Cairns and District Regional Housing Corporation Limited v AhKee [2005] QIRC 47 (2005) 179 QGIG 3

[Extract from Queensland Government Industrial Gazette, dated 6 May, 2005, Vol. 179, No.1, pages 3-4] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 331 – application to dismiss or strike out Cairns and District Regional Housing Corporation Limited AND Gavin AhKee (No. B423 of 2005) VICE PRESIDENT LINNANE 21 April 2005 Application to strike out unfair dismissal application – Respondent continually failed to comply with directions orders issued for the conduct of his unfair dismissal application – Application granted – Industrial Relations Act 1999 s. 331(b)(ii) and Industrial Relations (Tribunals) Rules 2000 s. 42(2). DECISION [1] At the hearing of this matter on 23 March 2005 I indicated that I would strike out matter B990 of 2004, except for various costs applications that need to be considered, and deliver my reasons for so doing at a later time. These are those reasons. [2] This is an application by Cairns and District Regional Housing Corporation Limited (Applicant) pursuant to s. 331 of the Industrial Relations Act 1999 and s. 42(2) of the Industrial Relations (Tribunals) Rules 2000 to have an application for reinstatement by Gavin Michael AhKee (Respondent) dismissed (B990 of 2004). The basis of the application is the continuous non-compliance of the Respondent with various directions given for the conduct of B990 of 2004 by both myself and Commissioner Blades. [3] At a Callover on 21 January 2005 I issued directions which were forwarded to the Respondent on that date. That Further Directions Order required the Respondent in this proceeding to supply to the Applicant a list of documents in his possession or under his control relevant to a matter in issue in the proceedings by 4.00 p.m. on 31 January 2005. Copies of the documents were then to be supplied to the Applicant by 4 February 2005. The witness statements of the Respondent (in this matter) were to be filed and supplied to the Applicant by 18 February 2005. [4] On the failure of the Respondent to comply with these directions a telephone hearing was conducted by Commissioner Blades on 24 February 2005. At that hearing the Respondent advised Commissioner Blades that he had “just been too busy through work” to attend to the matter. At the time Commissioner Blades warned the Respondent that he ran the risk of a costs order if costs were incurred by the Applicant resulting from the Respondent’s failure to comply with directions. Commissioner Blades did however extend the time for compliance with the directions so that the list of documents of the Respondent was to be supplied by 1 March 2005, copies of the documents provided by 4 March 2005 and the Respondent’s witness statements filed by 1 March 2005. [5] Commissioner Blades asked the Respondent whether he was able to have his witness statements filed by 1 March 2005 and the Respondent’s response was “yeah, I will make a concerted effort or I will endeavour to as much as possible”. A Further Directions Order was then issued to the Respondent on 24 February 2005 detailing the new timetable. [6] On 1 March 2005 the Applicant corresponded with the Industry Registry advising that no list of documents had been supplied. Communications were had between Registry staff and the Respondent. [7] A further telephone mention of the matter was held on 3 March 2005. At this time the Respondent was legally represented. The Respondent’s Solicitor advised the Commission that he had only been engaged on 2 March 2005 and had met with the Respondent on the previous evening wherein a statement had been prepared and the Respondent was to have faxed it to the Industrial Registry that evening. The Applicant also advised the Commission that it had not received any statement from the Respondent. A search of the Registry revealed a facsimile had been received late on the evening of 2 March 2005 but all that was received were three blank pages. The Registry had left a message on the Respondent’s Solicitor’s voice mail to the effect that the Registry had received three blank pages. [8] The matter was then adjourned to enable the Respondent’s Solicitor to fax that statement to the Registry and to the Applicant’s Solicitor. The statement which the Respondent’s Solicitor retained was an unsigned copy of the Respondent’s statement. As a result of the mention the Further Directions Order was amended to provide the Applicant with more time to provide its witness statements. In the course of the hearing the Respondent’s Solicitor did undertake to file and serve a signed copy of the Respondent’s witness statement and a further statement on mitigation of loss detailing the Respondent’s attempts to obtain employment following dismissal and any correspondence detailing the contractual arrangements between he and his new employer. There were no details on mitigation of loss contained in the statement faxed to the Registry. This was to be done by 7 March 2005. -- 1 of 3 -- 2 [9] Failure to comply with this direction resulted in a further telephone mention of the matter on 16 March 2005. On 15 March 2005 the Respondent’s Solicitor advised the Industrial Registry that he was no longer instructed in the matter. In the mention on 16 March 2005 the Respondent gave as his reason for non-compliance – “[j]ust work – work commitments – wholly and solely due to work commitments”. Once again the Respondent was advised of the probability of an application to have the matter dismissed given his failure to comply with directions issued. As a result of this mention the Respondent was directed to provide to the Applicant all documentation concerning his current employment and his attempts to obtain employment following his dismissal, a statement on mitigation of loss and a signed copy of his original statement. He was directed to provide these by close of business on 16 March 2005. The Respondent indicated that he would comply with this direction. [10] Once again the Respondent was warned that if he failed “on this occasion to comply with these directions … there’s very reasonable prospects of the matter being struck out”. Once again there was non-compliance with the directions order and the matter was again listed for telephone mention on 18 March 2005. The Respondent was aware of the telephone hearing and when contacted by Reach Conferencing, the provider of telephone connecting services, his response was that he was too busy to attend the hearing. [12] In the meantime the Applicant had forwarded to the Industrial Registry this current application. The hearing dates of 22, 23 and 24 March 2005 in Cairns for the substantive matter (B990 of 2004) were vacated and the date of 23 March 2005 was set as a date for the telephone hearing of the strike out application. [13] The Industrial Registry served by express post, a copy of this application together with the Directions Order which indicated that a telephone hearing of the application was listed for 23 March 2005, on the Respondent. This of course was a day when the original hearing of B990 of 2004 was scheduled to be heard. [14] On 21 March 2005 the Respondent was telephoned and advised that the application to strike out and the Directions Order was forwarded to him by express post on 18 March 2005. He was further advised of the hearing date and time and his home telephone number on which he would be available for the hearing was confirmed. [15] When Reach Conferencing sought to connect the Respondent for the telephone hearing on 23 March 2005 the Respondent was not available on his home telephone nor was he available on his mobile telephone. The Respondent was then telephoned at work, the number which had been used previously for mentions of the matter, however that telephone number rang out. [16] I am satisfied that the Respondent was aware of the time and date of the hearing and the purpose of the hearing. [17] The Applicant relies upon the history of non-compliance by the Respondent with the various directions orders issued by the Commission. There has been no good reason advanced by the Respondent for that non- compliance. The history of continuous non-compliance is outlined above. The Respondent was warned as to the potential and probable consequence of his failure to comply with the directions. The Respondent chose to ignore these warnings. The circumstances of this matter fall within the two situations said to be “obvious candidates for the exercise” of a similar power to that found in s. 42 of the Industrial Relations (Tribunals) Rules 2000, referred to by Wilcox and Gummow JJ in a decision of the Full Court of the Federal Court in Lenijamar Pty Ltd v. AGC Ltd (1990) 27 FCR 388 i.e. “cases in which history of non compliance by an Applicant is such as to indicate an inability or unwillingness to cooperate 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.”. [18] The Applicant in this proceeding (the Respondent in B990 of 2004) has been put to considerable expense because of the failure of the Respondent to comply with directions of this Commission. Further the Respondent has failed to even attend via a telephone mention of B990 of 2004, and the hearing of this application without any excuse for his non-attendance being given. [19] In all the circumstances I am prepared to exercise my discretion and dismiss the proceedings in B990 of 2004. Order accordingly. D.M. LINNANE, Vice President. Hearing Details: 2005 23 March Appearances: Mr C. Ryall of Counsel, instructed by Bottoms English for the Applicant. Released: 21 April 2005 -- 2 of 3 -- 3 Government Printer, Queensland The State of Queensland 2005. -- 3 of 3 --