I need to pay the bills, so I've been doing-- Q. And you worked as a model prior to that as well, didn't you, during employment? A. I mean, my managers were all aware, yes, and there was no issue. Q. If you go to tab 3, do you recall making this posting? A. Yes. Q. And that was made on 23 March 2018? A. Yes. Q. And you'll see there that you've posted a YouTube video where you discuss what you would do if you won Miss Universe Australia 2018? A. Yes, but that was - all the actual photos and the videos were created prior to the accident. Q. Right, I see. The posting, of course, occurred on 23 March? A. Yes. Q. So in relation to that posting, and also in relation to the posting I showed you of 20 March, the effects of the medication didn't prevent you from making those postings to Facebook. That's correct? A. The posts took two seconds to do. It was something that I just did, I guess, in between taking the medication. 1. Tab 4 contained a photo of Ms Bouskila posted on 25 March 2018 thanking @f45pottspoint "for their motivating and functional workout sessions". The entry also stated she was "still recovering and unable to properly participate myself". In relation to this particular entry, Ms Bouskila stated that she had been asked to make the post as part of the Miss Universe program. She did not attend the gym personally as she was still recovering from her injuries at that time. 2. Tab 5 was posted on 26 March 2018 and contained a photo of the Miss Universe NSW State Final 2018 contestants, including the applicant, with the following message: Hey guys the NSW state final is being held on April 20th so please come along and support all of us NSW girls including myself as we compete to represent our state in the National Final of Miss Universe Australia 2018! Ms Bouskila agreed in cross-examination that she was foreshadowing her attendance at the Miss Universe event on 20 April 2018 which was approximately six weeks after she was discharged from hospital following her motor vehicle accident. 1. Tab 6 was a photo posted on 28 March 2018 depicting Ms Bouskila's endorsement of a particular meal replacement product. Ms Bouskila stated the photo was taken some time prior to her motor vehicle accident. 2. Tab 7 was posted on 29 March 2018 and depicts Ms Bouskila's endorsement of a particular brand of yoghurt. She contended this photo was also taken prior to her accident. 3. Tab 8 contains four photographs with a caption wishing @f45pottspoint "Happy 2nd Birthday". The caption also stated: Thank you for the amazing high intensity training session this morning! You definitely kicked me into shape and I had an amazing time! The trainers are all so lovely and helped me every step of the way being that it was my first time back exercising whilst recovering still from most fractured sternum! Ms Bouskila stated that the photos contained in this post were taken prior to her accident "because we had to thank our sponsors in a post form for Miss Universe, it was a post I had to post. She also confirmed that a YouTube video was attached to this post. The following exchange ensued: Q. And you posted a video with that link? A. Yes. Again, a video created earlier. Q. Well, can I put it to you that in that video you refer to the fact that you had a fractured sternum? A. (No verbal reply) Q. Can I put that to you? A. There were parts of the video that were filmed prior and then parts that were filmed after. … Q. What I'm putting to you, Ms Bouskila, is in that video you refer to the fact that the trainers made allowances for the fact that you had a fractured sternum? A. That's me just describing, I guess, what a good experience it might be like at F45. Because when I had done an F45 session prior to the injury, that's how I felt. I felt very looked after, regardless of the fact that I wasn't injured at that time. So when I made some parts of the video which is just me just saying the intro and the outro, it wasn't the actual working out part of the video, I was just adding that in because then it would look more, I guess, like I had just done it that day. Q. So you were dubbing into the video references to the fact that you had a fractured sternum and that the trainers were making allowances? A. Yes, just because, I mean, when I did go prior to the injury they looked after me. They made sure I knew how to do the workouts. So for people that knew I was suffering from an injury, to make it seem more real, I guess, that's what I did. Because we had to do a post for that brand on that day. Q. And in that video you refer to the fact that the trainers substituted exercises for you to take account of that injury? A. Yes. I guess that was a bit of a fib in that video, yes. Q. And can I take you back to the post itself? A. That's what the modelling industry is but, unfortunately. I mean, when you do a post for a brand, you have to sell the brand. Q. You say there in, beginning on the third line, you say, "The trainers are all so lovely and helped me every step of the way, being that it is my first time back exercising whilst recovering still from my fractured sternum," exclamation mark? A. That's just to make the video and everything seem more real to my followers-- 1. Tab 9 contained two photos posted on 10 April 2018 depicting Ms Bouskila participating at a haircare workshop as part of the Miss Universe Australia program together with a You Tube video. Ms Bouskila confirmed that the contents of the post were made on that day. 2. Tab 10 was posted on 14 April 2018 and depicted a photo of Ms Bouskila endorsing a particular brand of hair products together with a YouTube video which she confirmed in cross examination was made and posted the same day. Ms Bouskila further confirmed a posting made on 20 April 2018 and set out under Tab 11 inviting followers to "Check out my morning routine" on YouTube was also posted on that day. 3. Tab 12 was posted by Ms Bouskila on 21 April 2018 and contained two photographs of contestants who participated in the Miss Universe New South Wales State Final the previous evening. Ms Bouskila subsequently confirmed that she attended the competition event on 20 April 2018. Video posted on 7 April 2018 1. The YouTube video which was included in Ms Bouskila's Instagram post on 7 April 2018 and set out under Tab 8 of Exhibit 4 was played to the Court. The following exchange subsequently ensued: Q. Ms Bouskila you've just been shown a video which is taken from the Facebook post behind tab 8 in the folder. Is that correct? A. Yes. Q. You included that YouTube video in the post on 7 April. A. Yes. Q. The video shows you at the Potts Point gym 45 is that correct? A. That section of the film was filmed earlier including the workout part. The only part that I had filmed on that day was the exiting the outer I guess you'd call it where I'm in front of the green bush and I did suggest that yeah I had the fractured sternum but it was I guess a bit of a lie because I actually didn't work out that day but I had to do that post on that day so that's why I said that. Q. When did the workout occur at the gym? A. That would have been in February I believe, end of February or early March before the accident. … Q. You referred to the second part of the video a moment ago, that's the commentary that occurs subsequent to the video of the workout? A. Yes. Q. In that commentary you refer to attention given to you by the trainers as a result of the fractured sternum? A. Yes that's correct. Q. You refer to alternative exercises given to you to take account of that injury. A. Yes that was I guess something that I made up a script I guess, because I was trying to obviously sell the 45 to my followers and people that were given the video. Q. So your evidence is that the trainers didn't do any of those things because you didn't have a fractured sternum at the time the workout occurred? A. I wasn't training— … Q. Is it your evidence that you attended the gym for a workout at any time post you incurring the fractured sternum injury? A. No, I didn't attend. … Q. And it's the case, isn't it, that the effects of the Endone that you were taking at the time didn't prevent you from preparing that video link on 7 April? A. I just want to highlight that video was on 7 April, which was a Saturday and that Monday was 9 April, which was when I was able to speak to my lawyer. COMMISSIONER: I think I need an answer to the question. SULLIVAN Q. The question was that the effects of the Endone didn't prevent you from preparing that video commentary on 7 April? A. Well, no, I quickly prepared it and then posted it and then took the Endone. Q. And it didn't prevent you from taking the previous video that you'd prepared, putting all of that together and posting it on the link on 7 April? A. Sorry? Q. It didn't prevent you from compiling the entire video that is shown on this post on 7 April? A. Well, the prior parts, like the first minute and a half or whatever it is of the video, which was filmed prior, that was sort of prepared already. It just wasn't finished and I wasn't able to upload it because it wasn't finished. So, because we had a deadline of when to post it, I just quickly finished it, doing the outro part, which is the part in front of the green bush and then finished it quickly and just posted it. So it was already prepared. 1. The respondent also tendered a letter dated 17 July 2018 from Professor Ernest Somerville, Neurologist and Director, Comprehensive Epilepsy Service, Prince of Wales Hospital which stated the following: This letter is to confirm that Ms Bouskila is fit for office duties and for travelling/commuting to and from work. This letter also is to confirm that the appointment for the visit that occurred yesterday was made in April but was not carried out sooner because of our waiting list. 1. In relation to Professor Somerville's letter dated 17 July 2018, Ms Bouskila agreed with the proposition that she had informed her specialist that the location of work required by the respondent was Blacktown. 2. There was no re-examination. Mr Geoffrey Adelstein 1. Mr Adelstein was not required for cross examination. Mr Adelstein deposed he was the solicitor for the applicant in the Notice of Motion proceedings. 2. During the course of the Directions hearing before Commissioner Murphy on 5 February 2018, Mr Adelstein contended it was apparent that the respondent held the view that the applicant was medically unfit and accordingly should be retired on the basis. Mr Adelstein stated he considered there was no medical evidence to support the applicant's medical retirement and accordingly, sought her medical records. 3. On 6 February 2018, Ms Singer for the respondent provided the following advice Mr Adelstein by email: I thought I'd been clear; however, upon rereading the paragraphs, I note that I have not, in that you assumed that the retirement was result of the GMO report. The reason for Ms Bouskila's medical termination was not the GMO report. It was the medical certificate supplied by the applicant to the respondent, attached above, which advised that she was unable to commute to the new location due (to) the medical condition of epilepsy in relation to the distance she would need to travel. 1. In opposing the motion, Mr Adelstein deposed the filing of the applicant's evidence must be delayed until her medical specialist's report is obtained: On 6 April 2018, I wrote to the Registrar of the Industrial Relations Commission of NSW (IRC) seeking to address the applicant's breach of the previous directions and advise that the applicant had been involved recently in a motor vehicle accident and suffered personal injury. This caused a difficulty in obtaining instructions. I also advised Mr Sullivan of this situation. A true copy of my email is annexed and marked "B". I then obtained instructions from my client concerning her attendance on her Epilepsy Specialist, to be advised that the first available appointment was not until mid-July 2018. On 9 April 2018, I sent a letter to Mr Sullivan to advise of the situation, a true copy of which is annexed and marked "C1". On the 16 April 2018, I received advice from Registrar Morgan of the proposed new directions, including a hearing date. The date had been set down during a period when I was to be overseas, that being a matter I had raised with Commissioner Murphy at the first Directions hearing. On 2 May 2018, I caused to be sent to the IRC and to Mr Sullivan an email, a true copy of which is annexed and marked "D1". On 3 May 2018, I received from Registrar Morgan an email, a true copy of which is annexed and marked "D2". On 8 May 2018, apparently one day after Mr Sullivan returned from leave, the current application was filed. 1. Mr Adelstein contended there had been no failure by the applicant to prosecute her claim. He was required to obtain instructions from the applicant and seek the required medical report: As I have endeavoured to make clear in the correspondence, with the present position advocated by the respondent, is necessary to procure report from the applicant's specialist to assess whether the applicant is able to travel by public or private transport to the proposed place of employment in Blacktown and if so, what, if any, restrictions be placed on travel, work hours or work duties. Until that information is to hand, I am unable to properly advise the applicant and any evidence that the applicant is required to put on by way of personal statement will need to consider the views expressed by the specialist. Submissions Applicant on the Motion (the respondent) 1. The applicant made oral and written submissions which are summarised below. 2. In moving the motion, the respondent sought to rely upon Rule 12.7 of the Uniform Civil Procedure Rules and s 61(3) of the Civil Procedure Act. 3. The respondent also sought to rely upon the chronology provided to the Commission during the course of the Directions hearing on 4 June 2018 and the affidavit of Mr Sullivan in support of the motion filed on 8 May 2018. That material is largely set out above. 4. The respondent took particular issue with Mr Adelstein's affidavit evidence where he said: … with the present position advocated by the respondent, it is necessary to procure a report from the applicant's specialist to assess whether the applicant is able to travel by public or private transport to the proposed place of employment in Blacktown and if so, what, if any, restrictions are to the (sic) placed on travel, work hours or work duties. 1. The respondent submitted Mr Adelstein confirmed to the Commission during the course of the Directions hearing on 4 June 2018 that the applicant's failure to comply with the most recent order of the Commission, that order being on the application of the applicant and by consent, that the applicant's evidence be filed by 20 April 2018 was due to her inability to obtain that particular medical report. 2. Moreover, Mr Adelstein's affidavit evidence was that the applicant advised the respondent's solicitors on 9 April 2018 that the earliest the applicant was able to see her specialist was 16 July 2018. Ms Bouskila's evidence was that her first discussion with Mr Adelstein about obtaining a medical report from a specialist occurred on 9 April 2018. However, Mr Adelstein wrote the Commission on 6 April 2018 seeking a variation to the timetable without reference to any possible delay in obtaining the medical report. The Commission subsequently varied the timetable on 12 April 2018 by making an order that the applicant file her evidence by 20 April 2018. In that regard, the respondent contended: It's a question of why there would be that communication with the Commission, indicating that a timetable whereby evidence would be filed by 20 April would be made, in circumstances where apparently there was no instruction available about when the medical evidence might be required. Now, Mr Adelstein makes it clear in his affidavit that, in para 7, the applicant was aware, from at the latest 6 February 2018, that her ability to travel to Blacktown was an issue relevant to the termination of her employment. And there shouldn't have been any doubt about that fact because prior to the conciliation on 5 February the employer's reply had been filed and that indicated in para 41 that on 25 September 2017 the respondent - I think that should refer to the applicant - advised that she was unable to commute to the new location, that being at Blacktown, due to her medical condition of epilepsy and provided a medical certificate advising of same. So, this had not been raised as an issue previously, although she advised another doctor, Dr Abeya during a medical certificate assessment that she had been diagnosed at 15, placed on medication and had not had a seizure since that time. 1. The respondent contended it was clear from Mr Adelstein's affidavit that the applicant was aware, from at the latest 6 February 2018, that her ability to travel to Blacktown was an issue relevant to the termination of her employment. There should be no doubt about that fact because the Employer's Reply was filed prior to the conciliation on 5 February 2018. At paragraphs [41] to [44] of the Employer's Reply, the respondent submitted: 41. On 25 September 2017, the applicant advised that she was unable to commute to the new location due to her medical condition of epilepsy and provided a medical certificate advising of the same. This had not been raised as an issue previously, although she advised Dr Abeya during the medical certificate assessment that she had been diagnosed at 15, placed on medication and had not had a seizure since that time. 42. Consequently, as there were no other roles available, the applicant did not appear to be applying on her own for employment, she was sent a Regulation 14(1) letter dated 15 November 2017, pursuant to the Government Sector Employment (General) Rules 2014. 43. The applicant's response merely questioned the right of the respondent to medically retire her, as she had no diagnosis and she was still young. (Tab O) 44. A letter confirming that the Commissioner approve the applicant's medical retirement by letter dated 15 December 2017. (Tab P) Accordingly, the respondent submitted it was incorrect for Mr Adelstein to refer to the respondent's reliance on the applicant's inability to travel as its "present position", with the implication that this fact has come to light in close proximity to the filing of Mr Adelstein's affidavit. 1. The applicant's solicitor first sought the respondent's consent to an extension to the original timetable set by Commissioner Murphy, requiring the applicant's evidence to be filed by 26 February 2018, on 22 February on the basis of the need to obtain a report from the applicant's GP, rather than a specialist to clarify her epilepsy: We note that as your reasoning for determining Ms Bouskila's medically retired (sic) was a result of her medical certificate given by her GP, a matter which on the face is significantly different to the original assertions, we will need to seek from Ms Bouskila's GP further report to clarify her Epilepsy. As a result, this will delay our compliance with the Directions. We therefore seek your Consent to have our written statements filed and served by 19 March 2018. 1. In response, the solicitors for the respondent disagreed with the proposition that the applicant's reliance on the medical certificate justified extension of time for the filing of evidence: Our client does not agree that its reliance on the medical certificate to which you have referred can justify an extension of time for the filing of your client's material. The certificate was referred to at paragraph 41 of the Employer's Written Case attached to the Employer's Reply and in an email from Ms Singer to you on 6 February 2018. Your client has had ample opportunity to obtain any relevant medical evidence and otherwise to prepare its material in support of her application. If your client requires a short extension to file her material, the respondent will consent to a variation to the timetable, but on that basis only. Our client will agree to the timetable being extended by 14 days at each step. 1. The respondent submitted there was no reference at all in correspondence between the applicant's solicitors, the Commission and the respondent in or around 22 February 2018 that the applicant now required a medical report from a specialist. Rather, the focus had been on obtaining a report from a GP. 2. The Commission subsequently made fresh orders varying the timetable and requiring the applicant to file her evidence by 26 March 2018. 3. Nevertheless, consent was given to a short extension for the filing of material with an agreement that the timetable be extended by 14 days at each step. 4. The respondent further submitted it was not until 9 April 2018 that a decision was made or at least communicated to the applicant, that a specialist's report was required. In that regard, the respondent contended that consideration ought to have been given in February 2018 in or around the conciliation hearing before Commissioner Murphy as to what evidence would be required. It is plainly insufficient for the applicant's solicitors to advise the respondent as late as 9 April 2018 that the applicant now requires a specialist medical report. 5. The respondent also noted that there was no evidence before the Commission concerning the applicant's motor vehicle accident on 9 March 2018: It's also the case that the orders required evidence to be filed by 26 March. There's been no evidence given as to what efforts were made to obtain evidence preceding the applicant's car accident on 9 March. Even if there was a need to talk to the GP to find out what type of evidence might be needed or whether that should be from a specialist, it is again submitted that steps ought to have been taken before 9 March for that to occur and, on any analysis, to obtain medical evidence or to obtain an appointment with a practitioner, obtain a report and file evidence by 26 March was cutting the matter very fine. Now, the evidence is that through the affidavit in support that through a telephone call initiated by the respondent's solicitor on 16 March the applicant's solicitor indicated that further evidence would be required - sorry, further time would be required to file evidence due to the applicant being involved in a car accident. And in cross-examination the applicant confirmed that she had informed her solicitor soon after the car accident of the fact that it had occurred. 1. There is absolutely no evidence before the Commission of any initiative taken by the applicant or her solicitors prior to the 9 March 2018 motor vehicle accident to obtain medical evidence of any sort: It's clear that the applicant's solicitor knew, by at least 16 March, that the applicant had been involved in a car accident and yet it appears there's no evidence of the applicant's solicitor taking any steps to obtain medical evidence which might ordinarily occur in matters where solicitors brief doctors to answer a brief of questions and to provide a medical report and in fact the medical report that's now been provided, which is exhibit 2, it's very sparse. If that's the extent of it, it's in very sparse terms. "This letter is to confirm that Ms Bouskila was fit for office duties and for travel and commuting to and from work." The applicant's given evidence that she indicated her work was at Blacktown but there's no depth to the document at all. 1. The respondent also submitted that in correspondence to the Registrar dated 6 April 2018, the applicant's solicitors had failed to refer to the requirement for a specialist's medical report when seeking the revised timetable and the vacation of the hearing then scheduled for 12, 13 and 14 June 2018 before Commissioner Newall. Moreover, the correspondence stated the applicant had been involved in a motor vehicle accident and she had suffered personal injury which had caused complications "including instructing us in regards to evidence". The date of the applicant's motor vehicle accident was not mentioned. 2. On 9 April 2018, the applicant advised the respondent that a specialist's medical report rather than the report from her GP was now required. On 12 April 2018, the Registrar subsequently made further orders requiring the applicant to file her evidence by 20 April 2018. The hearing dates of 12, 13 and 14 June 2018 were vacated and the matter was now listed for hearing on 14, 15 and 16 August 2018. 3. The respondent submitted that the applicant had claimed that her post motor vehicle accident medication had prevented her from providing instructions to solicitors for a period of 6 to 8 weeks. Notwithstanding that claim, the applicant was able to make Facebook postings including YouTube videos. In that regard, the respondent observed: Leaving aside what can only be considered to be questionable evidence about whether a gym session was attended on 7 April, the evidence is clear that the commentary in … The YouTube video, about the workout, occurred on 7 April, without the effects of the Endone causing difficulties. And the evidence is that the telephone call that occurred to the specialist's office took some 10 minutes and it's our submission, on any analysis, having regard to the activities that the applicant was engaging in during that period, the phone call to a specialist to obtain an appointment is something that could have occurred. And yet, it appears that irrespective of the applicant's condition, because it hadn't even been communicated to her until 9 April that that's the evidence that would be required, that nothing been done in that regard. 1. The respondent submitted there was an onus on the applicant and her solicitors to comply with the "Commission's practice note, around compliance with filing timetables and applications being made to vary timetables prior to the breach occurring": Emphasis is given the resources of the Commission and the impact which delay has upon the Commission and parties who seek to come before the Commission. 1. The respondent sought to rely on the decision in Kabir v Department of Family and Community Services [2016] NSWIRComm 1009 where at [13] Commissioner Newall observed: 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 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 despatch are not penalised by parties who do not. 1. The Commissioner dismissed the application for lack of due despatch. The Commissioner also stated the applicant had failed to furnish any medical certificate or report addressing his medical condition to cover a lengthy period of inaction on his part to prosecute the application. 2. The decision in Kabir was cited with approval in Burns v Nepean Blue Mountains Local Health District [2018] NSWIRComm 1020 where at [6], Commissioner Murphy determined the applicant's reliance on "some health issues relating to his parents" for his failure to comply with directions on two occasions were insufficient to excuse his non-compliance with the Commission's Directions. In Burns, the applicant had failed to comply with two sets of Directions to file his evidence. 3. The decision of Commissioner Newall in Kabir was also cited with approval by Chief Commissioner Kite in Mark Woodman v South Eastern Sydney Area Health Service [2018] NSWIRComm 1025 where the application was dismissed for want of due despatch due to the repeated non-compliance with the Commission's Directions. 4. In Woodman, the Chief Commissioner made reference to the announcement published on the Commission's website on 1 December 2017 reminding the parties of the onus on them to comply with directions or seek variations as soon as non-compliance appeared likely. The Chief Commissioner further observed at [7], [23] and [27] - [32]: 7. 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. 23. 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. 27. 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. 28. The repeated failures by the applicant, albeit largely through the fault of his solicitors, cannot be ignored. 29. 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. 30. 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 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 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 despatch 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) 31. 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. 32. 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. 1. Given that the applicant had not worked with the respondent since September 2015, the respondent submitted prejudice had been caused to it and other litigants who seek to use the limited resources of the Commission. In this case, the applicant's delay in filing her evidence had caused inconvenience to the both the Commission and the respondent: It is also clear the in convenience caused to the respondent in needing to deal with constant variations of timetables and often, as shown in the evidence, attempts at rectification being caused by the respondent's solicitors rather than the applicant's. 1. The respondent submitted that with respect to the applicant's failure to file the evidence on 26 March and subsequently on 20 April 2018, there was no communication as required by Practice Note 17A until the applicant's solicitors responded to the email sent to them by the Commission on 1 May 2018: The Registrar requests an update on the above matter as we have not received any filing as of yet. 1. The applicant's solicitors provide the following response on 2 May 2018: We refer to this matter and to the directions made on 16 April 2018 in chambers by Registrar Morgan. We kindly note that the writer is unavailable as he will be overseas from 22 June 2018 until 4 August 2018. This has previously been advised to the Commissioner at the time of the conciliation conference … The safer bet, particularly (in) circumstances where I have previously advised that a medical report is being obtained from Ms Bouskila's specialist which will not be available until the start of August, would be for hearing dates to be made available towards the end of August heading to September. In this regard, at present the writer is available in the week of 27 August and the weeks of 3 and 10 September 2018 if this period of time is available 1. The respondent submitted the email response to the Registrar dated 2 May 2018 was the first occasion the Commission had been advised that a specialist's report was required. However, apart from the requirement of a specialist medical report, the applicant's solicitors, no explanation is given to the Commission in response to its enquiry as to the filing of evidence. The Registrar subsequently provided the following response to the applicant's solicitors on 3 May 2018: Unfortunately, this matter has been listed for hearing before the Industrial Relations Commission from 14 - 16 August 2018. Any variation to the current listing dates will require a motion to vacate the hearing dates including applicable reasons. I would suggest familiarising yourself with the practice notes for the Industrial Relations Commission. 1. Despite the applicant seeking specialist medical opinion concerning her ability to travel to Blacktown, the relief sought in her Form 7A Unfair Dismissal Application is not reinstatement to her former position which is now located at Blacktown but re-employment to: Any of the clerk 3/4 positions in the City area ie Sutherland, Long Bay, city, city cos, Silverwater, Burwood etc. 1. In terms of the applicant's prospects of success in her substantive unfair dismissal application, the respondent submitted: The catalyst for termination on my instructions was the applicant's - through the medical certificate from her GP - indicating that her ability to travel to Blacktown was affected and as indicated in the reply document, there weren't alternative positions available for the applicant at other locations. We say that the fact that the applicant is not in these proceedings, at least in terms of the application on the evidence before the Commission, seeking reinstatement to her employment at Blacktown, the prospects of success at hearing are affected and it casts down (sic) on even the relevance of the medical evidence that has delayed these proceedings now for some four months. So I submit. that the balance of the relative prejudice lies with that that caused to the respondent, to the Commission and global litigants and the Commission ought to exercise its discretion to dismiss these proceedings. Respondent on the motion (the applicant) 1. The applicant's written and oral submissions traversed the background to the applicant making her unfair dismissal claim, the initial proceedings before Commissioner Murphy on 5 February 2018, the subsequent acknowledgement by respondent on 6 February 2018 that the applicant had been terminated on the basis of a medical certificate concerning her condition of epilepsy together with the various written requests made by her solicitors for an extension of time for service of her evidence. 2. The applicant referred to the decision of Simpson J in Raymond Hoser v Christopher Hartcher [1999] NSWSC 527 in support of the proposition that Rule 12.7 is discretionary and is to be applied on a case-by-case basis without adherence to any strict formulae with the overriding concern being whether or not justice requires that the proceedings be dismissed. At [19], her Honour set out a non-exhaustive list of factors to be considered in exercising that discretion: 19 It seems to me that the following principles are relevant to the exercise of the discretion to strike out for want of prosecution. The list is not intended to be exhaustive: (1.) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 F (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited, unreported, 19 November 1995, per Sperling J; (2.) the discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: Stollznow v Calvert at 751 D; (3.) any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J; (4.) personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73. (5.) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant's case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff's earlier inactivity: Calvert v Stollznow, 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, para 13, 022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestley JA; (6.) delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor: Calvert v Stollznow, per Cross J; Burke v TCN. But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings, and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant's capacity properly to defend the plaintiff's claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example, at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time; (7) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise; (8) prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay; (9) what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay: McBride v ABC, unreported, 6 November 1998, per Levine J; (10) the plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out: Razvan, per Kirby P; (11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice. 1. The applicant submitted the Commission should not exercise its discretion under Rule 12.7. In support of that proposition, the applicant urged the Commission to consider the following reasons when giving consideration to exercise of Rule 12.7 and when balancing their respective prejudices in so far as both the applicant and the respondent are concerned: 1. The delays in filing evidence as required by the relevant directions of the Commission can be readily explained: 1. the basis for the respondent's opposition to the substantive proceedings was initially unclear and was only subsequently clarified thereafter; 2. the applicant suffered personal injuries in a motor vehicle accident and was unable to give instructions; 3. the initial report from the applicant's GP was insufficient to provide necessary evidence; and 4. the applicant is unable to see a specialist until mid-July 2018. 1. A number of the above reasons for the delay have been outside the applicant's personal control; 2. The applicant has explained these reasons to the respondent and the Commission; 3. The respondent has consented to the extensions of the timetables; 4. The respondent did not foreshadow in any way that it would seek to have the matter dismissed for the applicant's failure to prosecute her case with due despatch; and 5. The failure to provide evidence to date has not jeopardised the prospect of a fair hearing. The respondent has not provided any evidence of how it has, or will, suffer prejudice. It has merely repeated categories of prejudice set out by Chief Commissioner Kite SC as he express them in Woodman v South Eastern Sydney Area Health Service. 1. The orders of Commissioner Murphy dated 5 February 2018 requiring the applicant to file her evidence on or before 26 February 2018 were made prior to the respondent advising Mr Adelstein on 6 February 2018 that the applicant had been terminated on the basis of a medical certificate concerning her epilepsy which prevented her from attending the alternate employment offered at Blacktown. 2. Mr Adelstein wrote to the respondent on 22 February 2018 requesting an extension for the service of the applicant's evidence to 19 March 2018. On 27 February 2018, the respondent's solicitors wrote to Mr Adelstein consenting to a 14 day extension for the applicant to file her evidence. The Commission subsequently made orders extending the date for service. 3. On 16 March 2018, the respondent's solicitor had a conversation with Mr Adelstein concerning applicant's evidence where Mr Adelstein foreshadowed that a further extension could be required because the applicant was indisposed following a motor vehicle accident. 4. The respondent's solicitor wrote to Mr Adelstein by email on 3 April 2018 enquiring as to whether the applicant would be continuing her application and proposed a new timetable. On 6 April 2018, Mr Adelstein wrote to the Registrar explaining the delay was caused by the applicant being in a motor vehicle accident and unable to provide instructions to her solicitors. 5. The applicant advised Mr Adelstein during the period 6 to 9 April 2018 that the first available appointment with the medical specialist was mid-July 2018. Mr Adelstein subsequently advised the respondent's solicitor of this development by letter dated 9 April 2018. The Commission issued fresh orders on 12 April 2018 requiring the applicant to file her evidence by 20 April 2018. 6. The applicant submitted that on 1 May 2018, the Registry wrote to Mr Adelstein by email regarding the applicant's evidence. On 2 May 2018, email correspondence on behalf of Mr Adelstein was sent to the Registrar concerning his unavailability between 22 June and 4 August 2018 together with the fact that given the specialist medical report may not be available until early August, hearing dates should be scheduled "towards the end of August heading to September". 7. The applicant contended in her Form 7A application that she had been a victim of bullying in the workplace and "only wanted a resolution to the bullying (through) a transfer to a more suitable work location which all the medical professionals agreed was the best form of resolution for all involved". 8. The applicant had also brought a workers compensation claim against respondent for psychiatric injury. The Independent Medical Review Panel made a recommendation on 27 January 2017 that the applicant was "unfit to return to her substantive position at the current workplace. However, it considered she should be medically fit for similar work at another location …" 9. Clearly, the applicant was suffering anxiety from the effects of bullying. She was not suffering a condition as a result of her epilepsy. It is also clear that the respondent's reliance on the applicant's epilepsy condition to support medical retirement, the basis for her dismissal, "was not abundantly clear" when Commissioner Murphy made the initial orders on 5 February 2018. Accordingly, a cogent and compelling explanation exists as to why Commissioner Murphy's initial orders were not complied with: … there is a cogent and compelling explanation as to why those orders were initially not - were not complied with on the basis that the shape of the claim itself was still being determined and how the matter would proceed what evidence would be required was still very much being resolved. 1. With respect to the second orders requiring the applicant to file her evidence by 26 March 2018, the applicant suffered personal injuries in a motor vehicle accident and was unable to give instructions to her solicitors. In subsequent correspondence to the Registrar on 6 April 2018, Mr Adelstein informed the Registrar the motor vehicle accident "had cause complications including instructing us in regards to her evidence" and the respondent's solicitors had been advised of "the difficulties" resulting in an agreement for a new timetable for filing of evidence by consent. 2. The applicant sought to distinguish her capacity to upload Facebook/Instagram posts from being able provide her solicitor with clear instructions and/or evidence relating to her case that spans some three years. Moreover, there doesn't appear to be any suggestion that the uploaded photographs were taken during the time that the applicant was incapacitated due to her motor vehicle accident. In that regard, the applicant was steadfast when giving her evidence in cross-examination that none of the photographs had been taken during the period that she was incapacitated. 3. Similarly, there is no evidence the YouTube videos were made during her period of incapacity, other than the training video made on 7 April 2018, some 4 to 5 weeks after the motor vehicle accident. 4. The evidence before the Commission is that the applicant was involved in a serious car accident and extent of her injuries together with her Endone pain medication prevented her from being able to provide instructions. The applicant subsequently contacted her medical specialist on or around 9 April 2018 when she was capable of doing so. 5. The applicant contended that with respect to the three sets of orders made requiring her to file: ... all 3 sets of orders have been accompanied by reasons that the Commission would consider compelling, so that it would not exercises powers to dismiss the proceedings. 1. Moreover, the applicant contended that a number of the delays in filing were simply out of her personal control and cannot be used against her in determining whether the application should be struck out: Firstly … the applicant was unclear about the reasons for her dismissal, having filed on the basis that it was not for bullying and psychiatric injuries; secondly, that she had been involved in a car accident; and thirdly, that she was unable to see a specialist until 16 July. 1. The chronology of correspondence shows these issues have been raised and addressed with the respondent's solicitors and the Commission. In that regard, the applicant concedes that on some occasions, the communication was made after the "expiration date for orders". However, the applicant provided valid explanations which should be considered by the Commission as a further factor in favour of the applicant's case that her application should not be struck out. Moreover, the respondent consented to the extension of the relevant timetables. 2. The applicant also submitted that at no time did the respondent foreshadow that it would move to have the matter dismissed for failure to prosecute following the applicant's non-compliance with the third set of orders requiring her to file her evidence by 20 April 2018. 3. The applicant submitted the fact that no warnings had been given along the lines referred to by Chief Commissioner Kite in Woodman at [26] was another factor in the applicant's favour: … 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. 1. The applicant submitted there is no evidence before the Commission to support the proposition that the respondent has suffered or is likely to suffer prejudice as a result of the applicant's non-compliance with the directions of the Commission. 2. There is no evidence to support the respondent's claim that the applicant's previous position has been left unfilled for three years. Further, the respondent has acknowledged the medical evidence suggests that the applicant is unfit to return to work in her substantive position and has provided her with a list of vacancies at locations. 3. Moreover, in Woodman, Commissioner Newall warned the parties at the Directions hearing on 31 January 2018 that "further non-compliance by either party would not be accepted". However, in this matter, there's been an absence of any warning or threat to strike out the proceedings. The delay has been beyond the scope of the applicant's control. 4. The applicant also considered that her case can be distinguished from the circumstances in Kabir where the applicant not only failed to prosecute his case in any way at all but also "at no time appeared before the Commission" for Directions when the matter was set down to determine whether it should be struck out. 5. Similarly, the facts in Burns are clearly distinguishable from the circumstances and facts in the applicant's case. In Burns, the applicant sought to rely on the fact that there had been some health issues concerning's his parents.. He had failed to comply with the Commission's Directions on two occasions and at no time did he seek a variation or explain why such a variation was required. In this matter, the Commission and the respondent have been informed of the reasons for the applicant's delay. 6. The applicant referred to the decision of the High Court in Rozenblit v Vainer [2018] HCA 23; (2018) 92 ALJR 600 to support the proposition that the applicant's conduct in this matter is not so serious as to warrant striking out for want of despatch. Such authority should not be exercised unless it is the only fair way of protecting the interests of the party seeking such an order. Reply 1. In reply, the respondent confirmed that it had been subjected to additional legal costs as a result of the applicant's failure to comply with Directions. 2. The respondent submitted that in the circumstances of this particular matter, there has been no suggestion concerning the unreasonable failure of a party to agree to a settlement. Against the backdrop, s 181 of the Act concerning the Commission's power to award costs cannot rectify the financial prejudice that has occurred. 3. The applicant submits that she stopped taking her prescribed medication in April 2018. However, that submission is not evidence. In cross-examination, the applicant stated that she had remained on the Endone medication, twice a day for 6 to 8 weeks following her discharge from hospital on 10 March 2018. 4. Critically, the evidence in this matter is that during this 6 to 8 week period, the applicant communicated with her solicitor and her GP. On 9 April 2018, the applicant was still taking Endone when she contacted her medical specialist seeking an appointment. In that regard, the respondent contended that there was no reason whatsoever to prevent the applicant contacting her medical specialist prior to 9 April 2018. 5. On 18 September 2017, the respondent wrote to the applicant concerning her return to work within the context of her "fitness to continue assessment and the independent review panel decision". The applicant was advised that her substantive position had been relocated to Blacktown. She was also advised that a new director together with a new manager and team leader had been appointed. Accordingly, the staff the applicant had previously complained about concerning alleged bullying were no longer working in her team. The correspondence also warned the applicant: if you fail to return on 3 October 2017, CSNSW, Department of Justice will proceed with your termination. 1. The applicant subsequently provided a medical certificate from her GP, Dr Chuah stating she suffered from epilepsy which is triggered by lack of sleep and long travel times: Because of long travel times each way to Blacktown and stress, can she please be transferred to another location such as the Sydney, Malabar, Sutherland, Hurstville, which doesn't require a two-hour travelling time each way. In that regard, the respondent submitted it became clear that the applicant was no longer seeking reinstatement to a position at Blacktown. 1. The respondent submitted that the applicant has sought to rely on the fact that "there was a misunderstanding on the applicant is part as to what brought about the termination". However, the initial conciliation on directions hearing occurred on 5 February 2018 and the reasons for the medical termination of the applicant were clarified on 6 February 2018 in an email to the applicant's solicitors stating: The reason for Ms Bouskila"s medical termination was not the GMO report. It was the medical certificate supplied by the applicant to the respondent, attached above, which advised that she was unable to commute to the new location due to her medical condition of epilepsy in relation to the distance she would need to travel. 1. The respondent contended that between 6 February and 9 March 2018 when the applicant was involved in a motor vehicle accident, it seems abundantly clear that no action was taken by the applicant or her solicitors to seek the specialist's medical report to defend her medical termination. 2. The request for a variation to the timetable so as to allow the applicant to file her evidence by 20 April 2018 was put to the Commission by the applicant's solicitors as a suitable date to facilitate her compliance. The Commission's Practice Notes clearly advise the parties what is required of them. It is not a role for the respondent to draw the relevant practice note to the attention of the solicitors representing a party and the various decisions "that emphasise the need to comply with the practice note and with Directions made by the Commission". Consideration 1. In determining this Notice of Motion application, I am required to take into consideration the overall interests of justice as between the parties and the intention of the Civil Procedure Act, the Industrial Relations Act, relevant rules and established case management procedures. 2. I am also particularly mindful of the observations of the Court of Appeal in Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 at [55]: For a plaintiff who enlists the aid of the judicial arm of the State by invoking a particular legal process persistently to fail to comply with the conditions laid down for a favourable exercise of the judicial power may be said to abuse the process invoked. 1. I am equally mindful there is no medical evidence to support the contentions of the applicant and her solicitors that she was unfit to provide instructions following her motor vehicle accident in circumstances where she knew the reasons for her medical termination and was also able to upload social media posts during her period of "convalescence". There is also no medical evidence concerning the applicant's motor vehicle injuries or prescribed medication. Practice Note 17A 1. Case management within the Commission relies in part on compliance with Practice Notes, the purpose of which is to provide practitioners and litigants with detailed procedural guidance on how the Commission manages its cases. Practice Notes complement legislative and regulatory provisions to specifically set out the steps practitioners and litigants are expected to take to prepare their case for hearing. 2. Parties should not commence or take steps in proceedings without first considering the principles set out in the relevant Practice Note. 3. The Commission issued Practice Note 17A with effect from 29 April 2016. The Practice Note is designed to facilitate the just, quick and cost effective disposal of unfair dismissal proceedings before the Commission, consistent with the objectives set out under s 56 of the Civil Procedure Act. 4. Implicit within Practice Note 17A are the procedures to be followed in relation to the conduct and case management of applications pursuant to s 84 of the Act. A copy of the Practice Note accompanies the formal Directions for Arbitration timetable for the filing of evidence in circumstances where a party to an unfair dismissal application seeks to have the matter arbitrated by a member of the Commission. 5. The obligations of parties are clearly set out in the Practice Note. Accordingly, a party should not expect the Commission to provide a warning that a particular application may be dismissed for a parties' failure to prosecute proceedings with due despatch. 6. The Practice Note clearly states its purpose is to facilitate the just, quick and cost effective disposal of unfair dismissal proceedings before the Commission. Absent clear and compelling grounds, applications for adjournments will be declined. There is also an onus on practitioners and others who appear before the Commission "to do all they can to facilitate such an outcome": The purpose of Practice Note 17A is to facilitate the resolution of unfair dismissal matters before the Industrial Relations Commission of New South Wales in a just, quick and cost-effective manner and that practitioners and others who appear before the Commission do all they can to facilitate such an outcome. 1. In respect of this application, I am mindful that the major terms implicit in Practice Note 17A are not new and were clearly articulated in the earlier Practice Note 17 issued on 21 December 2005. 2. The Commission has observed in numerous cases that Practice Notes will be strictly applied. For example, in Anley and Department of Education and Training [2009] NSWIRComm 39 at [23], Justice Staff noted with respect to the then Practice Note 17: This Commission has observed in a number of recent decisions that Practice Direction 17 will be strictly applied: Zammit v KTS Logistics Pty Ltd [2006] NSWIRComm 36; Gu v Nature's Care Manufacture Pty Ltd [2006] NSWIRComm 39; Vadim Dedov and Apollo Life Sciences Limited [2006] NSWIRComm 159; Pritchard v Trident Global Pty Ltd [2006] NSWIRComm 83 and Craig Maguire and Plasdene Glass-Pak Pty Limited [2006] NSWIRComm 112. 1. Clause 11 of the Practice Note 17A provides that any Directions made must be complied with and any application to vary directions after the conciliation conference must be made in writing and contain full supporting grounds: 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 and 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. Clause 12 of Practice Note 17A deals with adjournments and provides that the day (or days) in which the application will be dealt with by arbitration is definite. Any application for an adjournment of the arbitration dates must be made in a timely way, be in writing and contain the full supporting grounds. Such applications will be considered and determined by the relevant Member. 2. The Practice Note also provides that it should be understood that adjournment applications will be granted only on clear and compelling grounds: 12. Adjournments (a) In accordance with the Commission's function to provide a forum for the resolution of unfair dismissal matters in a fair and prompt manner, as a general rule, an adjournment of the date that is allocated for conciliation will not be granted unless there are clear and compelling reasons for the adjournment to occur. Consent of the opposing parties does not guarantee an adjournment will be granted by the Commission, although it will be a factor taken into account in the determination of such application. (b) The day (or days) in which the application will be dealt with by arbitration is definite. Any application for an adjournment of an unfair dismissal matter fixed for arbitration must be made in a timely way, be in writing and contain full grounds. Applications will be considered and determined by the Member allocated the hearing of the unfair dismissal application unless the application is made prior to the date fixed for conciliation. In such case, the Member allocated the conciliation of the matter shall determine the application. It should be understood that adjournment applications will be granted only on clear and compelling grounds. (c) Other than the grant of consent applications, the Member of the Commission determining the grant or refusal of an application for adjournment should provide shortly stated reasons for the decision. (d) In the event that a party fails to attend at an arbitration hearing, the arbitration may, in appropriate circumstances, be heard and determined in the absence of that party. 1. The proper administration of justice seeks to ensure the legislative purpose implicit in s 84 of the Act and reflected in the Practice Note is strictly applied. 2. The industrial parties are required to be familiar with the various Practice Notes of the Commission. Whilst the Commission will, consistent with the terms of Practice Note 17A continue to give consideration to the special facts pressed to support a variation to the timetable for the filing of evidence or a request for adjournment of set hearing dates, the parties should not presume the Commission will give a green light to their application. 3. Shortly stated, flexibility to accommodate the various requests of parties cannot be assumed and those parties must understand that failure to comply with Practice Note 17A in a timely way run the risk that their application may be dismissed. 4. The workload and reduced size of the Commission has limited its flexibility to vary filing timetables and hearing dates without prejudicing other parties who comply with their obligations and seek hearing dates at the earliest opportunity. 5. In this matter, the respondent submitted the applicant had demonstrated a lack of due despatch in prosecuting her application. The respondent had consented twice to an extension and the applicant has had ample time, 16 weeks in total, to file and serve her evidence in circumstances where the date to file and serve her evidence has been continuously extended since the initial orders were made on 5 February 2018. 6. Clearly, the need for a specialist medical opinion should have been identified shortly after 6 February 2018 when the applicant's solicitors were informed of the reason for her medical termination. Legislative context 1. The legislative context of the Notice of Motion application revolves principally around the application of Rule 12.7 of the Uniform Civil Procedure Rules and Section 61(3) of the Civil Procedure Act: Rule 12.7 of the Uniform Civil Procedure Rules relevantly provides: (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. (2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit. Section 61(3) of the Civil Procedure Act states: 61 Directions as to practice and procedure generally … (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. 1. When considering whether to make an order pursuant to Rule 12.7, the Commission must seek "to act in accordance with the dictates of justice" criteria required by s 58(2) of the Civil Procedure Act: 58 Court to follow dictates of justice (2) For the purpose of determining what are the dictates of justice in a particular case, the court: must have regard to the provisions of sections 56 and 57, and may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 1. In addition to considering the above criteria, the Commission must also have regard to the overriding purpose of the Civil Procedure Act which is set out under s 56 of the Act, together with the objects of case management contained in s 57. 2. Section 56 of the Civil Procedure Act imposes a statutory obligation upon all parties to proceedings before a court to act at all times so as to facilitate the legislative imperative of "just, quick and cheap resolution of the real issues in the proceedings": 56 Overriding purpose (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. (3A) (Repealed) (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3): (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a relevant interest in civil proceedings if the person: (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings. Note. Examples of persons who may have a relevant interest are insurers and persons who fund litigation. 1. In this matter, the obligations imposed by s 56, including the obligation to comply with Directions, strictly binds both the applicant and the respondent. It must follow that a parties' non-compliance with Practice Note 17A is also a breach of that statutory obligation. 2. 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 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 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 despatch 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. Commissioner Newall's observations with respect to the Civil Procedure Act and the resources of the Commission are most certainly relevant to the determination of these proceedings. In determining this matter, I have also considered the principles identified by the Industrial Court of New South Wales relevant to the determination of an application under Rule 12.7 identified in Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1 at [108]-[113], 2. There is absolutely no evidence whatsoever before the Commission to support the proposition that the applicant's post motor vehicle accident injuries and medication prevented her from making a brief telephone call to her medical specialist seeking an appointment very shortly after 6 February 2018. 3. The Facebook and Instagram evidence before the Commission suggests the applicant was keenly following her participation in the Miss Universe contest during her "convalescence". In my view, those materials also support the proposition that it was open to her to contact her specialist during that period of time. Her medication does not seem to have blunted her enthusiasm to be a Miss Universe contestant. 4. The applicant's evidence was that her mother was assisting her during her "convalescence". Accordingly, in my opinion, it was open to the applicant to ask her mother to make the requisite call to her specialist on her behalf. Of course, the applicant's solicitors could have exercised some initiative and prompted her to make the required call or obtained authority to make the call on her behalf at any time. Case management 1. Case management and compliance with practice notes, directions and the like promote the efficient use of available administrative and judicial resources as well as the efficient disposal of matters. In that regard, s 57 sets out the objectives of case management under the Civil Procedure Act: 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 1. The legislative intention of s 57 is both clear and unequivocal and it specifically directs the litigating parties to the objectives of effective case management which requires all proceedings to be managed having regard to their efficient disposal and the efficient use of available judicial and administrative resources. 2. Critically, s 57(1)(d) of the Civil Procedure Act suggests the objects of case management extend to the needs and interests all parties of the relevant court and not simply those parties conducting the proceedings in question. Section 59 requires that any delay to be eliminated so far as possible. Section 60 also requires a court to consider proportionality of costs: In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. 1. The considerations raised under ss 56-60 of the Civil Procedure Act are critical to the determination of an application for the dismissal of proceedings for want of due despatch and non compliance with directions. In McMahon v John Fairfax Publications [2010] NSWCA 308 at [26], Allsop P referred to the case management provisions contained within ss 56- 60 as follows: The operation of the Civil Procedure Act, ss 56-60 has brought about important changes to the conduct of civil litigation in this State. To a significant degree those provisions enshrined many of the developments in case management and the approach to litigation over the previous 20-30 years in this country. They now have statutory form. They are, however, a clear statutory watershed. That statutory form comprises the over-riding purpose: s 56, the fulfilment of which binds the Court (s 56(2)), the parties (s 56(3)) and legal advisers (s 56(4)). That over-riding purpose is the 'just, quick and cheap resolution of the real issues in the proceedings'. 1. I repeat, the applicant and her solicitors were on notice from 6 February 2018 that a specialist medical report was required. There is no evidence before the Commission that the applicant's solicitors sought to contact her between 6 February and the date of her motor vehicle accident on 9 March 2018. Nor is there any evidence that the applicant sought to contact her solicitors during that intervening period. 2. The applicant's conduct when viewed in totality represents an arrant disregard for the importance of complying with Practice Note 17A and the Uniform Civil Procedure Rules. The announcement that accompanied the introduction Practice Note 17 on 21 December 2005 warned parties of the consequences of non-compliance including remedies under Part 6 of the Civil Procedure Act. A similar warning accompanied the introduction of Practice Note 17A. 3. It is clear on the applicant's evidence that she was able to upload various Facebook/Instagram posts which involved video dubbing and the like in or around March and April 2018 when taking Endone medication. For her part, the applicant claims those posts "took two seconds to do". An important fact here is that the applicant was able to think and act rationally in making those posts. It is also reasonably apparent that during this time, the applicant was heavily focused on the Miss Universe contest rather than her unfair dismissal claim. 4. Against that backdrop, I cannot find that the applicant's claim that her Endone medication prevented her from providing instructions to her solicitors (or making enquiries concerning what type of medical report may be required) credible. In that regard, nor do I find the evidence of Mr Adelstein that the applicant's motor vehicle accident and subsequent personal injuries "caused a difficulty in obtaining instructions" of assistance. There is no evidence setting out what steps were taken by letter, email, text or telephone to seek the applicant's instructions. 5. It was not until 6 April 2018 that the applicant's solicitors wrote to the Registrar and advised that they had incurred a difficulty in obtaining instructions because the applicant had been "involved recently" in a motor vehicle accident and had suffered personal injury. However, the Registrar was not informed that the motor vehicle accident actually occurred on 9 March 2018. 6. There was no evidence provided to the Registrar concerning the nature of those personal injuries. Nor was there any reference at all concerning delay in obtaining the required medical specialist report. Meanwhile, the applicant was able to engage in social media despite her personal injury and Endone medication. 7. It was not until 2 May 2018 that the Registrar was advised that a specialist medical report was required and would not be available "until the start of August". 8. Moreover, Mr Adelstein's correspondence to the Commission dated 2 May 2018 suggested a further delay in proposing revised hearing dates in late August and early September with no indication of when the applicant proposed to file her evidence which was due on 20 April 2018. 9. Neither the applicant nor her solicitors moved expeditiously to obtain the required medical report. 10. The respondent contends the applicant's delay in filing her evidence has caused it prejudice as it has been unable to finalise staffing arrangements following her dismissal. The respondent submitted the applicant's role with the respondent has been temporarily filled and her absence is impacting upon the its ability to deliver services. The respondent also submitted it continued to incur unnecessary costs in corresponding with Mr Adelstein and the Commission concerning the applicant's failure to comply with the Commission's orders. 11. I accept the submissions of the respondent that it has been subjected to additional legal costs as a result of the applicant's failure to comply with Directions. There was no direct evidence concerning quantum nor was there any direct evidence concerning the non-filling of the applicant's substantive position. 12. The applicant's solicitors were on notice from 6 February 2018 that the applicant required medical evidence to defend her medical retirement. Initially, the applicant's solicitors refer to her need to procure a report from her GP. 13. In cross-examination, the applicant confirmed that she first learned that a medical specialist's report was required, rather than a report from her GP on 9 April 2018. She subsequently sought an appointment with her long-standing treating medical specialist, Professor Somerville. It cannot be said that the applicant's solicitors moved expeditiously to obtain the required medical report after 6 February and prior to 9 April 2018. 14. The applicant and her solicitors were aware on 6 February 2018 that she was medically retired as a result of a medical certificate provided by her GP. In my opinion, the delay in seeking the specialist medical report coupled with her solicitors' failure to provide any cogent reasons or evidence explaining that delay when seeking an amendment to the directions for filing timetable on 22 February 2018 is inexcusable in the circumstances of this case. Clearly, the applicant's conduct of her case when viewed against the requirements of the Practice Note is also inexcusable. 15. It matters not, in my view, that the respondent consented to the revised timetable sought. The Practice Note clearly states the process to be adopted in such circumstances so as to ensure parties prosecute their matters with due despatch. 16. The applicant seeks to rely on the fact that her motor vehicle accident on 9 March 2018 somehow precluded her from contacting her medical specialist until 9 April 2018. In the interim, the evidence before the Commission shows conclusively in my view, that the applicant was able to upload seven or eight posts to Facebook and/or Instagram. In my view, the complexity of making such posts is less than the complexity an ordinary person would attribute to making a short telephone call to arrange a medical appointment. 17. Clearly, the requirement to seek amended directions has been caused by the applicant's own conduct and the tardiness of her solicitors in circumstances where there has been a failure to take the necessary steps to ensure the timely preparation of her evidentiary case. Failure to comply with directions resulted in the vacation of hearings listed for 12 to 14 June and subsequently, 15 to 16 August 2018. 18. Part 6 of the Civil Procedure Act commenced operation after the decision in Hoser. The Civil Procedure Act has made substantive and important changes to the law so that considerations of promptness and efficiency in the conduct of civil litigation are afforded a new and special importance which may sometimes provoke a sense of injustice in a party who has failed to proceed with despatch: Bi v Mourad [2010] NSWCA 17. 19. The Commission obviously has discretion when considering an application made pursuant to Rule 12.7. The relevant principles concerning that discretion were succinctly summarised by Simpson J in Hoser at [19], relied upon by the applicant (and respondent on the Motion} and as set out above. 20. In my view, however, while the principles enunciated by Simpson J in Hoser remain important, they must now be considered in the light of the mandatory requirements upon a court to have regard to the "overriding purpose" contained in s 56 of the Civil Procedure Act and the "dictates of justice" in the sense referred to in s 58. In that particular regard, Sackville AJA in Mourad at [41] observed "the statements to be derived from the judgement of Simpson J in Hoser v Hartcher" may now be "somewhat too generous". 21. It follows that the "dictates of justice" must be considered having regard to the position of all parties in the relevant litigation. A court may dismiss proceedings for want of due despatch even where the default or delay is not intentional or contemptuous. 22. I have also given consideration to the decision in Aon Risk Services Ltd v Australian National University (2005) 239 CLR 175, where the significance of delay, not only for particular proceedings, but for the Court system generally is recognised. 23. It is appropriate for the Commission to consider the prospects in the applicant's substantive case: Beavan (No 1) at [141]. The applicant's Form 7 A application filed on 11 January 2018 states she is not seeking reinstatement to her former position. Rather, the applicant seeking re-employment to another position or monetary compensation. In that regard, I note that on 18 September 2017, the applicant was advised that her substantive position had been relocated to Blacktown and the staff that she had previously complained of concerning bullying were no longer working in her team. 24. The Employer's Reply also contains an email from Ms Eva Muhana, Professional Standards Branch to Ms Cathryn Hellams, Director, HR concerning the applicant's secondment to Fire & Rescue NSW between 5 May 2014 and 2 February 2015 in the following terms: The Professional Standards Branch (PSB) has re-commenced misconduct process action in relations (sic) to allegation of fabrication of emails and unapproved second employment against Administration Officer Danielle Bouskila 1008####in July 2017. A day after the letters were served upon Ms Bouskila, she left Australia to go to Tel Aviv without informing her management at the Sentence Administration Branch or seeking approval for leave. PSB was informed that Strategic HR will pursue abandonment of employment. Could we please get an update once this takes place, to enable us to do with this matter appropriately. 1. The Employer's Reply contains a number of social media posts depicting the applicant travelling overseas between 4 August and 3 October 2017. The allegations raised by the respondent's Professional Standards Branch are very serious and in that regard, I also note that in unfair dismissal proceedings, an employer is entitled to raise the past conduct of an employee in defending such proceedings. This allegation, in my view, does not assist the applicant's case. 2. The applicant bears the "evidentiary onus" to demonstrate dismissal of her application will cause prejudice. There is no evidence of any specific detriment the applicant would suffer if an order were made against her, other than she would not be able to pursue her claim for "re-employment" or compensation. 3. The respondent has suffered some prejudice in having to foot additional legal costs in communicating with the applicant's solicitors and attending to the requirements of the Commission in vacating and setting hearing dates. On balance, I consider the prejudice to the applicant is outweighed by the prejudice to the respondent in the particular circumstances of this case. Determination 1. In my view, the respondent has demonstrated clear and compelling grounds for dismissal of the application for want of due despatch and failure to comply with the various Directions made in accordance with Practice Note 17A. 2. The evidence before the Commission paints a compelling picture of delay by the applicant and her solicitors. I have considered all the material before the Commission and I am completely satisfied, in the circumstances of this particular case, that there is a proper foundation for the exceptional order which is sought by the respondent under Rule 12.7. The application is dismissed pursuant to Rule 12.7 of the Civil Procedure Rules on the grounds that the applicant has not prosecuted her proceedings with due despatch and for breach of s 61(3) of the Civil Procedure Act. 3. I also consider the applicant's conduct constitutes an abuse of process pursuant to s 61 and more broadly, the provisions of ss 56 – 62 inclusive in circumstances where it is apparent in my view, having regard to all the material before the Commission, that the interests of the applicant at stake are disproportionate to the "efficient use of available judicial and administrative resources" of the Commission. 4. In my opinion the power contained in Rule 12.7 should be exercised in the present proceedings together with s 61(3) of the Civil Procedure Act for failure to comply with Directions and the obligations imposed on the parties under Practice Note 17A. Orders 1. I make the following orders: 1. Pursuant to Rule 12.7 Uniform Civil Procedure Rules 2005 and s 61(3) of the Civil Procedure Act 2005, proceedings in IRC Matter No 2018/10665 are dismissed. J D Stanton 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: 30 August 2019