Elka Simjanovska and Roads and Traffic Authority of New South Wales (No. 5) [2008] NSWIRComm 111 (10 June 2008)

Last Updated: 13 June 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Elka Simjanovska and Roads and Traffic Authority of New South Wales (No. 5) [2008] NSWIRComm 111



FILE NUMBER(S):
IRC4554 of 2005
IRC2762
IRC3138

HEARING DATE(S):
21 April 2008

DATE OF JUDGMENT:
10 June 2008

PARTIES:
APPLICANT (Respondent to Motion)
Elka Simjanovska

RESPONDENT (Applicant on Motion)
Roads and Traffic Authority of New South Wales

CORAM:
Sams DP


CATCHWORDS: Victimisation claims by former employee of the RTA - notice of motion to dismiss claims for want of prosecution - history of proceedings - numerous interlocutory decisions - medical evidence - proceedings before the Full Bench of the Commission - applicant seeks indefinite adjournment of substantive proceedings - claims of being unable to prepare and prosecute proceedings due to ill health - allegations of procedural unfairness - same medical evidence as before the Full Bench - Full Bench considers medical evidence highly qualified and unable to be tested - extent of activities of applicant - other proceedings before Administrative Decisions Tribunal being prepared and prosecuted - unlikely applicant's doctor given complete information - failure to comply with directions - failure to attend proceedings - proper administration of justice - balancing interests of the parties - costs sought by respondent - relevant principles.

Held; current medical evidence insufficient - medical evidence unable to be tested - reliance on earlier medical evidence - adoption of approach of the Full Bench - applicant's bona fides in question - applicant's doctor unlikely to have been told complete information - desirability of concluding proceedings as quickly and cost effectively as possible - allegations of procedural unfairness rejected - balancing of interests of the parties favours respondent - proper administration of justice - applicant failed to prosecute proceedings with due diligence - notice of motion granted - three victimisation applications dismissed for want of prosecution - application for costs listed for directions.


LEGAL REPRESENTATIVES
APPLICANT (Respondent to Motion)
No appearance

RESPONDENT (Applicant on Motion)
Mr D Mahendra
Sparke Helmore Lawyers

CASES CITED:
Crewdson v Department of Ageing Disability & Home Care [2007] NSWIRComm 29
Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 1) [2006] NSWIRComm 405
Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 2) [2007] NSWIRComm 5
Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 3) [2007] NSWIRComm 47
Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 4) [2007] NSWIRComm 51
Elka Simjanovska and Roads and Traffic Authority of New South Wales [2008] NSWIRComm 66
Elka Simjanovska v Roads and Traffic Authority [2007] NSWIRComm 23
Elka Simjanovska v Roads and Traffic Authority of New South Wales (unreported, 13 December 2006, Kavanagh J)
Hakim v Hakcom Investments Pty Ltd & anor [2004] NSWIRComm 405
Koprivnjak and Others v Body Corporate Services (NSW) Pty Limited (1999) 87 IR 49
Lenijamar Pty Ltd v AGC (Advances) Limited [1990] FCA 520; (1990) 27 FCR 388
Mealey v Council of the City of Sydney [2004] NSWIRComm 58; (2004) 132 IR 177
Piriz v AAPT Limited [2005] NSWIRComm 374
Raymond Hoser v Christopher Hartcher [1999] NSWSC 527
Razvan v Berechet [1990] NSWCA 155
Simjanovska v Roads and Traffic Authority of New South Wales (2006) 157 IR 40
Simjanovska v Roads and Traffic Authority of New South Wales [2006] NSWIRComm 1041

LEGISLATION CITED:
Industrial Relations Act 1996; s 210, s 213 and s 181(2)
Industrial Relations Commission Rules; r 146 and r 147


TEXTS CITED:




JUDGMENT:

- 24 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: SAMS DP


10 June, 2008

Matter No IRC05/4554

Elka Simjanovska and Roads and Traffic Authority

Application by Elka Simjanovska for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996

Matter No IRC06/2762

Elka Simjanovska and Roads and Traffic Authority

Application by Elka Simjanovska for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996


Matter No IRC06/3138

Elka Simjanovska and Roads and Traffic Authority

Application by Elka Simjanovska for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996

DECISION ON NOTICE OF MOTION

[2008] NSWIRComm 111

1 The first of these three victimisation applications (IRC 4554 of 2005) was filed on 31 August 2005, by Ms Elka Simjanovska ('the applicant') and was subsequently followed by two further claims of victimisation on 18 July and 15 September 2006; respectively matters IRC 2762 and 3138 of 2006. In all matters the applicant alleges that she was victimised, pursuant to s 210 of the Industrial Relations Act 1996 ('the Act') by her then employer, the Roads and Traffic Authority of New South Wales ('the respondent') and a number of the respondent's managers, and she seeks various forms of relief, pursuant to s 213 of the Act. It is to be observed that it is at least arguable that some of the relief sought by the applicant is not available under s 213 of the Act. I have used the term 'then employer' as it is undisputed that the applicant resigned, in writing, from her employment with the respondent on 11 September 2007.

2 On 11 April 2008, the respondent filed a notice of motion which seeks to have the Commission dismiss all three applications for want of prosecution, pursuant to Rule 146 of the Industrial Relations Commission Rules. For convenience, I shall hereinafter retain the designation of respondent and applicant, although the respondent is the applicant on the motion and the applicant is the respondent to the motion. I shall return to the respondent's grounds and reasons and submissions in support of the motion shortly. There was no appearance by, or on behalf of the applicant when the notice of motion was listed on 21 April 2008. There can be no doubt that the applicant was aware of the hearing of the notice of motion as a letter from her to the Commission, which I will come to later, broadly claimed that she was too ill to attend the proceedings.

3 To understand the context in which this notice of motion has been brought, it will be necessary to give a brief outline of the history of the proceedings. It will not be possible, nor is it necessary, to traverse, in detail, each move and counter move of the parties or detail the huge amount of correspondence between the parties and the Commission, generated primarily by the applicant.

4 At the outset, I would observe that in a period of almost three years, there has been no fewer than seven single member decisions and three appeal decisions of the Commission as to matters properly characterised as of a preliminary or jurisdictional nature. Obviously, the substantive merits of the applicant's claims of victimisation have never been tested, let alone ruled upon by the Commission. Directions for the filing of evidence have been issued and amended on at least six occasions and dates for a hearing, spanning more than a week, have been set and abandoned three times. The Commission's various decisions over this time may be summarised as follows.

5 On 24 March 2006, Connor C dismissed the applicant's first victimisation claim on jurisdictional grounds, finding, inter alia, that the application was filed out of time, pursuant to s 213(3)(4) of the Act: See Simjanovska v Roads and Traffic Authority of New South Wales [2006] NSWIRComm 1041. The applicant appealed the Commissioner's decision and on 16 August 2006, the Full Bench of the Commission granted leave to appeal and upheld the appeal on the basis that the Commissioner's findings on jurisdiction were premature and not properly available on the material before him under s 210(1)(g) of the Act: See Simjanovska v Roads and Traffic Authority of New South Wales (2006) 157 IR 40. The matter was then remitted to me and on 10 October 2006, was joined with the other two applications. Conciliation of the claims ultimately proved unsuccessful.

6 On 10 October and 10 November 2006, the Commission made various rulings on the admission of evidence in the proceedings. The applicant appealed these rulings, and on 13 December, Kavanagh J refused a stay of the substantive proceedings as sought by the applicant (appellant) pending determination of the appeal: See Elka Simjanovska v Roads and Traffic Authority of New South Wales (unreported, 13 December 2006, Kavanagh J).

7 On 15 December 2006, the Commission, as presently constituted, dismissed a notice of motion filed by the applicant which sought to amend the directions previously issued on 30 October 2006, for the hearing and the adjournment of the hearing dates in March 2007: See Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 1) [2006] NSWIRComm 405.

8 The applicant filed her evidence in chief on 10 and 12 January 2007, after obtaining an extension of time from Boland J (as he then was) and the respondent filed its evidence on 15 February 2007.

9 On 30 January 2007, the Commission dismissed a further notice of motion filed by the applicant which sought to set aside summons to produce directed to nine medical practitioners in respect to the medical records of the applicant: See Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 2) [2007] NSWIRComm 5. When the return date for the summons was listed the following day, the Deputy Industrial Registrar granted general access orders to the parties. The applicant appealed the Deputy Industrial Registrar's orders. The appeal was determined by Haylen J on 12 February 2007: See Elka Simjanovska v Roads and Traffic Authority [2007] NSWIRComm 23, wherein his Honour varied the access order by requiring a confidentiality undertaking by the respondent and limiting access to three named solicitors from the firm acting for the respondent.

10 On 6 March 2007, the Commission dismissed a further notice of motion filed by the applicant in which she sought to extend the time for filing her evidence in reply until 15 May 2007; an adjournment of the hearing dates until at least two weeks after 15 May and the admission of new evidence. The applicant claimed she was too ill to prepare for, and participate in the substantive proceedings. The Commission was not satisfied with the state of the medical evidence provided, particularly in light of the fact that the applicant had prepared for, and attended other proceedings in the Commission over the previous few months, as identified in the preceding paragraphs above: See Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 3) [2007] NSWIRComm 47.

11 The hearing was scheduled to commence on 8 March 2007. On that day, the Commission received a detailed medical report from the applicant's doctor, Dr Blagoj Kuzmanovski, indicating the applicant was too ill to participate in the proceedings. Notwithstanding some hesitation, the Commission adjourned the proceedings indefinitely until such time as the Commission received a medical clearance from the applicant's doctor and a written undertaking from her that she was fit and able to conduct her proceedings. The Commission further ordered that no new summons, notices of motion or other initiating process be commenced, by either party, until these requirements were met: See Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 4) [2007] NSWIRComm 51.

12 On 20 March 2008, the Commission revoked the orders of 8 March 2007, on the basis that the Commission was satisfied, from the material filed by the respondent (Exhibit 2), that the applicant was sufficiently capable of prosecuting her case. I directed that she file her evidence in reply by 1 April 2008, and the matter was set for hearing commencing on 21 April 2008. No evidence, in reply, was filed.

13 On 2 April 2008, the Full Bench of the Commission, notwithstanding its orders made on 16 March 2007 to the same effect as my orders referred to above in par 11, and directions that the appellant file reply submissions in respect of the appeal, refused leave to appeal and dismissed the appeal: See Elka Simjanovska and Roads and Traffic Authority of New South Wales [2008] NSWIRComm 66 ('the Full Bench decision'). I shall refer later in some detail to the Full Bench's decision, as it is directly relevant to the decision on this notice of motion.

Case for the respondent

14 The respondent relied on the grounds set out in its notice of motion and the affidavits of Mr Dilan Mahendra, Solicitor for the respondent, and Mr Stephen Doran, Manager Industrial Relations. In its written submissions the respondent summarised its contentions as follows:

(a) The Applicant has failed to prosecute her case with due diligence or at all since 16 March 2007;

(b) the Applicant has failed to comply with the directions of the Commission on 20 March 2007, namely:

(1) the Applicant has failed to file and serve any material in reply to the Respondent's evidence filed on 14 February 2007;

(2) the Applicant has failed to submit any credible medical evidence to explain her failure to comply with his Honour's directions;

(3) the Applicant has refused to attend the hearing listed on 21 to 24, 30 April 2008 and 1 May 2008; and

(4) has failed to provide the necessary medical evidence to justify her non-attendance.

(c) in the circumstances of this case, it would be appropriate for the Commission to order costs against the Applicant.

15 The respondent noted that the applicant had provided a medical certificate seeking an adjournment of the proceedings and which purportedly sought to explain her refusal to participate in the proceedings. The medical certificate relied upon was in the following terms:

This is to confirm that today I have examined Mrs Elka Simjanovska and in my opinion she suffers from a medical condition and would not be able to participate in any litigation and prepare any documentary materials in the legal proceedings from Monday, 14 April 2008 until Friday, 25 April 2008 inclusive.

16 The applicant also relied on the medical reports and associated documents which she had provided on 9 April 2008, and which was the same material she relied on in the appeal proceedings earlier referred to. The respondent submitted that as the Full Bench had not accepted this medical evidence, the Commission, as presently constituted, would do likewise.

17 The respondent noted the applicant was due to file evidence in proceedings initiated by her in the Administrative Decisions Tribunal (ADT) and she had not taken any steps to adjourn those proceedings and had demonstrated an intention to pursue those proceedings.

18 The respondent referred to the principles and relevant authorities the Commission would have regard to when determining an application under Rule 146 of the Commission's Rules: See Lenijamer Pty Ltd v AGC (Advances) Limited [1990] FCA 520; (1990) 27 FCR 388; Koprivnjak and Others v Body Corporate Services (NSW) Pty Limited (1999) 87 IR 49; Hakim v Hakcom Investments Pty Ltd & Anor [2004] NSWIRComm 405; Raymond Hoser v Christopher Hartcher [1999] NSWSC 527 and Crewdson v Department of Ageing Disability & Home Care [2007] NSWIRComm 29. I shall refer to the relevant principles shortly.

19 The respondent submitted that the Commission would have regard to the following factors:

1 The history of the proceedings.

2 The applicant has had the benefit of the respondent's evidence since 15 February 2007.

3 The applicant's activities since 15 February 2007 and failure to make any attempt to reply to the respondent's evidence.

4 The demonstrated ability of the applicant to draft and submit documents.

5 The applicant's willingness to prosecute proceedings before the ADT at the expense of these proceedings.

20 The respondent asserted that it had been disadvantaged in not having outstanding claims against it concluded as quickly and as cost effectively as possible. It submitted that the applicant had failed to diligently prosecute the proceedings, had failed to attend proceedings when directed to do so and had been consistently slow in complying with the Commission's directions. In balancing the interests of the parties, these proceedings should be struck out, particularly considering the fact that the applicant has commenced and prosecuted other proceedings while claiming to be too ill to prosecute these proceedings.

21 The respondent also sought costs pursuant to s 181(2) of the Act. During oral submissions, the Commission indicated to Mr Mahendra that it would be inappropriate to deal with the respondent's costs application as the original notice of motion had not included within it, an application for costs. In the interests of justice, the applicant should be given due notice of such an application, and given an opportunity to respond if she so chooses. Mr Mahendra did not press the costs application at that time.

22 In supplementing the written submissions, Mr Mahendra said the respondent's notice of motion should proceed, notwithstanding the applicant's latest medical certificate. The applicant had not made her doctor available for cross-examination which had also been a requirement of the Full Bench and which she had not acted upon. The respondent had advised the applicant that if further medical evidence was to be relied on, then her doctor would be required for cross-examination.

23 Mr Mahendra said that the person who had signed the most recent correspondence to the Commission was Mr Graham Henderson, her support person. In response to the applicant's request for an adjournment until 2009, Mr Mahendra submitted that it was a 'little rich' for her to say she cannot proceed with these proceedings, but can quite happily proceed with her ADT proceedings.

24 Mr Mahendra noted that in the ADT proceedings, the applicant is required to respond to nine files of material in relation to her claims by 29 April 2008, and despite her doctor's most recent recommendation, she has not sought to vary that timetable or adjourn those proceedings. It was Mr Mahendra's understanding that the ADT proceedings related to Freedom of Information (FOI) requests for documents which this Commission may have previously denied her access to. Mr Mahendra submitted that the applicant may well have misled her doctor into believing she only had eight days to prepare for this case when in truth she has had over a year since the respondent's evidence was filed and served on 15 February 2007. She may have also not informed her doctor of the extent of her other activities.

25 Mr Mahendra submitted that there was no credible evidence before the Commission to explain the applicant's recent activities over the last year or her non-attendance at the notice of motion hearing. Her recent medical certificate should not be accepted. Mr Mahendra referred to the relevant authorities dealing with strike out motions.

26 Mr Mahendra outlined the history of the proceedings up to the last adjournment of the hearing dates on 8 March 2007. (This history is largely reflected in the outline of the Commission's decisions earlier referred to.) Since 8 March 2007, Mr Mahendra said the applicant had submitted or prepared at least 65 documents including:

· a significant amount of correspondence to support the applicant's refusal to attend HealthQuest;

· correspondence to the Premier and the Minister for Roads; and

· correspondence to the respondent's solicitors in both the ADT proceedings and these proceedings.

27 In the ADT proceedings, the applicant served some 27 pages of material and had demonstrated her ability to engage in lengthy correspondence with the respondent's solicitors, within hours of receiving it. She had appeared in the ADT proceedings on three occasions.

28 Mr Mahendra said the continued passage of time will prejudice the respondent in circumstances where the legislature had set a 21 day filing period for any claim of victimisation. It would be unfair to rely on witnesses' memories years after the alleged events giving rise to the claims of victimisation. He said the respondent had been robbed of the opportunity to have these proceedings concluded as quickly and as effectively as possible. It was also the case that the applicant had claimed to have had legal advice. Mr Mahendra submitted that given the approach of the Commission to only adjourn matters in exceptional circumstances, the Commission had been more than generous to the applicant.

29 Mr Mahendra noted that the applicant had been claiming since March 2007, that she was intending to go overseas to obtain medical treatment, yet she has apparently not done so. This would lead to an inference that she will only pick and choose which medical diagnosis she will rely on.

30 Mr Mahendra submitted that it would be in the interest of the administration of justice that these proceedings be brought to a conclusion as soon as possible. The applicant seems to expect this Commission to accept she is well enough to prosecute her proceedings in the ADT, but not well enough to prosecute her proceedings here. Finally, he said the applicant has plainly demonstrated a failure to prosecute these proceedings with due diligence and, in balancing the interests of the parties, the Commission would find in favour of the respondent.

Case for the applicant

31 While the applicant did not appear and was not represented at the hearing of the notice of motion, the Commission was requested by her representative in correspondence dated 18 April 2008, to consider the issues she had raised in earlier correspondence to the Commission dated 1 April, 9 April and 17 April 2008.

32 In particular, the applicant maintained her request, in her 1 April letter, for two orders, which were put in the alternative:

(a) To set aside orders made on 20 March 2008, and reinstate the decision made by Deputy President Sams, in matters No. IRC 4554 of 2005, IRC 2762 of 2006 and IRC 3138 of 2006 on 08 March 2007.

or alternatively

(b) To vary orders made on 20 March 2008, and to reinstate the decision made by Deputy President Sams, in matters on 08 March 2007, on condition that my medical condition and my ability to undertake such extensive proceedings be reviewed by the Commission after 31 December 2008, when I will be in a position to provide more detailed advice about my medical condition after the completion of my surgeries.

33 It is noted that the order sought in (a) is an indefinite adjournment application based on my orders of 8 March 2008 (see par 11). Order (b) would have the practical effect of these proceedings being adjourned for at least two years, and possibly longer, from 8 March last year until some time in 2009.

34 In support of these orders, in a five page closely typed letter, the applicant advanced various claims of procedural unfairness and irregularities, late and/or short notice of listings, misunderstanding of my orders of 20 March 2008, inability to obtain legal advice and a failure to receive information from the Commission about the process. The applicant also claimed that the respondent had acted contrary to decisions made by me and the Full Bench and that she had not been provided an opportunity to offer evidence in reply to the respondent's file of material (Exhibit 2). The applicant also claimed that she had been directed to file a response to more than 2000 pages of material in five working days.

35 Further, she advised that she had recovered from her psychological conditions, but still had other medical conditions for which she would be receiving treatment overseas. She had resigned her employment to assist her recovery and this had been a 'big sacrifice'.

36 The applicant further claimed that the respondent had unlawfully attempted to produce and use her medical reports in order to dismiss these proceedings and prevent the hearing of 'damaging evidence about the RTA'. She said that the respondent was pursuing a claim of her unfitness to work, yet pursued an argument that she was fit to pursue these proceedings. The applicant also contended that Mr Mahendra provided incorrect and misleading information about their conversations and that he should be required to produce an affidavit and be summonsed to be cross-examined.

37 For completeness, I quote from a letter my Associate sent to the applicant on 2 April 2008:

I refer to your correspondence dated 1 April 2008. His Honour has asked me to convey to you the following:

1. It is not appropriate to make the orders you seek on the basis of correspondence sent to the Commission.

2. There was nothing confusing about the directions to attend the Commission on 20 March 2008, which you failed to attend.

3. You were advised that you would not be in breach of his Honour's orders of 8 March 2007 by attending the Commission on 20 March 2008.

4. You have not previously been represented by a solicitor or barrister and until such time as a notice of appearance for same is filed, it must be accepted that you continue to represent yourself.

5. There was no requirement for you to present evidence at the directions hearing in response to the RTA's folder of letters and other material. That material was self evident and as it was largely initiated by you, it is difficult to see what it is you could have rebutted.

6. There have been no irregularities in the process and you were advised of the outcome of the proceedings on 20 March by Facsimile the same day and by letter.

7. There is no requirement for you to file evidence in reply. As you have not done so by 4pm, 1 April 2008, as directed by his Honour, it may be accepted that you do not intend to do so. However, his Honour is reluctantly prepared to extend the time for filing your evidence in reply for another week until 4pm, Wednesday 9 April 2008.

8. You have provided no medical evidence of your alleged condition/s such as to satisfy the Commission that you are incapable of prosecuting your case. The extent of correspondence you have engaged in in recent times and litigation in other places would indicate the contrary is true.

9. You have provided no evidence of your stated intention of seeking medical procedures overseas.

In these circumstances, his Honour is not prepared to make the orders you seek and the matters are to proceed to hearing on 21-24 and 30 April and 1 May.

A failure to attend on the first day of hearing may well result in:

a) The matters proceeding ex parte; or

b) A notice of motion from the respondent that the matters be dismissed for want of prosecution. Should this occur you will be given due notice and an opportunity to respond to the notice.

38 Attached to the 9 April correspondence from the applicant was a recent medical certificate and four page report from Dr Kuzmanovski, and various test results. I do not intend, due to the applicant's understandable concern for her privacy, to detail this material, suffice to quote from the final paragraph of Dr Kuzmanovski's report:

She reported that she has been directed to prepare a response and submissions related to more than 2500 pages of documentary material within approximately 8 working days, and to attend hearings before the Industrial Relations Commission of NSW during this time. I believe that she is not able to participate in such an excessive demand of her participation in that process. I believe that her health could significantly deteriorate under such excessive pressure.

39 As I mentioned earlier, this medical evidence was the same as that before the Full Bench. At this juncture, the Commission notes that the respondent informed the applicant on 9 April 2008, that if she intended to rely on medical evidence, then it should be by way of affidavit with the applicant's doctor being made available for cross-examination at the hearing of the notice of motion. This did not occur.

40 The two letters of 17 and 18 April 2008, both indicate that the applicant was 'sick and unable to attend and participate' in the proceedings.

CONSIDERATION

Relevant Principles

41 This notice of motion is brought pursuant to Rules 146 and 147 of the Industrial Relations Commission Rules which provide as follows:

146 Want of prosecution

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 Effect of dismissal

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.

42 In considering an application to dismiss a matter for want of prosecution, the Commission will adopt the principles which have been developed by the Supreme Court under its Rules on the same subject (strictly speaking the Uniform Civil Procedure Rules 2005): See Koprivnjak and Others v Body Corporate Services; Hakim v Hakcom Investments and Piriz v AAPT Limited [2005] NSWIRComm 374. The Supreme Court Rules (Rule 12.7) relevantly provide as follows:

12.7 (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.

43 The principles here to be considered, and which have been cited with approval by members of this Commission, were discussed in Raymond Hoser v Christopher Hartcher, in which Simpson J said:

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 (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 discretion: Stollznow v Calvert.

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. Calvert v Stollznow, 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, par 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 Priestly 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. Simpson J observed that in her view, this circumstance must be treated with some caution, noting that the weight that can be accorded to that delay is limited.

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.

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.

44 Two additional authorities are, to my mind, positively on all fours with the circumstances faced by the Commission in this case. In Lenijamar Pty Ltd v AGC (Advances) Limited, a majority of the Full Court of the Federal Court said at page 396:

The rules must be administered sensibly and with an appreciation both of the fact that some delays are unavoidable and unpredictable by even the most conscientious parties and their lawyers and of the likely serious consequences to an applicant of staying or dismissing a claim.

But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative factor of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceedings.

45 In Mealey v Council of the City of Sydney [2004] NSWIRComm 58; (2004) 132 IR 177, the Full Bench of this Commission considered Rule 146 and observed:

51 We wish to make two further observations. Rule 146 requires a finding that a party "has not pursued the proceedings with due diligence". In considering any application for want of prosecution it is important to make a proper assessment as to whether the history of the proceedings warrants such a conclusion.

46 Mr Mahendra also referred the Commission to Crewdson v Department of Ageing Disability & Home Care, in which a Full Bench of this Commission said:

16 The matters which the appellant has referred to are indicative of his concern to pursue other proceedings in which he is involved and we assume that to that extent he is distracted from and unable to pursue these proceedings because, he says, of his involvement in these other proceedings. The fact remains, however, that these appeal proceedings have been on foot since November 2003 and whatever other circumstances may confront a litigant it is still necessary in the interest of the administration of justice that proceedings be pursued diligently and brought to a conclusion as soon as possible. Although the respondents, on one view, are instrumentalities of the New South Wales Government and one may perhaps make some allowance in terms of the appellant by reason of this, on the other hand it is necessary for the efficient and effective administration of Government that it be entitled to have outstanding proceedings before a tribunal concluded as quickly and cost effectively as possible.

47 I turn now to the facts and circumstances of this case.

48 It seems to me, that in this matter, the Commission would be persuasively guided to accept the approach adopted by the Full Bench when it considered the same medical reports, as I have before me. Relevantly, the Full Bench said:

17 The Full Bench considered the medical evidence placed before it in support of the adjournment application. The Full Bench carefully perused the medical certificate and reports of Dr Kuzmanovski. In our view, the report was highly qualified and it is impossible for us to test the evidence set out in the report. By way of example, Dr Kuzmanovski said that:

Ms Simjanovska has been cleared from her psychological injuries and she has been allowed to attend work on normal duties, but she has been advised not to have any excessive undertaking. In particular not anything related to her disputes with the RTA.

...(Deleted for privacy reasons.)...It is not recommended that she participates in litigation in which she is self represented.

...

19 Dr Kuzmanovski goes on in his report to observe:

Ms Simjanovska has been advised that she can attend a court planning meetings or write correspondences, however I strongly recommend that she is currently not involved in any litigation where she is self represented, which requires her to undertake a preparation of large documentary materials involving her long term disputes.

She reported that she has been directed to prepare a response and submissions related to more than 2500 pages of documentary material within approximately 8 working days, and to attend hearings before the Industrial Relations Commission of NSW during this time. I believe that she is not able to participate in such an excessive demand of her participation in that process. I believe that her health could significantly deteriorate under such excessive pressure.

20 The Full Bench was dealing with an interlocutory appeal and only whether leave to appeal should be granted. This was made clear to both parties at the directions hearing and subsequently. We expected the leave to appeal hearing to be of short duration and not involve a consideration of 2500 pages of documentary material.

21 Without hearing from Dr Kuzmanovski, we did not know if the appellant had outlined, in a true and proper context, the matters that are before the Full Bench.

22 Given the above circumstances, we rejected the application for an adjournment and proceeded to hear the application for Leave to Appeal.

and at [31] said:

31 It is, therefore, well established that Leave to Appeal will rarely be granted if the discretionary decision appealed against is of a procedural nature. The appellant makes applications to appeal determinations of Sams DP where a number of matters were joined and where Sams DP ordered the striking-out of parts of two Summonses for Production of documents. Such decisions, as we have already observed, are interlocutory involving the exercise of discretion. Without seeking to draw inferences, a consideration of the history of this matter indicates a propensity on behalf of the appellant not to proceed with her matters, at first instance and on appeal. This may result in the appeal never going forward or the substantive matter ever coming to trial.

49 The only additional material provided to me in the present proceedings was the medical certificate of Dr Kuzmanovski dated 14 April 2008 (see par 15), which only refers to the applicant as suffering from a medical condition which prevents her from participating, or preparing for proceedings from 14 to 25 April. In my opinion, this medical certificate advances the matter no further. Again, there is no description of what the medical condition is, or its treatment and raises the same concerns I expressed in Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 3), that the applicant may not have been informing her doctor of the true position. That she has been preparing for, and attending proceedings in the ADT at the same time as she says she is too ill to prepare and attend proceedings in this Commission, must give rise to a serious issue as to the applicant's bona fides. It would be open for me to conclude that the applicant simply decides when, and which proceedings she will give priority to, and offers less than frank excuses for failing to comply with directions given by this Commission. Such an attitude cannot serve the proper administration of justice and must plainly be repudiated. It is a situation not unlike that which was discussed in Crewdson. The fact that the respondent is a large and well resourced Government authority does not give an individual claimant against it, an open and free licence to decide what proceedings he/she will prosecute and when. Apart from the disturbance to the Commission's own efficient case management, to do so would deprive the right of any party to a proceedings to have claims against it determined as quickly and as cost effectively as possible. This proposition is, a fortiori in circumstances where there is a real and demonstrable public interest in ensuring the taxpayer is not put to ongoing and substantial costs in defending litigation which would seem to have very little prospect of ever reaching finality: See par 31 of the Full Bench decision.

50 The Full Bench of the Commission has had the opportunity to review the medical evidence and concluded it was highly qualified and unable to be tested. The Full Bench made orders that the applicant's doctor be available for cross-examination and queried whether the applicant 'had outlined in a true and proper context, the matters that are before the Full Bench'. It would seem that the applicant told her doctor that she had only eight days to respond to 2500 pages of the respondent's material. This was wrong on two counts. Firstly, that was not the material which was before the Full Bench, but rather the appeal concerned rulings at first instance of an interlocutory nature; and secondly, she had had this material for over a year (since 15 February 2007). These same considerations arise in this notice of motion. While the 2500 pages of material are what she is required to reply to, she has had the material for over 13 months and I had given her an additional two weeks, and extended it by a further week, when I last made directions for her reply to be filed. In the context of the usual turnaround of filing and service of material in cases such as this; in light of the already considerable latitude granted to the applicant and the other factors herein described, it is simply untenable to allow the present situation to continue.

51 Three other issues arise from the medical evidence before me.

52 Firstly, I think it highly unlikely that the applicant had informed her doctor of the level of activity she has been engaged in during the past year, including detailed correspondence to the respondent and solicitors for the respondent, letters to Ministers and preparation for, and attendance at ADT proceedings. Mr Mahendra identified at least 65 documents prepared by the applicant between 19 April 2007 and 19 February 2008. I do not see how her alleged inability to respond to 2500 pages of material, sits comfortably with her propensity to prepare long and detailed written material, sometimes within hours of receiving it. I query whether the doctor's assessment of her medical condition would have been different had he been made aware of this activity. Before leaving this point, I would observe that the applicant also criticised the short notice she had received of the notice of motion and of the material relied upon by the respondent in Exhibit 2. She criticised the short time in that she could not consult her legal advisors (about whom I have never been told) and prepare evidence in reply to Exhibit 2. In my view, these criticisms are unwarranted and underscore the applicant's inability or unwillingness to understand what she was required to reply to. Exhibit 2 is no more than a compendium of her own material. There was nothing to reply to. I do not see how it could be said that she needed to reply to it. It was incontrovertible evidence of only one thing - her ability to create at least 65 documents during a period she claimed to be too ill to prepare for, and attend these proceedings.

53 Secondly, the applicant was on notice that any reliance by her on medical reasons for her failure to attend the proceedings on 21 April 2008, would require her doctor being available for cross-examination. Of course, this did not occur and the Commission was left with a highly qualified and probably misinformed report which could not be tested.

54 Thirdly, for some time, the applicant has expressed the view that she no longer has faith in the New South Wales medical system and proposed to undertake further tests and surgery overseas. She has recently reiterated that view to Dr Kuzmanovski as he records at par 7 of his recent report. Up to this point, the applicant has given no indication of when, or where she will be travelling overseas. There is no evidence of any future plans she has to do so. It seems utterly extraordinary to me that if the applicant is as sick as she maintains, and has lost confidence in the New South Wales medical system that she has not attended to these matters well before now, or at the very least, made urgent plans to do so.

55 The applicant has constantly asserted improper and, even corrupt conduct, by the respondent and accused it of denying her the right to expose 'damaging evidence' against it. If these claims are genuinely held beliefs of the applicant then she has a moral and public duty to bring them to the attention of the appropriate authorities and in a timely fashion. To date she has provided no basis for a conclusion that such matters have, or were, grounds for her claims of victimisation by the respondent and ultimately what she says was her forced resignation.

56 For the aforementioned reasons, I am satisfied that the respondent's notice of motion should be granted in the interests of the proper administration of justice and after balancing the respective interests of the parties. In my judgement, such a conclusion is manifestly warranted: See Razvan v Berechet [1990] NSWCA 155. I find pursuant to Rule 146 of the Industrial Relations Commission Rules that the applicant has not pursued these proceedings with due diligence. Accordingly matters IRC 4554 of 2005, IRC 2762 and IRC 3138 of 2006 are dismissed for want of prosecution.

57 The respondent's foreshadowed application for costs is listed for further directions on Monday, 16 June 2008 at 10:00am.

Peter J Sams, AM
Deputy President




LAST UPDATED:
10 June 2008