Beavan v Industrial Relations Secretary (No 1)

[2016] NSWIC 1

Industrial Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1
Hearing dates:	14 August and 20 October 2015
Date of orders:	10 February 2016
Decision date:	10 February 2016
Before:	Walton J, President
Decision:	The appellant shall file and serve further submissions in writing as to the relief claimed (and any amended orders sought) with seven days of this judgment and any reply by the respondent shall be filed and served within a further seven days. Accordingly, I direct that the appellant file and serve any further submissions as to the relief claimed in the light of this judgment on or before 4pm 17 February 2016 and the respondent to file and serve any further submissions in that respect on or before 4pm 24 February 2016. Any further judgment as to orders to be made in the disposition of the appeal will be undertaken on the papers unless there is an application for a short oral hearing or the Court forms a view that it would be assisted by further oral submissions of the parties.
Catchwords:	APPEAL – dismissal – public sector appeal – application dismissed for want of prosecution – appeal under s 197B(1) – decisions on questions of law – Civil Procedures Act – Uniform Civil Procedure Rules – principles governing exercise discretion under r 12.7 – decision on questions of law – whether error in having regard to Aon Risk Services – whether error in having regard to interests of other litigants and court – whether failed to distinguish Aon Risk Services – whether failure to have regard to absence of scheduled hearing or hearing for first time – whether justice demanded dismissal after balancing the prejudice to each party – dictates of justice – whether failure to have regard to dismissal valid claim resulted in foreclosure of any further proceedings by appellant constituted error – actual and presumptive prejudice to respondent – errors of law – having regard to wrong question – failing to have regard to relevant considerations – directions made to settle orders
Legislation Cited:	Civil Procedure Act 2005 Court Procedures Rules 2006 (ACT) Government Sector Employment Act 2013 Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 Industrial Relations Commission Rules 2009 Uniform Civil Procedure Rules 2005
Cases Cited:	Al-Shennag v Woodcock [2013] NSWSC 696 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61 Bailey v Commissioner of Police [2014] NSWIRComm 53 Bi v Mourad [2010] NSWCA 17 Bridie v Messina [1965] NSWR 332; (1965) 66 SR(NSW) 446 Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 Chivers v Commissioner of Police [2014] NSWIRComm 7 Dank v Cronulla Sutherland District Rugby League Football Club Limited [2014] NSWCA 288 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 Fleet v State of New South Wales [2009] NSWSC 75 Gold & Copper Resources Pty Ltd v Minister for Resources & Energy & Anor [2014] NSWLEC 169 Hanshaw v Seven Network (Operations) Ltd 2014 [NSWSC] 623 Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 Hoser v Hartcher [1999] NSWSC 527 Industrial Relations Secretary v Fraser No 2 [2015] NSWIRComm 10 Land v Land [1949] P.405 Lee & Ors v Keddie & Ors [2009] NSWSC 777 McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308 Mhanna v Daoud [2014] NSWCA 376 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Nandini Fonseka v Epic Hotels Pty Limited Owens v Minoprio [1942] 1 K.B. 193; [1942] 1 All ER 30 Pacanowski v Simon Wakerman & Associates [2009] NSWCA 402 New South Wales v Mulcahy [2006] NSWCA 303 PSA v Secretary of Treasury [2014] 242 IR 318 Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40; 86 NSWLR 749 Queensland v J L Holdings [1997] HCA 1; (1997) 187 CLR 146 Sali v SPC Ltd (1993) 116 ALR 625 Sanders-Pattinson v Brown [2013] NSWCA 137 Snow v Snow [2015] NSWSC 90 State of New South Wales v Plaintiff A [2012] NSWCA 248 Stollznow v Calvert (1980) 2 NSWLR 749 Tawil v Public Trustee of NSW; Estate of Michael Pavlovich Biriukoff [2009] NSWSC 256; (2009) 2 ASTLR 317 Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank – A Division of Westpac Banking Corporation and Ors (No. 2) [2011] NSWSC 1122 Wakim v Tadros [2011] NSWSC 308 Worldwide Corporation Ltd v J P T Ltd [1998] EWCA Civ 1894
Category:	Principal judgment
Parties:	Joanne Kelly Beavan (Appellant) Family and Community Services (Housing NSW) (Respondent)
Representation:	Counsel: Mr A T Britt (Appellant) Ms K A Edwards (Respondent)   Solicitors: Marsdens Law Group (Appellant) Legal Services Branch, Department of Family & Community Services NSW (Respondent)
File Number(s):	2016/18022 (IRC 210 of 2015)
Decision under appeal	Court or tribunal: Industrial Relations Commission Date of Decision: 23 March 2015 Before: Newall C File Number(s): IRC 531 of 2014

Judgment

1. By correspondence dated 4 June 2014 under the letterhead ‘Family Community Services Housing NSW’ dated 4 June 2014, Mr Mike Allen (who was described in the correspondence as “Chief Executive”) terminated the employment of Ms Joanne Kelly Beavan (‘the appellant’).

2. By a notice of appeal filed on 2 July 2014, the appellant brought an appeal against the decision to dismiss her pursuant to s 98 of the Industrial Relations Act 1996 (‘the Act’) (‘the notice of appeal’). The appellant sought, inter alia, that the Commission “set aside the employer’s disciplinary action decision”, and order she be reinstated to her former position or be employed in another position. The notice of appeal nominated “Family Community Services - Housing NSW” as the “Department/Authority/Organisation” which had dismissed the appellant. (The notice of appeal filed in this matter nominated a similar entity as the respondent to the proceedings.)

3. Those proceedings were the subject of an unsuccessful conciliation before Commissioner Tabbaa and ultimately came before Commissioner Newall for determination pursuant to Div 4 of Pt 7 of Ch 2 of the Act.

4. During the course of the proceedings at first instance, the respondent, as described above, filed, on 18 March 2015, a notice of motion (‘the motion’). By that motion, the respondent sought that the matter be dismissed “for want of prosecution under Reg. 17.5 of the Industrial Relations Commission Rules 2009 (NSW)”.

5. The reliance upon r 17.5 of the Industrial Relations Commission Rules 2009 (‘IRC Rules 2009’) was misplaced. Rule 17.5 of the IRC Rules 2009 fell in Pt 17 of those rules and concerned civil penalty proceedings under s 357 of the Act which were plainly inapplicable in the case before the Commissioner. Reference was made during the course of the proceedings to r 17.4 which concerned dismissal for want of prosecution but again this rule concerned a failure by a prosecutor to appear or proceed with a matter in civil penalty proceedings. (Issues associated with the operation of rr 17.4 and 17.5 of the IRC Rules 2009 and r 12.7 of the Uniform Civil Procedure Rules 2005 (‘UCPR’) were discussed without resolution in Chivers v Commissioner of Police [2014] NSWIRComm 7 at [6] and [24].)

6. It may be observed, in this context, that the Industrial Relations Commission Rules 1996 (‘the IRC Rules 1996’) provided for the dismissal for want of prosecution where a party had not done any act required to be done or had not pursued the proceedings with due diligence: r 146, but those rules were repealed by the IRC Rules 2009: see r 1.3. (The IRC Rules 2009 represented a significant modification to the IRC Rules 1996 in the light of the Commission’s proceedings becoming substantially regulated by the UCPR.)

7. It was accepted in these proceedings, correctly in my view, that an application to dismiss for want of due dispatch in relation to proceedings brought under Pt 7 of Ch 2 of the Act was governed by r 12.7 of the UCPR: see s 4(1) and Sch 1 of the Civil Procedure Act 2005 (‘CP Act’) and r 1.5(1) and Sch 1 of the UCPR. However, the parties accepted that the irregularities in the motion (the reliance on the IRC Rules 2009 and the particular parts thereof, the reference to dismissal for want of prosecution rather than dismissal for want of due dispatch and the reference to “Reg.” presumably meaning a regulation) was not an issue in these proceedings and that the Commissioner’s decision should be reviewed in the light of the requirements of r 12.7 of the UCPR.

8. No reliance was placed per se by the parties in these proceedings (or below) upon s 61(3) of the CP Act or r 2.1 of the UCPR (or any power deriving therefrom) to seek or sustain the dismissal of the proceedings based upon non-compliance with directions given by the Commissioner.

9. Rule 12.7 appears in Div 3 of Pt 12 of the UCPR. That Division bears the heading “Dismissal of Proceedings etc for Lack of Progress”. The provisions of the rule are as follows:

[r 12.7] Dismissal of proceedings etc for want of due despatch12.7

(cf SCR Part 5, rule 12, Part 32A, rules 1 and 2; DCR Part 18, rules 3 and 9; LCR Part 17, rule 4)

(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.

(Under the CP Act, the expressions ‘plaintiff’ and ‘defendant’ should be understood in the context of proceedings at first instance and the present proceedings as, respectively, ‘applicant’ or ‘appellant’ and ‘respondent’: see s 3(1) of the CP Act.)

10. The motion was ultimately heard before Newall C on 23 March 2015. In an ex tempore decision, the Commissioner granted the motion and dismissed the application. The Commissioner’s decision makes no reference to r 12.7 of the UCPR. That omission is, on the parties’ cases in this matter, immaterial. In any event, the Commissioner posed for himself the question in his decision as to whether the proceedings had been prosecuted “without due dispatch” and ordered that the proceedings be dismissed “for want of dispatch” (which is a criteria for summary dismissal of proceedings broadly analogous with those found in r 12.7 of the UCPR).

11. By an application for leave to appeal and appeal filed 13 April 2015, the appellant appealed against the aforementioned ex tempore determination by the Commissioner. The proceedings were initially brought pursuant to s 188 of the Act but, by an amended appeal filed on 22 May 2015, the appellant sought leave to appeal and appeal pursuant to s 197B of the Act.

12. The amended appeal nominated the respondent as “Family and Community Services (Housing NSW)” and appearances were entered in those terms during the course of the proceedings arising therefrom. It is apparent from the material filed in the proceedings below that the description given to the respondent there and in these proceedings is a reference to an agency of the Department of Family and Community Services. Neither organisation would appear to be a legal entity (see PSA v Secretary of Treasury [2014] 242 IR 318 at [7]). Nor would it appear that the organisations, so described, were the employer of the appellant for the purposes of these proceedings. That would appear to be the Industrial Relations Secretary: see s 50 and Sch 1 of the Government Sector Employment Act 2013 and Industrial Relations Secretary v Fraser No 2 [2015] NSWIRComm 10 at [2]. I will make provision in the orders made in this judgment for the parties to make submissions having regard to these observations as to the proper name of the respondent to the proceedings.

13. This judgment concerns the determination of the amended appeal.

14. Some preliminary observations should also be made regarding the course of the proceedings and the matters requiring adjudication in this appeal. That analysis should commence with an extract from the judgment of this Court in Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40; 86 NSWLR 749 (‘Schoeman’). (The provisions of s 197B of the Act were given extensive consideration in that judgment. The parties agreed the judgment represented the applicable law and principle for the purposes of determining the appeal.)

15. In Schoeman, the Court discussed the nature and scope of an appeal under s 197B of the Act as follows (at [50] and [51]):

50 In determining the scope of an appeal under s 197B of the IR Act, the language of the statute must be the relevant starting point: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [89] ('Kostas'). It is apparent from the language used in s 197B(1) that an appeal to this Court is not at large, but is confined to an appeal against any decision on a question of law.

51 If the challenged decision does not constitute a decision on a question of law then the Court does not have jurisdiction to entertain an appeal in that respect as the determination of an appeal under s 98 of the IR Act by the Commission is final, subject to the limited right of appeal conferred by s 197B(1): see s 100C(4) of the IR Act (and also s 179 of the IR Act) and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 ('Azzopardi') at 155.

16. The original notice of appeal specified the questions raised by the appeal with little regard to whether those matters constituted decisions on questions of law.

17. Further, the early stages of the proceedings before the Court under the original notice of appeal saw attention being fixed upon whether leave to appeal was required in order to bring the appeal, whether grounds existed for the grant of leave and whether there was a capacity in the Court to receive further evidence on the appeal. The matter was fixed for preliminary hearing to consider those matters.

18. During the interlocutory hearing before the Court with respect to those preliminary matters (on 14 August 2015) questions were raised by the Court as to the relationship between those matters and an appeal under s 197B of the Act. It was in that context that the issues raised for preliminary consideration were either abandoned or eventually evaporated for two reasons.

19. First, the appellant abandoned (then and by latter submission) her application to call fresh evidence.

20. Secondly, the issue of leave later evaporated during the course of submissions of the parties. Consistently with the intimation given by the Court in Schoeman (at [131]), the respondent contended that leave to appeal was not required. Whilst the appellant was equivocal as to that legal question, her counsel, Mr A T Britt, accepted that the Court may adopt the approach in Schoeman (at [134]) whereby the Court may express the view that, if leave to appeal is required, it would, in the circumstances of the matter, grant it. That is the approach I adopt in this matter (although I maintain the earlier observations made in Schoeman). Whilst the principles to be applied to applications to dismiss proceedings for want of prosecution under r 146 of the IRC Rules 1996 have received attention in this Court, the application of r 12.7 of the UCPR has received less consideration, particularly in the context of proceedings before the Commission under Div 3 of Pt 7 of Ch 2 or, in a wider sense, Pt 6 of Ch 2. In that sense, the consideration of the relevant principles under r 12.7 of the UCPR in the present context is important.

THE AMENDED APPEAL

21. The amended appeal represented a recasting of the appeal to bring the matter into conformity with the dictates of s 197B of the Act.

22. In the amended appeal, the appellant stipulated the questions raised by the appeal as follows:

6.1 Whether the Commission should have dismissed the Appellant’s proceedings?

6.2 Whether the Commissioner erred on the implicit question of law that the decision in Aon Risk Services Australia Limited v Australian National University (2009) CLR 175 governed the issue of Commission’s jurisdiction to dismiss the Appellant’s claim?

6.3 Whether the Commissioner erred on the implicit question of law that the Commissioner needs to be satisfied that proceedings will be prosecuted with due dispatch.

23. The grounds of appeal were stated as follows:

In dismissing the Appellant’s appeal for want of due dispatch the Commissioner made the following errors in the proceedings on a question of law:

(a) erred in purporting to apply the principles set out in Aon Risk Management v Australian National University (2009) 258 ALR 14 in respect to the Court’s discretion;

(b) The Commission dismissed the proceedings without taking into account s163(1)(c) of the Act; and

(c) The Commission applied the wrong tests to dismiss proceedings pursuant to Rule 12.7 of the UCPR.

24. Two observations should be made about the terms of the amended appeal (hereafter referred to as ‘the appeal’).

25. First, during the course of the delivery of the ex tempore decision on 23 March 2015, the Commissioner was interrupted by the appellant’s solicitor who sought to have the matter adjourned. This application was refused by the Commissioner but no challenge was brought to that ruling.

26. Secondly, during the hearing of the appeal counsel for the appellant effectively abandoned the second ground of the appeal (ground (b)) by conceding that the appellant had acted in conformity with the requirements of s 163(1)(c). Further, as mentioned above, the appellant did not seek leave to call further evidence on the hearing of the appeal pursuant to s 191(2) of the Act.

27. There was no contest that the aspects of the Commissioner’s reasoning referred to in those grounds concerned decisions by the Commissioner on questions of law. The issues on the appeal were whether or not the decisions, so described, were erroneous upon the two remaining grounds of the appeal. I shall describe ground (a) as the first ground of appeal and ground (c) as the second.

BACKGROUND

28. The chronology of events leading to the hearing of the motion was as follows:

1. As previously noted, the notice of appeal was lodged on 2 July 2014. That lodgement was effected by the appellant’s solicitor, Mr Grant Butterfield of Marsdens Law Group and was within the time prescribed for the bringing of such appeals: see s 100B(2) of the Act.

2. In accordance with Practice Note No. 23 (‘the practice note’) (the relevant parts of which will be set out later in this judgment), the matter was listed for conciliation before Tabbaa C on 13 August 2014. The Industrial Registrar issued directions to file a written case for conciliation by 6 August 2014 (it would appear that only the respondent filed such material albeit one day late).

3. A conciliation was conducted before Tabbaa C on 13 August 2014, with the appellant being represented by her solicitor and the respondent by counsel, Ms K A Edwards.

4. The matter was listed for conciliation and directions again on 19 August 2014 but that listing was vacated. The matter then came back before Tabbaa C on 26 August 2014 where again the appellant was represented by Mr Butterfield and the respondent by the same counsel. On that occasion Tabbaa C indicated the matter had not settled and made consent orders in preparation for hearing based upon draft orders provided by the respondent. Counsel for the respondent indicated the orders were derived from “the practice note” but stretch[ed] out to allow for further negotiations and counsel’s availability.

5. The practice note provided that standard directions (known as ‘the usual directions’) issued, by virtue of the practice note, in the event of a failed conciliation, subject to any modification by a Member of the Commission. The orders made by the Commissioner on 26 August were plainly a modification of the usual orders required to be made in the case of a failed conciliation of proceedings brought under Pt 7 of Ch 2 of the Act so as to provide a greater time for parties to file material relevant to their cases including witness statements then permitted under the usual directions. The directions required the respondent to file and serve any material relevant to its case including written statements of evidence by 7 October 2014. The appellant was to file and serve written statements as to her intended evidence and other relevant documents by 11 November 2014. Material in reply was to be filed by 25 November 2014. The parties were to approach the Industrial Registry for hearing dates.

1. On 14 October 2014, the Deputy Industrial Registrar contacted Mr Nathan Cureton, solicitor for the respondent, as a consequence of the material required to be filed by the respondent not having been received by the Registry. The Deputy Industrial Registrar also sought available dates for a hearing, indicating she intended to list the matter in the new year for two days from February (the Deputy Industrial Registrar mentioned February 2014 but plainly intended February 2015). The Commission’s file shows that there were no jointly available dates for the representatives of the parties in February but the dates were available in March and for part of April. It was no doubt the intention of the Industrial Registrar to list the matter for hearing in due course. However, no date was ultimately fixed for the hearing of the substantive matter. As mentioned below, the matter was listed before Deputy Industrial Registrar Hourigan on 18 March 2015 for mention. That was the first occasion the matter had been called before the Industrial Registrar. It was shortly thereafter listed for hearing of an application to dismiss for want of due despatch: the first occasion the matter was listed for hearing (for any purpose).

2. On the same day, that is 14 October, the respondent’s solicitor communicated with the appellant’s solicitor by email suggesting amended consent orders by which the respondent would file its evidence by 16 October 2014. The appellant would (by way of extension to the programme in its favour) file its evidence by 21 November with reply material being received by 25 November 2014 and the appellant’s solicitor consented to the extension. (Some proposed consent orders reflecting this change to the programme were forwarded by the respondent’s solicitor to the appellant’s solicitor but were not executed. The amended orders were not filed.) The respondent’s solicitor filed two statements of evidence on behalf of the respondent on 17 October 2014: Denis Aslanis and Lesley Jennings (with an accompanying exhibit).

3. The appellant had not filed and served any evidence before a further exchange between the legal representatives of the parties in the early New Year.

4. On 23 January 2015, Mr Butterfield contacted Mr Cureton by email indicating that he expected Mr Cureton had been attempting to contact him regarding his client’s evidence. He advised that “there [had] been some unavoidable issues at our end” and indicated that proposed consent orders were attached. There was apparently some difficulty with those orders reaching the respondent and, in the result, Mr Cureton amended the earlier consent orders, signed them and forwarded them to the solicitor for the appellant. Those draft consent orders required the appellant to file and serve her material by 13 February 2015 and the respondent to file material in reply by 6 March 2015. Those draft orders were dated 4 February 2015. Mr Cureton sought that Mr Butterfield lodge the consent orders “with the IRC”.

5. On 4 February 2015, Mr Butterfield advised Mr Cureton that his client had been “unwell” and “at this stage I do not envisage filing her statement by 13 February”. He proposed draft consent orders by which the appellant would file her material by 27 February 2015 and reply material to be provided on 20 March 2015. Those orders were signed by the respondent (although apparently not until 27 February 2015) and forwarded to the appellant’s solicitor that day with an email asking the question “Will we be getting the Appellant’s evidence today?”. That reply attracted a communication from Mr Butterfield on the same day, as follows: “We will need a further 14 days or so - 16 March 2015”. Again, the consent orders were not filed in the Commission.

6. The respondent did not consent to the further extension of time sought by the appellant’s solicitor.

7. The matter was listed before the Deputy Industrial Registrar on 18 March 2015 of her own initiative due to the failure of the appellant to comply with directions earlier issued in the proceedings. There were appearances on that date by Mr S Tully of counsel for the appellant and Ms Edwards for the respondent. The Deputy Industrial Registrar was advised that a notice of motion to strike out the proceedings would be filed by the respondent. Mr Tully said he had instructions to “re-establish the timetable”. It was determined that the matter would be stood down in the list and the motion referred to a Member once filed. As earlier mentioned, the motion was filed on that same day.

29. When the motion was listed for hearing before Newall C on 23 March 2015, Mr S Tully appeared with Mr Butterfield for the appellant and Ms Edwards appeared with Mr Cureton for the respondent. It was common ground in these proceedings that the affidavit of Mr Cureton filed in support of the motion sworn 18 March 2015 and a further affidavit sworn on 20 March 2015 went into evidence before the Commission on the motion (they did not receive a marking). In the first affidavit the deponent stated (at [12] and [14]):

12. The Applicant has not filed any evidence in the matter.

14. The Applicant has provided no clear reason and/or evidence for the delay.

30. In the affidavit sworn 20 March 2015, Mr Cureton deposed:

…

3. Denis Aslanis is a Senior Human Resources Business Partner, Strategic Human Resources in the employ of the Respondent. The Respondent in these proceedings is the Department of Family and Community Services, Housing NSW. The Applicant was formerly employed by Housing NSW. Mr Aslanis’s position lies with the “umbrella” organisation of the Department of Family and Community Services (FACS), which is responsible for the agencies within the

Department, including Housing NSW.

4. In or about August 2014, the then Chief Executive of Housing NSW, Mike Allen, who was the decision-maker in this matter, retired. The Secretary of the Department of Family and Community Services is now responsible for Housing NSW and its employees.

5. The respondent has filed and served a statement in relation to this matter by Mr Aslanis on or about 16 October 2014.

6. Mr Aslanis has been involved in relation to the Applicant’s employment since 2010. He is the person best placed to provide the evidence given in his statement. He is also the person best placed to provide instructions on the matter to the respresentatives of the Respondent and advice to the Secretary of the Department.

7. Mr Aslanis is retiring on 30 June 2015. On 19 March 2015 I received an email from Mr Aslanis concerning his retirement. Annexed to this affidavit and marked A is a copy of the email.

8. The respondent is prejudiced by the delay in the applicant’s provision of its evidence.

(a) Key personnel have, or are, retiring. The Respondent will be prejudiced by the loss of the knowledge provided by Mr Aslanis.

(b) The Respondent may have to depose another witness to give some or all of the evidence provided by Mr Aslanis.

(c) The length of time that has passed since events in this matter occurred will prejudice the Respondent’s case.

31. In the hearing, the solicitor for the appellant relied upon an affidavit sworn by her on 19 March 2015 attesting to her being unwell and annexing a report from South West Radiology and a medical certificate issued by Dr Maha Mikhail on 19 March 2015.

32. Leaving aside the formal parts of her affidavit, the affidavit evidence of the appellant relied on before the Commissioner was as follows:

…

3. On or about December 2014 I became unwell and have been suffering from bronchitis and dyspepsia.

4. As a result of my illness I have had difficulty in instructing my solicitors and providing them with documents to enable them to finalise the preparation of my evidence.

5. I am continuing to receive treatment for the bronchitis and dyspepsia, however I have [sic] now well enough to instruct my solicitors so that they can finalise the preparation of the evidence for hearing

.

6. Attached and marked JKB 1 is a copy of Chest XRay report of Dr Fiona Leung of South West Radiology DATED 3 December 2014.

7. Attached and marked JKB2 is a medical certificate of my treating doctor, Dr Maha Mikhail dated 19 March 2015.

33. The medical report from South West Radiology signed electronically by Dr Fiona Leung states, after a chest xray, that there is “accentuation of the bronchovascular markings, suggestive of inflammation or chronic bronchitis, however, no focal area of consolidation is seen. No plural effusion is detected”.

34. The medical report from Dr Mikhail stated that the appellant had been receiving medical treatment for bronchitis and dyspepsia and “is still on treatment. She has been on treatment since December 2014”.

35. In his submissions Mr Tully referred to the illness of the appellant. Mr Tully acknowledged that there had been “a little bit of slippage in terms of the timetable” and that the respondent had not objected to the delay, if not encouraged the delay. He argued that the respondent could not now complain. He said there were two periods, the first in which there was consent to adjournments and the second in which the delay was occasioned by the appellant’s ill health which had been advised to the respondent. The reasons advanced for the second period was “essentially … the applicant’s ill health”. The Commissioner was taken to parts of the medical evidence. Mr Tully pointed to the evidence of the appellant that she was seeking another or further medical certificate and that she was “hopeful of being able to assist and provide evidence to the [Commission]”. A document was produced in which the appellant had offered her solicitors a “prognosis supported on medical evidence that she [expected] to be able to complete her preparation within the next four weeks”. The appellant had been giving instructions to her solicitors regarding adjournment and had a conference with counsel in late 2014. After submitting that the respondent may need some additional time to put on evidence, counsel submitted:

I don’t see any particular reason why if the matter – no reason why the matter couldn’t progress fairly readily and at a prompt speed from this day forward and certainly the difficulty with respect to any sort of special prejudice that might be experienced by a future retirement of one of the witnesses that are involved, if that matter were listed for hearing and dealt with very quickly, I can’t see that as being a particular obstacle to the conclusion of the proceedings.

The appellant conceded that the reasons for delay had not been apparent to the respondent until the day of the hearing. The “applicant accepts that [she] did not relist the matter before the Commission” and “possibly should have done so”. However, the respondent was also in default in this respect. Further, it was indicated that the appellant would accept a guillotine order.

36. Mr Tully submitted the affidavits filed by the respondent revealed they were not particularly ready to proceed. This was indicated by the fact that one of the witnesses was due to retire.

37. During the course of the Commissioner delivering his decision there was an interruption by the solicitor for the appellant. The application (for an adjournment), submissions and exchanges between those appearing and the Commissioner during that interruption form a continuous part of the record of the Commissioner’s ex tempore decision. Mr Butterfield, who had interrupted the Commissioner, explained that an attempt had been made to obtain a more detailed explanation as to the appellant’s illness and to obtain a further doctor’s certificate. That would not be able to be done until 24 March 2015. Mr Butterfield stated that a doctor’s certificate (which he accepted was deficient) was the product of the short period of time between the listing of the matter before the Commissioner for failure to comply with orders and the hearing of the motion. Efforts to obtain a further medical certificate were to no avail.

38. The following exchange then occurred between Mr Butterfield and the Commissioner:

COMMISSIONER: But there is a medical certificate. Although that is engaging, Mr Butterfield, as you are instructing Mr Tully, there was a certificate issued on 19 March 2015. Presumably at that time the appellant either attended or contacted the doctor and caused the certificate to be issued.

BUTTERFIELD: Indeed.

COMMISSIONER: There has been an awareness, if I look at the correspondence passing between yourself, as I observe it, and solicitors for the respondent that there was a running failure to meet the directions made by the commission and that was because of illness. In those circumstances, why wasn’t it entirely incumbent upon the appellant or solicitors acting for her to produce before this day, well before this day, a certificate indicating that there was in fact a medical reason for the failure to abide by the commission’s directions?

BUTTERFIELD: Indeed.

COMMISSIONER: That’s my question to you.

BUTTERFIELD: It wasn’t done because of the deep seated concern that my client has regarding her employer and it is Mr Cureton and I who have been in the matter since I first came in the matter about two years ago. There is a real concern with Mrs Beavan and her former employer and that is reflected in various parts of the substantive matter. It is not simply a matter of Ms Beavan throwing her hands up and saying, ‘well, I’ll do it on my own timetable’. That’s certainly not the case. But what my concern was, as soon as I got access to that doctor’s certificate, which did not particularise those matters which were required to be particularised, that is, causative effect of the illness…

39. The Commissioner posed a question to Mr Butterfield to which an affirmative answer was given. That question was:

Yes, Mr Butterfield, I understand, for example, that your client has earlier expressed a concern that she couldn’t bring evidence in her case because the respondent would victimise the persons who might give evidence in her case. That’s the sort of concern we’re talking about?

40. Ultimately, Mr Butterfield, after conceding the medical certificate adduced in favour of the appellant did not disclose an illness which “sound[ed] serious”, sought additional time to obtain medical evidence. That application was refused.

The Impugned Decision

41. The Commissioner noted the matter had been listed on the Commission’s own initiative and that neither the appellant nor the respondent brought the matter before the Commission prior to the matter being relisted.

42. The Commissioner considered that the onus for having the matter relisted, where there was non-compliance with orders, fell in practical terms upon the appellant because it was the appellant who had not complied with the orders. It was the defaulting party who had the obligation to first come before the Commission to “explain themselves and seek the indulgence of the Commission or the Court in an extension of time”.

43. Notwithstanding the form of the motion, the Commissioner recognised the question before him was whether the appellant had prosecuted the proceedings “without due dispatch” and that the Commission may, in its discretion, order, in those circumstances, that the proceedings be dismissed. He described “dispatch” as “speed, alacrity, it is attending the proceedings with a necessary vigor”.

44. The Commissioner stated that the principles surrounding the exercise of the Commission’s discretion “in respect of applications of this kind have been adverted to most recently and effectively by the High Court” in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 (‘Aon Risk Services’). He identified Aon Risk Services “set a new set of parameters for dealing with applications of this kind” and that the High Court had pointed to a number of relevant factors. Those factors were not confined to the conduct of the matter between the parties but to the “broader context in which applications of this kind must be considered”. In that respect, the Commissioner identified “questions of the waste of public resources and delay and the strain on litigants should be taken into account and so should the potential for loss of public confidence in the legal system which arises when a court is seen to accede to applications made without adequate explanation or justification for delay”.

45. The Commissioner considered that the High Court in Aon Risk Services had emphasised “that the Court or Commission has obligations not only to the parties before it but also to all other litigants” and “there is a need to do justice to all litigants before a court or commission”. There was a particular need to emphasise this principle in this tribunal “which is, to be candid, under resourced, has insufficient Commissioners and judges to do work before it and in which people are waiting to have matters heard a longer time than the Act suggests that they ought do, the Act with its emphasis on expedition of proceedings”. He continued that “it is in those circumstances that courts and commissions sometimes have to make orders which, as the High Court said in Aon Risk Services, may produce a sense of injustice in one party for the sake of doing justice to the opponent and to other litigants”.

46. The Commissioner considered that costs could not remedy delay, as costs were not applicable to the proceedings and, more generally, costs were not “a basis upon which adjournment can be provided for the asking”.

47. The Commissioner accepted that the respondent had acceded to a number of extensions of time to put on evidence “and in some sense, of course, those extensions cannot be held against the appellant because they were consented to”. There had not been “a wanton and deliberate breach of directions”.

48. Commissioner Newall found that, nonetheless, delay “as a whole goes to the Commission’s obligations to itself, its own resources and to other parties”. The parties cannot between themselves accede to delay which occasions difficulty in the conduct of the case or causes a waste of the Commission’s resources and time.

49. The Commissioner gave “some weight” to prejudice to the respondent vis-á-vis the availability of the evidence of a principal witness.

50. In those circumstances, the party who has not complied with the orders needs to satisfy the Commission that there was a proper and adequate reason for delay.

51. The medical evidence called by the appellant did not provide such an explanation for delay. There was no indication by any medical practitioner that the illnesses referred to in the appellant’s affidavit, namely bronchitis and dyspepsia had interfered with the appellant’s capacity to instruct. Further, there was no incapacity “to deal with the case going forward”.

52. It was accepted that the appellant’s solicitors had given notice to the respondent that illness was a basis for delay. However, the illnesses suffered by the appellant did not appear, on their face, to be illnesses which would “prevent any kind of instruction being given to solicitors or counsel”. There was no medical evidence to the contrary. Further, conferences with counsel had occurred during the period of time in which the appellant was certified as unwell.

53. The Commissioner stated he had formed “no view as to the merits of the proceedings”. He indicated that he was “not obliged to do so and I [did] not”. The opinion he had formed was based entirely on what had happened since August 2014 (the Commissioner identified there had been “long running proceedings in other jurisdictions but did not hold that in any way against the appellant” or “form any view about the way in which these proceedings might run based on those”).

54. There was yet “no date set upon which the appellant’s material might be put on”, in circumstances where, even allowing for agreements reached between solicitors, there had been “several defaults”.

55. The Commissioner observed “[a]nother doctor’s appointment is planned for 24 March and the proposition is advanced by the appellant in an e-mail shown to the commission that another four weeks might do it; they are my words but that is the level of certainty which is advanced”.

41. Overall, and despite “civilised discussions between solicitors”, the Commission was not informed of adjustments or defaults to the programme, there had been multiple failures to produce evidence on time and failure to comply with orders “since August last year” and no proper and adequate reasons for the delay had been provided by the appellant in circumstances where orders made “in August last year have not yet been complied with”. There was no proper basis upon which a view could be formed that the matter would be prosecuted with due dispatch if the motion were refused.

42. The Commissioner found that, in all the circumstances, this matter was not prosecuted with due dispatch and that the proper exercise of his discretion was to order that the proceedings be dismissed.

SUBMISSIONS

Appellant

58. Counsel for the appellant made oral and written submissions which, when taken together, may be summarised as follows:

1. In making the decision below, the Commissioner explicitly and implicitly adjudicated upon issues that required, for their determination, the identification of a relevant matter of law, namely, the nature of the jurisdiction and the questions which required resolution. The Commissioner’s decisions as to those matters were incorrect as a matter of law and he consequently erred in his approach to the exercise of the discretion to dismiss a matter for want of due dispatch.

2. In the proceedings below, the Commissioner applied the judgment in Aon Risk Services, simpliciter. The Commissioner erred in purporting to apply the principles set out therein and by effectively asking the following incorrect questions:

1. Whether the Commission’s discretion was to be exercised in the same manner as Aon Risk Services;

2. Whether the Commission must be satisfied that the matters in Aon Risk Services were satisfied; and

3. Whether the appellant needed to satisfy the Commission that the proceedings would be exercised with due dispatch in the future.

3. In any event, the appellant submitted that Aon Risk Services was not directly relevant to the proceedings below (even though some factors in Aon Risk Services may be relevant). That distinction, which the Commissioner did not identify, was predicated upon the following:

1. Unlike Aon Risk Services, this matter was not listed for hearing. The impact on the other parties is not relevant here and “there simply was no prejudice to other litigants or to the Court”;

2. The matter relates to dismissing the proceedings for want of dispatch which was not an issue addressed in Aon Risk Services; and

3. The proceedings in Aon Risk Services concerned an adjournment application to amend pleadings, which substantially altered the claims against Aon, whereas the matter was finally disposed of in the proceedings below.

4. Such differences were articulated in Pacanowski v Simon Wakerman & Associates [2009] NSWCA 402 (‘Pacanowski’) where the New South Wales Court of Appeal identified that Aon Risk Services was not directly relevant to dismissal proceedings. Those differences are matters that the Commissioner should have taken into account, but it did not.

5. As to the second ground of the appeal, it was submitted the Commissioner applied his own test to the resolution of the motion.

6. The starting point for the Commissioner’s consideration should not have been Aon Risk Services, but the relevant legislation, namely, the CP Act and, to a lesser extent, the Act.

7. In light of the introduction of ss 56 to 60 of the CP Act, the authorities make clear that the exercise of the power under r 12.7 involves a balancing exercise, in the course of which a variety of factors may be considered: see Hoser v Hartcher [1999] NSWSC 527 (‘Hoser’) and Dank v Cronulla Sutherland District Rugby League Football Club Limited [2014] NSWCA 288 at [102] and [103] (‘Dank’). The Commissioner did not undertake a balancing exercise of the relevant factors. In fact, the Commissioner applied his own test, rather than those outlined in Pacanowski or Dank.

8. The Commissioner should have considered “those matters largely set out in Hoser at [25 (6.)]”.

However, the appellant accepted that the factors identified in Hoser were not the only factors that must be taken into account since the decision in Aon Risk Services.

9. The balancing of all relevant factors is necessary in order to do justice between the parties. After balancing the prejudice to each party, the Commission must be satisfied that justice demands the application be dismissed. The Commissioner erred in failing to undertake that process of reasoning.

10. The appellant contended that “only those matters which were adverse to the appellant” were considered by the Commissioner. In particular, the Commissioner’s consideration was erroneous in the following manner:

1. Unlike most matters that may be dealt with under r 12.7 of the UCPR, when the proceedings below were dismissed it became impossible for the appellant to commence proceedings again because of the statutory time limits relating to public sector disciplinary appeals. The Commissioner failed to consider that, by the dismissal of the appellant, she was deprived of the opportunity to recommence the proceedings and thereby present the merits of her case. The Commissioner failed to take into account the prejudice to the appellant in this respect;

2. In written submissions, it was contended there “simply was no prejudice to other litigants or to the Court”: see Pacanowski at [13] to [15]. In oral submissions, it was put that any prejudice was “at best” minor. The fact that an individual may, at some stage in the future, not be working for the respondent should not represent a significant factor. Any suggestion of presumptive prejudice by the respondent was “mere speculation”. There was no prejudice to other litigants. The matter had not been set down for hearing and dates were lost; and

3. It is not a relevant factor in the balancing exercise that the appellant failed to inform the Commission as to the reasons for the delay.

11. It is conceded that the appellant did not advance argument as to the proper balancing exercise below, however, she did not know the Commissioner’s reasoning process until the impugned decision was made (without the requisite balancing exercise).

12. It is not surprising that the appellant did not give evidence as to when the matter might progress given her medical condition. In any event, a lack of evidence in that respect did not form part of the Commissioner’s decision.

13. The Commission should grant the appeal and quash the decision and the orders of the Commissioner below.

Respondent

59. Counsel for the respondent made oral and written submissions which, when taken together, may be summarised as follows:

1. The appeal must fail as the grounds pleaded do not amount to an error of law.

2. The Commissioner was entirely correct in having regard to Aon Risk Services in determining how he would exercise the discretion under r 12.7. He held that the discretion to dismiss proceedings under r 12.7 of the UCPR was of a similar kind to that exercised in relation to the discretion to provide leave (or not) to amend pleadings where the objective of the rules is to provide (in that case) a “just resolution of real issues in proceedings and timely disposal of proceedings at an affordable cost”.

3. The significance of Aon Risk Services was that it changed the framework of how discretions are to be exercised. The principle arising from Aon Risk Services was not a specific principle to be applied when amendments may be entertained, although that was the practical outcome of the case. It was that discretions authorised under the rules of a court all require proper regard to be had to the general rules or legislation that are “plainly intended to guide the exercise of the particular discretion”: at [72] (per Gummow, Hayne, Crennan, Kiefel and Bell JJ - ‘the plurality’) (although it may be noted that the Court was there referring specifically to r 21 of the Court Procedure Rules 2006 (ACT) (‘the ACT Rules’) under consideration in that matter).

4. The Commissioner was not in error in having regard to the principles in Aon Risk Services insofar as those principles provide authority that, in exercising any of the discretions under the UCPR, regard ought to be had to s 56 of the CP Act (which is applicable to the Commission).

5. In Bi v Mourad [2010] NSWCA 17 (‘Mourad’), Young J (with whom Allsop P and Sackville AJA agreed at [37] and [46] respectively) stated Hoser was affected by Aon Risk Services (at [28]) (and see Allsop P (at [49])). In that sense, the context of the balancing exercise in Hoser was amended by the decision in Aon Risk Services. Thus, while Hoser is still a valuable guide it would be wrong to treat it as the only answer in cases such as the present, because it must be read in the context of the different facts and circumstances of each case and in the context of general overarching obligations such as those set out in s 56 of the CP Act or r 2.1 of the UCPR.

6. As to the appellant’s contention that the absence of a hearing date meant no prejudice to the other litigants or the Court, the appellant relied upon the judgment of Allsop P in Mourad at [47] and [48].

7. As such, the Commissioner was not in error to have regard to the principles in Aon Risk Services insofar as those principles provide authority for the fact that in exercising any of the discretions either under the UCPR or IRC Rules 2009 regard ought to be had to s 56 of the CP Act.

8. The rules which are relevant in the present case are not dissimilar to r 21 of the ACT Rules. The respondent relied, in that respect, upon the judgment of the plurality in Aon Risk Services (at [89] and [90]) where reliance was placed on a particular rule, r 502(1), and a general rule, r 21. Both rules express that the objectives of the relevant section “are to be sought” in the exercise of the discretion.

9. The appellant essentially seeks to re-plead her case below in circumstances where she did not place all the evidence before the Commissioner in those proceedings. The matter is, in that sense, analogous to Aon Risk Services. As such, the Commissioner was correct to have regard to that case. Further, the Commissioner was required to adjudicate upon not only an application to dismiss for want of due dispatch, but also on an adjournment as sought by the appellant’s solicitor, the latter being the same issue that concerned the High Court in Aon Risk Services.

10. The appellant should not be permitted to present different contentions on appeal to those advanced below.

11. The appellant was correct to contend that, upon the authority in Hoser (at [20] to [30]), the Commissioner was required to balance the prejudice between the respective parties by making or not making an order. However, the appellant did not identify the other factors that she asserted should have been balanced. That deficiency arose because the decision of the Commissioner “reflects exactly the evidence that was available on the day and the submissions that were made on the day”. The Commissioner was only able to undertake that balancing exercise about matters of which he had received evidence or had been the subject of submissions that had been made at the hearing of the motion.

12. The Commissioner’s consideration on the following matters was correct given the evidence before him:

1. The Commissioner properly took into account the delay between the commencement of the action by the appellant and lack of steps being taken to secure progress in the proceedings;

2. The Commissioner took into account the explanation offered by the appellant for the delay in the proceedings as he was required to do by authority. The appellant’s evidence, in that respect, was that she was too unwell to prosecute the proceedings;

3. The onus in the proceedings below fell on the respondent to establish the hardship upon which reliance was placed. The respondent identified delay, lack of explanation for the delay and prejudice as the relevant factors to the respondent;

4. As to the prejudice to the respondent occasioned by the retirement of Mr Aslanis, he could not necessarily be compelled to provide further evidence and the respondent would be required to bring someone else ‘up to speed’ on the proceedings which would incur additional costs;

5. There was no evidence of prejudice to the appellant before the Commissioner, save for the fact that she would not be able to bring a public sector disciplinary appeal under the IR Act if he dismissed the proceedings for want of dispatch. Whilst that prejudice was not raised by the appellant before the Commissioner, he would no doubt have been aware of the statutory time limit to such a claim;

6. The appellant’s prospects of success were also a relevant factor (albeit one which was not predominantly relied upon by the respondent);

7. The Commissioner was correct to find that the appellant ought to have ensured that all of the relevant evidence concerning the motion was before him;

8. There was no adequate explanation as to why that evidence or any further evidence had not occurred before the date of hearing in that case, particularly when the appellant had been given every opportunity to advance her case (including, in effect, evidence being submitted from the bar table); and

9. Following Pacanowski, both actual prejudice and presumptive prejudice need to be taken into account (with presumptive prejudice being a much lower hurdle). The retirement of Mr Aslanis accords with that point. In this matter, the respondent put on evidence of actual prejudice and the Commissioner correctly gave weight to the same.

13. The Commissioner also correctly followed the approach taken by McCallum J in Al-Shennag v Woodcock [2013] NSWSC 696 (‘Al-Shennag’) (in which her Honour applied Hoser and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 (‘Micallef’)). Particular emphasis was placed on the following passages:

1. The respondent noted two parts of [64] of Al-Shennag, which recorded the summary of the respondent in that case of the principles in Micallef. Those sections were as follows:

64 (c) a plaintiff who enlists the judicial arm of the State by invoking legal process and persistently fails to comply with the conditions laid down may be said to abuse the process invoked, and this can constitute contumelious conduct in the absence of an explanation: Micallef at [55]

…

(e) Rule 12.7 of the UCPR (the equivalent provision to that considered in Micallef) contemplates the possible termination of a case without determination of an issue between the parties on the merits. Such termination is not necessarily unreasonable or unjust: Micallef at [63]-[64], [85].

2. Her Honour considered the prospects of the future prosecution of the matter (at [106]):

In my assessment, the history of the proceedings set out above establishes not only that Mr Al-Shennag has failed to prosecute his action with due despatch but that he is incapable of doing so.

3. Al-Shennag established that the relevant question to be asked was “what is the likelihood of constructive steps being taken in the case?”, rather than merely the likelihood of any activity which would not necessarily move the litigation forward. Her Honour stated (at [110] and [111]):

110 The present case is unusual in that the plaintiff has not been dilatory. However, the discretion conferred by the rule is not confined to cases of delay caused by inaction. The prejudice faced by Mr Woodcock is that he must remain active in litigation which is slow to be brought to finality, not for want of any activity on the part of Mr Al-Shennag, but for want of any constructive activity. The prejudice of being required to face Mr Al-Shennag's numerous specious claims and allegations is manifest. As noted in Micallef, the rule contemplates the possible termination of a case without determination of an issue between the parties.

111 In the present case, there is a more compelling reason for taking that course than in the case of mere dilatoriness. In my view, there is a substantial risk that, even assuming the plaintiff is successful, the costs of the action have already become disproportionate to any award of damages Mr Al-Shennag may receive. The claim for economic loss is substantial but most probably ambitious. Leaving that part of the claim aside, and for present purposes disregarding the defences, the cost of the ill-conceived applications Mr Al-Shennag has lost along the way is not warranted by any likely award of general damages for defamation and thereby offends the proportionality of costs principle enshrined in s 60 of the Civil Procedure Act.

14. The Commissioner in this case effectively came to the same conclusion, namely, “that in the absence of evidence as to when the Applicant could in fact comply he was not prepared to allow the case to continue” as, even on the applicant’s own evidence, “there was no guarantee that productive steps would be taken at any time in the future”. Thus, the proper application of the authority in Al-Shennag was reflected in the Commissioner’s decision.

15. Leave is not required to bring the appeal but, if it is found that it is, then it should not be granted.

Relevant Legislation and delegated legislation

60. Sections 56 to 59 of the CP Act are in the following terms:

56 Overriding purpose (cf SCR Part 1, rule 3)(1) The overriding purpose of this Act and of rules of court, in their

application to a civil dispute or civil proceedings, is to facilitate the just,

quick and cheap resolution of the real issues in the dispute or

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) A party to a civil dispute or civil proceedings is under a duty to take reasonable steps to resolve or narrow the issues in dispute in accordance with the provisions of Part 2A (if any) that are applicable to the dispute or proceedings in a way that is consistent with the overriding purpose.

(4) Each of the following persons must not, by their conduct, cause a party to a civil dispute or civil proceedings to be put in breach of a duty

identified in subsection (3) or (3A):

(a) any solicitor or barrister representing the party in the dispute or

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), (3A) 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.

(7) In this section:

party to a civil dispute means a person who is involved in the dispute.

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).

10.2 The appeal is upheld.

10.3 The Commissioner's orders of 23 March 2015 are quashed.

10.4 The proceedings are returned to the Commissioner for programming and determination.

167. Given the conclusions reached in [20] of this judgment, the appropriate form of order for the first of the claims is that, if leave to appeal is required, the leave is granted.

168. The form of relief sought in paragraph 10.2 should be granted given the errors of law found in this judgment.

169. Turning to the third ground of relief, the errors of law found in this judgment are such that the orders made by the Commissioner at first instance cannot stand. There is no discussion before the Court as to whether the orders should be quashed or set aside. In the circumstances, it would appear appropriate to make the order sought in paragraph 10.3, namely, that the orders of the Commissioner made on 23 March 2015 are quashed.

170. That brings to consideration the last order sought.

171. It was not entirely clear whether the final order sought by the appellant was predicated upon the provisions of s 197B(2)(a), namely, a remitter of a matter to the Commission for determination in accordance with this judgment or an alternative form of order that the matter be determined by this Court as if the Court were re-exercising the discretion exercised by the Commissioner under r 12.7. Given doubts may exist as to whether the Court may exercise the latter power under s 197B(2), it seems appropriate the Court give the parties a short opportunity to make submissions as to the form of relief that is appropriate having regard to this judgment. A related consideration would be whether any other orders should be made under s 197B(2) such as the expedition of any proceedings or other procedural matters.

172. The appellant shall file and serve further submissions in writing as to the relief claimed (and any amended orders sought) with seven days of this judgment and any reply by the respondent shall be filed and served within a further seven days. Accordingly, I direct that the appellant file and serve any further submissions as to the relief claimed in the light of this judgment on or before 4pm 17 February 2016 and the respondent to file and serve any further submissions in that respect on or before 4pm 24 February 2016. Any further judgment as to orders to be made in the disposition of the appeal will be undertaken on the papers unless there is an application for a short oral hearing or the Court forms a view that it would be assisted by further oral submissions of the parties.

Amendments

26 May 2016 - This judgment was amended to replace the reference to "s 163(1)(b)" at [26] with "s 163(1)(c)" per the direction of the Court in Beavan v Industrial Relations Secretary (No 3) [2016] NSWIC 5 at [28].

01 March 2016 - Title of judgment was amended from Beavan v Family and Community Services (Housing NSW) [2016] NSWIC 1 to Beavan v Industrial Relations Secretary (No 1) [2016] 1 on 1 March 2016 in accordance with the judgment of the Court in Beavan v Industrial Relations Secretary (No 2) [2016] NSWIC 3

Decision last updated: 26 May 2016