Mark Versace and New South Wales Police Service [2005] NSWIRComm 20 (8 February 2005)

Last Updated: 16 February 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Mark Versace and New South Wales Police Service [2005] NSWIRComm 20

FILE NUMBER(S): 1139

HEARING DATE(S): 07/02/2005, 08/02/2005

EX TEMPORE DATE: 08/02/2005

PARTIES:

APPLICANT:

Mark Versace

RESPONDENT:

New South Wales Police Service

JUDGMENT OF: Sams DP

LEGAL REPRESENTATIVES

APPLICANT:

No appearance for the applicant

RESPONDENT:

Mr R Reitano of counsel,

instructed by the New South Wales Police Service

CASES CITED: Hutchinson and Karl Azzi Hairstylists [2002] NSWIRComm 133

Lin v Roseville Golf Club Limited [2002] NSWIRComm 81

Peter Payam Far and Brian Manning Dodd & Stephen John Dodd t/as Rishworth Dodd & Co, Solicitors [2002] NSWIRComm 181

LEGISLATION CITED: Industrial Relations Act 1996

Industrial Relations Commission Rules

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: SAMS DP

10 February 2005

Matter No IRC04/1139

MARK VERSACE AND NEW SOUTH WALES POLICE SERVICE

Application by Mark Versace re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2005] NSWIRComm 20

1 This matter was listed for arbitration from 7 - 11 February 2005. On the first day of the hearing the applicant failed to attend the proceedings. The Commission adjourned the matter until the following day in order for attempts to be made to contact the applicant. This proved unsuccessful. On the following day, again with no appearance by the applicant, the Commission dismissed the application for want of prosecution.

2 I now publish my reasons.

3 The applicant, Mark Versace had alleged that he was unfairly dismissed on 13 February 2004 from his position as a Police Officer with the New South Wales Police Service ('the respondent'). On 5 March 2004 the applicant filed a claim of alleged unfair dismissal pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act'). It is obviously unnecessary, for the purposes of this decision, to detail the circumstances surrounding the applicant's dismissal.

Nature of Proceedings

4 The matter was first listed for directions and conciliation on 1 April 2004. Ms J Wright (Solicitor) appeared for the Police Association of New South Wales on behalf of the applicant and Ms M Buchanan appeared for the respondent. The Commission chaired conciliation conferences with the parties. Unable to reach a settlement of the matter, the Commission listed the matter for hearing for ten days in September and October 2004 and directions were issued for the filing of evidence.

5 On 21 June 2004, the Commission received a notice of ceasing to act, filed by Ms Wright of Jones Staff and Co. Solicitors. In all proceedings subsequent to that date, Mr Versace appeared in person.

6 On 5 July, the respondent advised the Commission that the directions issued on 1 April 2004 had not been complied with by the applicant. Accordingly, the matter was listed for further directions on 30 July. However, on that occasion, the Commission formed the view that the matter might still be able to be conciliated, and a conciliation conference was listed for 9 August (subsequently changed to 24 August). The conference proved to be unsuccessful. The directions that had been earlier issued could no longer be complied with, and the dates for hearing could not be accommodated. New hearing dates were set for February 2005 and fresh directions were issued.

7 On 5 November, the Commission was advised, by the respondent, that the applicant was seeking an extension of time in order to comply with the directions issued for the filing of his evidence. The matter was listed for further directions and the extension was granted.

8 On the first day of the hearing, Mr R Reitano of counsel appeared for the respondent. There was no appearance by, or for the applicant. Mr Reitano applied to have the application dismissed for want of prosecution and foreshadowed an application for costs.

9 For abundant caution, the Commission adjourned the matter to the following day, with the intention of contacting the applicant in the interim. My staff made more then twenty attempts to contact the applicant by phone, between 10:00am and 5:15pm on 7 February, and two further attempts on 8 February. He was unable to be contacted. Inquiries were also made with Telstra to determine whether there was a fault with the applicant's phone line. Telstra advised that there was no fault.

10 The following day the applicant again failed to attend the proceedings. Mr Reitano sought to have the matter dismissed for want of prosecution, but did not press the application for costs. The Commission dismissed the application for want of prosecution at the conclusion of the proceedings.

CONSIDERATION

11 The principles to be applied by the Commission when considering whether to dismiss a matter for want of prosecution were discussed by me in Hutchison v Karl Azzi Hairstylists [2002] NSWIRComm 133, Xiu Zhen Lin v Roseville Golf Club Limited [2002] NSWIRComm 81 and Peter Payam Far and Brian Manning Dodd & Stephen John Dodd t/as Rishworth Dodd & Co, Solicitors [2002] NSWIRComm 181. I would adopt the principles discussed in those cases and refer in particular to what I said in Lin v Roseville Golf Club:

The discretionary powers of the Commission to dismiss a matter for want of prosecution are to be found in Pt 17, Div 4 of the Commission's Rules - Want of Prosecution. Rules 146 and 147 provide:

146 Where any party has not done any act required to be done by or under the Act or any other Act or otherwise has not pursued the proceedings with due diligence, a tribunal may:

(a) Order that the application be dismissed for want of prosecution; or

(b) Fix a definite time for the doing of the act and at the same time order that upon non-compliance the application shall stand dismissed for want of prosecution or subsequently, in the event of non-compliance, order that it be dismissed; or

(c) Make such further or other order as in the circumstances may seem just.

147 Subject to any right of appeal, where a tribunal dismisses an application for want of prosecution the applicant shall not claim the same relief in fresh proceedings

In Kaprivinjak and others v Body Corporate Services (NSW) Pty Limited, 87 IR 49, Peterson J considered similar provisions in the Supreme Court Rules and the general principles that have been distilled from judgments of the Supreme Court.

The Commission's discretion in this matter is referred to in Pt 19, Withdrawals and Discontinuance, Div 4, Want of Prosecution, of the Commission's Rules. Rules 146 and 147 provide:

"Want of Prosecution

146. Where any party has not done any act required to be done by or under the Act or any other Act or otherwise has not pursued the proceedings with due diligence, a tribunal may:

(a) Order that the application be dismissed for want of prosecution; or

(b) Fix a definite time for the doing of the act and at the same time order that upon non-compliance the application shall stand dismissed for want of prosecution or subsequently, in the event of non-compliance, order that it be dismissed; or

(c) Make such further or other order as in the circumstances may seem just

Effect of dismissal

147. Subject to any right of appeal, where a tribunal dismisses an application for want of prosecution the applicant shall not claim the same relief in fresh proceedings."

The primary objective of the discretion to dismiss a matter under r 146 appears to me to be synonymous with that which arises under Supreme Court Rules (NSW). Mr Rogers made the point that r 147 creates a position different to that under the Supreme Court Rules (NSW) in that a dismissal for want of prosecution in this Commission creates a res judicata in relation to the relief sought. There is no such equivalent in the Supreme Court Rules (NSW). However, as Mr Corsaro submitted, in the Supreme Court there is generally no point in seeking to have the matter dismissed for want of prosecution if it is within the limitation period and capable of being recommenced. The point thus is usually taken in minutes in respect of which the limitation period has expired and accordingly the effect is the same: a dismissal is final.

In the Supreme Court the leading point of reference in the Authorities is the judgement of Cross J in Calvert v Stollznow (unreported, 1 April 1980, Supreme Court Procedure, Vol 2, pp 8528-8545) affirmed on appeal in Stollznow v Calvert [1980] 2 NSWLR 749. As a result of those judgments the following principles may be expressed:

1. Each case must depend on its own facts, without adherence to rigid formulae.

2. The Court must decide whether or not on balance justice demands that the action should be dismissed

3. The blamelessness of a plaintiff personally for the delay is a fact relevant to be considered. Any fault of the plaintiff's solicitor should not, as a matter of course, be attributed vicariously to the plaintiff.

4. Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered, is credible and satisfactory.

While his Honour was dealing with unfair contract proceedings in the Commission in Court Session under s275 of the Industrial Relations Act, 1991, the relevant rules were then, and are now applicable, to all proceedings of the Commission, whether sitting as the Court, or otherwise.

It seems to me, therefore, that his Honour's summary of the principles to be applied is a helpful guide to my conclusions in the instant circumstances of this case.

...

However the issue here is the failure of the applicant to attend the proceedings and offer a proper explanation for her non-attendance. It may well be that the applicant still wishes to pursue her application; but seemingly only at her convenience. As Cross J said in Calvert v Stollznow (unreported, 1 April 1980, Supreme Court Procedure, Vol 2, pp 8528-8545), "Litigation is not a game."

This situation is plainly intolerable and creates an untenable position for the respondent. The respondent does not know when, or if, it has a case to answer. In my estimation, these circumstances equate to a failure of the applicant to pursue her application "with due diligence" in accordance with Rule 146.

Notwithstanding the force of the respondent's submission on 2 April to dismiss the matter at that time, the Commission exercised it's powers under Rule 146(b) to require the applicant, within 14 days, to file an affidavit with accompanying medical certification of the reason for her non-attendance on 2 April. As stated earlier no affidavit was filed and no further contact has been made with the Commission.

In my opinion, the Commission has given the applicant every opportunity to explain her position and pursue her claim. She alone, is responsible for the outcome in this case.

Before finally determining this matter, it is necessary to observe that dismissing an application for want of prosecution is a most serious matter. The Commission's power to do so should be exercised with considerable care and caution. This is implicit in the authorities to which I have earlier referred. See also Teeling v Steingold and Abel, t/as Steingold Abel Lawyers (unreported, McKenna C, Matter No IRC 4226 of 2000, 15 February 2002)

Each case must be decided on its own particular facts and circumstances. However, there will invariably arise a point, in the failure of an applicant to pursue his/her case with due diligence in which the interests of justice, and the efficient and orderly conduct of the Commission's case load, demands that an application be dismissed for want of prosecution.

12 In deciding, regrettably to dismiss the applicant's s84 claim, a number of matters need to be recorded.

13 Firstly, there can be no doubt that the applicant was aware that his case was listed for hearing, commencing on 7 February. He was in court when the dates were set and he agreed to them. Moreover, the date for hearing had already been adjourned because of the applicant's previous default of the Commission's directions.

14 Secondly, every conceivable effort was made to contact the applicant at his last known contact number.

15 Thirdly, even if the applicant's contact details had changed, there was an obligation on him to advise the Registry. No such advice was received.

16 Fourthly, the applicant had not complied with the Commission's directions on two previous occasions. In my view, considerable latitude has been afforded to him in view of his unrepresented status.

17 Fifthly, even when he filed some material on 2 November 2004 it was no more then a compendium of documents and not a statement or affidavit of evidence. He indicated a statement would be filed in due course. To date, no statement has been filed. The state of the applicant's evidence was, therefore less than complete.

18 Sixthly, the applicant's conduct has caused much inconvenience and cost for the respondent. An employer is entitled to know within a reasonable period of time, whether it has a case to answer.

19 In view of the circumstances described above, it would not serve the balance of justice to continue this intolerable situation; not to mention the waste of the Commission's time and resources in seeking to accomodate the applicant's dilatory attitude to these proceedings. I find that the applicant failed to pursue his claim with due diligence and the Commission is left with no option but to deal with it as requested by Mr Reitano.

20 Accordingly, pursuant to rule 146 of the Industrial Relations Commission Rules, Matter No. IRC04/1139 is hereby dismissed for want of prosecution.

21 The proceedings are concluded. The file will be marked accordingly and returned to the Registry.

PETER J SAMS AM

DEPUTY PRESIDENT

LAST UPDATED: 10/02/2005