Australian Postal Corporation v Russell & Anor [2001] QIRC 90 (2001) 167 QGIG 200

200 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 June, 2001 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations (Tribunals) Rules 2000 – rule 42 – failure to comply with directions order Australian Postal Corporation AND Ivan Russell and Raquel Russell (No. B958 of 2000) COMMISSIONER SWAN 15 June 2001 Application to Dismiss Proceedings – Rule 42 Industrial Relations (Tribunals) Rules 2000 – Non-compliance with recommendations from Commission in Conciliation Conference – No formal Directions Orders issued from Commission – Discretion to be exercised by the Commission – General criteria relating to discretion to be exercised by the Commission – Pending outcomes of s. 276 of the Industrial Relations Act 1999 litigation currently before the Commission – Formal Directions Orders issued by Commission – No costs awarded. DECISION By way of background to this matter, B958 of 2000 (the original application) is an application made by Ivan and Raquel Russell for an order from the Commission “amending or declaring void a contract for services entered into on or about 15 September 1995 between ourselves and the Australian Postal Corporation of 206 Queen Street, Brisbane in the State of Queensland, under Part 2 Chapter 3 of the Act”. The current application before the Commission (also numbered B958 of 2000) is an Application to Dismiss Proceedings. Australian Postal Corporation has applied to the Commission for: – “An order to dismiss Application B958 of 2000 pursuant to Rule 42 of the Industrial Relations (Tribunals) Rules 2000 (the Rules). An order that the Respondent pay the Applicant’s costs of, and incidental to, the Application to Dismiss Proceedings. In the alternative to paragraph 1, apply for directions as to the conduct of Application B958 of 2000 in relation to the following matters:– (a) time for filing and service of the Amended Application; (b) future conduct and proceedings; and (c) costs.”. The history of this matter appears to be as follows:– • A conciliation conference was held before the Commission (as currently constituted) on September 27, 2000. • The Commission advised the applicants that they were to file and serve an amended application by October 3, 2000. • Each party was to provide to the other party a list of documents to be relied upon by October 10, 2000. • Each party was to provide copies/inspection of documents listed by the other party by October 17, 2000. As the matter was before the Commission by way of a conciliation conference only, a formal Directions Order was not issued. In this application to dismiss, the applicants (Australian Postal Corporation) state that no amended claim was ever lodged with the Registry of the Commission nor were other informal directions followed, as I understand the submissions. The solicitors for the applicants in this matter sent correspondence to the respondents’ solicitors on October 4, 2000 inquiring about the amended application, but apparently no response was forthcoming. On April 6, 2001, solicitors for the respondents in this matter wrote to the applicant’s solicitors stating, inter alia, that “We are instructed to and hereby give you one month’s notice of our client’s intention to proceed in the above matter” (see Rule 200(1) of the Rules). Within the context of that commentary, since April 6, 2001, no further material has been forwarded by the respondents to the applicant’s solicitors. Counsel for the applicant acknowledges that the wording of Rule 42 of the Rules refers to actions which may occur as a consequence of a Directions Order having been issued by the Commission. In this case, no formal Directions Order did issue for reasons earlier stated. Reference is then made to other provisions within the Rules (e.g. Rule 5 which speaks of the “expeditious disposition of the business of the . . . Commission . . .”); Rule 8 of the Rules; ss. 274 and 331 of the Industrial Relations Act 1999 (the Act). In support of the applicant’s claim, Counsel highlighted the two primary areas of the applicant’s complaint – i.e. the question of delay and the timetable set by the Commission to which there had not been adherence. Counsel referred the Commission to Quinlan v Rothwell & Anor [2001] QCA 176 at paragraph 24 wherein Thomas JA stated, on the issue of non-compliance with Court rules or directions:– “There is a distinction between the setting aside of a proceeding for a specific non-compliance and a dismissal for want of prosecution. The dismissal of an action or proceeding because of non-compliance with a rule or a court direction has long been authorised by particular rules of court, as has the power to set aside proceedings, such as that recognised in the former Order 93 Rule 17. The powers of dismissal for abuse of process and for want of prosecution have generally been regarded as recognition of a wider inherent power. In an appropriate case a guillotine order might be made with the objective of providing a recalcitrant party with added incentive to comply with directions, although some restraint was thought desirable in the peremptory making of such an order when a party might be in difficulty in performing within the prescribed time, or when the issues were not clear cut. Repeated non-compliance with the rules or directions thereunder was sometimes regarded as evidence of ‘contumelious disregard’ of the rules and therefore as relevant to the exercise of a court’s discretion to dismiss for want of prosecution or to excuse delay.”. Counsel for the applicant stated that, were the Commission to find against his client on the points raised initially, then the Commission should issue a “guillotine order” to the effect that “if the amended application is not delivered within a certain amount of time then the application is dismissed without any further application having to be brought by my client”. -- 1 of 3 -- 29 June, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 201 In defence of the claim, and with some attempt to explain the delay in progressing the claim, Counsel for the respondent stated that the primary reason for his client’s delay was that, during the time period in question, a number of Section 276 (of the Act) applications were before the Commission and his clients were awaiting some guidance from the Commission on matters not dissimilar to those raised by themselves. Further, in terms of the wider use of powers suggested by Counsel for the applicant, the respondents’ Counsel cited a decision of Chief Industrial Commissioner Hall (as he then was) in Graham Allen Jones v Hilton International Brisbane B457 of 1993, QGIG 25 August 1995 at p. 1256 wherein Chief Commissioner Hall stated:– “It is contended by Mr Jones for the Respondent that the Commission has an inherent power to terminate or stay proceedings for want of prosecution. I do not think that that will do. Whilst the Commission is declared by s. 18(2) of the Industrial Relations Act 1990 to be a court of record, the Industrial Relations Commission is in truth a statutory tribunal. The balance of authority is that such a tribunal has no inherent power and the authority for its acts must be found in the legislation by which it is established: see Levoune v. Bacoulis [1935] AR (NSW) 126, Palmer v. Clarke (1989) 19 NSWLR 158, Consolidated Press Holdings Limited v. Wheeler (1992) 84 NTR 42. It must at the same time be acknowledged that the grant of a power to a tribunal by statute carries with it, by implication, the power to do that which is incidental to the exercise of that power, see NCSC v. Banker’s Trust Australia Limited (1989) 91 ALR 321. Whether to assert here an implied power to terminate or stay would go beyond the incidental powers which may probably be implied, as to which see R. v. Grassby (1989) 168 CLR 1, is to my mind an interesting question which it is not necessary to decide. Section 90(1)(b) of the current Act is in the same terms as s. 68 (1)(d) of the Act in the form which it took in 1993. The provision vests an express power to dismiss a cause, or to refrain from hearing, or to refrain from further hearing or from determining a cause, if it appears to the Commission, inter alia, that in the public interest further proceedings are not desirable. In terms the provision confers power to the step which I am now asked to take. Having regard to s. 32(8) of the current Act and s. 30(8) of the Act in its 1993 form, I can think of no reason why the provision should be read down.”. It is clear from the various provisions of the Act and the Rules, that the Commission has a discretion to effect the outcomes sought by the applicant in this matter (e.g. see ss. 274 and 331 of the Act and rule 42 of the Rules). In this matter, it is a question of whether that discretion should be exercised rather than a question of whether there is any mandatory requirement which demands a particular outcome. In the aforementioned case (Graham Allen Jones v Hilton International Brisbane), Chief Commissioner Hall further stated:– “It would clearly be inappropriate on a novel application such as this to attempt exhaustively to state the principles to be applied when a respondent seeks an order that proceedings on an application be terminated or stayed. Doubtless they are to be modelled on the principles applied by this Commission in determining applications for extension of time and the principles applied by the Supreme Court. It seems tolerably clear that in the circumstances of this case the important factors are:– (1) the length of the delay, (2) the explanation for the delay, (3) the prejudice to the applicant if the proceedings are terminated or stayed, (4) the prejudice to the respondent if the proceedings are permitted to continue, (5) the conduct of the respondent, and (6) general considerations of public interest.”. The facts of the case show that the respondents’ representatives have been tardy in their progression of this matter. Even though I acknowledge that the respondents were awaiting the outcome of other like cases before the Commission prior to choosing a particular course of action, their failure to advise the applicants in this matter is rather odd. While the submissions of the applicants to have the matter struck out is not without merit, on balance, I would favour granting the alternative proposition posed by the applicants in this matter. Applying the general criteria aforementioned in Graham Allen Jones v Hilton International Brisbane to this matter, the length and explanation for the delay have been addressed. I have made comment upon the conduct of the respondents in this case, but it might also be said that, save for its general request of 4 October 2000 (and acknowledging that the applicant in the primary matter had carriage of those proceedings), the applicants in this case also have not sought to pursue any finalisation of the matter. In light of recent litigation around s. 276 matters generally before the Commission, it is reasonable to assume that a prospective litigant may wish to study the outcomes of such cases before embarking upon a similar course of action. My earlier criticism related to the respondents’ failure to inform the other side of this situation. In these circumstances, the respondents may, from my perspective, be prejudiced were this matter not to proceed. There is some degree of prejudice as well to the applicants, but the nature and size of the business in question would arguably see it as being less prejudiced than the respondents might be were the matter to proceed to hearing. I accept that it is in the public interest for matters to be heard expeditiously (as earlier referred to), however, in these circumstances, given the recently referred to litigation around questions of this type before the Commission, I do not see the public interest as being so affected as to warrant the granting of the relief sought. On balance, considering this criteria, I would propose refusing the primary part of the application as sought. It bears reiteration that there have never been any formal Directions Order issued as a consequence of the history of this claim. Save for a short overlap of time, there have been no breaches of any Orders of the Commission by the respondents. Under different circumstances (and had a formal Directions Order of the Commission issued), then the outcome of this matter may have been different. I propose to issue specific directions to which the respondents must comply. The respondents (in this matter) are to lodge their amended Application with the Registry of the Commission no later than one week from the date of release of this decision. That amended Application should also be served upon the applicants within the same timeframe. The respondents should then list the matter for the next scheduled Call-Over before the Commission. At that stage further Directions Orders should issue from that Call-Over. Any failure on the respondents’ part to comply with these initial directions should be communicated in writing to the Commission at which time the Commission would determine the issue. As a consequence of this decision, I do not propose to award costs as raised by the applicants in this matter. -- 2 of 3 -- 202 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 June, 2001 Order accordingly. D.A. SWAN, Commissioner. Released: 15 June 2001 Appearances:– Mr K.F. Watson (instructed by Ms K. Clarke of Clarke and Kann) for the respondent in original matter B958/00 and the applicant in subsequent hearing on B958/00. Mr J. Shepley (instructed by Ms S. McCartney of Primrose, Couper, Cronin and Rudkin) for the applicant in original matter B958/00 and respondent in subsequent hearing on B958/00. -- 3 of 3 --