Cape York Land Council Aboriginal Corporation v Gersten [2004] QIRC 66 (2004) 175 QGIG 1244

1244 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 April, 2004 ######################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 274 – application for orders Cape York Land Council Aboriginal Corporation AND Joseph M. Gersten (No. B382 of 2004) COMMISSIONER FISHER 2 April 2004 Application for Interim Orders in B2041 of 2003 – Unfair contract application – Failure to comply with Directions Order – Industrial Relations (Tribunals) Rules 2000 s. 42(2) – Application may be dismissed for non-compliance – Opportunity for parties to supply written submissions – Case law – Reasons for non-compliance – Urgent work commitments – Original applicant legally qualified and legally represented – Dismissal of an application excessive penalty for non-compliance – Discretion to dismiss B2041 of 2003 not exercised – New hearing dates to be listed – Further Directions Order to issue – Further failure to comply will result in dismissal of the application. DECISION On 18 March 2004 the Commission had listed for hearing Case No. B382 of 2004, an application for Interim Orders in Case No. B2041 of 2003. The latter case is an unfair contract application filed by Joseph Gersten against the Cape York Land Council Aboriginal Corporation (CYLCAC). At the commencement of those proceedings the Commission informed the parties that Mr Gersten had failed to comply with the Directions Order issued in respect of Case No. B2041 of 2003. The following information was provided to the parties together with an invitation to place submissions before the Commission about whether Mr Gersten’s application in Case No. B2041 of 2003 ought to be dismissed pursuant to s. 42(2)(a) of the Industrial Relations (Tribunals) Rules 2000 (the Rules). “A Directions Order in relation to this matter was dated 13th January 2004 and issued to the parties. It provided directions for a number of things including the exchange of witness statements. It indicated on that Directions Order that if the applicant does not comply the matter may be dismissed under the provisions of rule 42(2)(a). A further Directions Order was dated 3 rd of February 2004 as a consequence of some earlier proceedings and repeated the statement that I’ve just referred to concerning non-compliance. Those directions required that the applicant’s statements to be filed by 4 p.m. on Friday 5 th of March 2004. On 9 th of March 2004 the Registry received a faxed application which is now B382 of 2004 from Miller Harris Lawyers. Included in the material attached to the application was a letter from Carter Newell to Miller Harris Lawyers dated 5 th of March 2004 advising that: ‘Due to urgent work commitments of our client there has been some difficulty in the finalisation of his witness statements and we hope to have these filed and to you by Wednesday 10th of March 2004.’. Unfortunately a copy of that letter was not provided to the Commission. As I said, we came across it by chance as part of the faxed application to the Registry. I had my Associate contact Carter Newell in relation to the listing of the matter and in the course of that conversation she queried that letter and certainly indicated that such correspondence should have been forwarded to the Commission and as I understand it the Carter Newell solicitor undertook to do so. I should add that my Associate advised that if there was an agreement between the parties to extend the time for filing of witness statements to that date then that would be acceptable. When the statements were still not filed on 10th of March my Associate contacted Carter Newell to find out when they would be filed and at that point she was advised that the statements were unlikely to be filed in time for a proceedings to – for the matter to proceed on the dates listed, and it would seem that that conversation prompted the letter of 15th of March and at least this time a copy was forwarded to the Commission. I note that one of the reasons given for the delay in the filing of witness statements is the urgent work commitments of Mr Gersten. Although I have no reason to doubt that, it is the case that the primary application before the Commission is made by Mr Gersten. -- 1 of 3 -- 16 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1245 One has to wonder about an applicant who is so busy that they can’t finalise their own witness statements for proceedings that they have themselves instituted. Moreover, I understand that Mr Gersten is a solicitor and barrister and ought to be aware of the importance of compliance with directions orders. Of course, there’s also the added inconvenience that’s been caused to both the Commission and other clients of that Commission in the event that the four days of hearing that have been allocated are vacated at relatively short notice. A Directions Order does not provide a guide but contains strict time frames that must be met unless otherwise authorised by the Commission. The Commission has not otherwise authorised a delay in filing of the witness statements, at least to the time lines now indicated by Carter Newell. Given the very clear directions that were issued, both on 13th of January and 3 rd of February, together with the statement of non-compliance, which were also repeated in the covering letter from the Deputy Industrial Registrar dated 3rd of February 2004, I’m inviting submissions about whether the application by Mr Gersten should be dismissed under the provision of rule 42(2)(a).”. (pp 2 – 3 of transcript).”. In view of the serious consequences of a dismissal of an application under the said rule, Mr Watson, appearing for Mr Gersten, requested the opportunity to put written submissions on the matter. The Commission agreed to this request albeit with shorter time frames than he initially proposed. CYLCAC was also given time in which to provide written submissions. Those submissions, and an affidavit from Mr Gersten, have now been received and duly considered. Section 42 of the Rules sets out the actions the Commission may take when a person notified of directions fails to comply with the Directions Order. Section 42(2) of the Rules provides that in those circumstances the Commission may dismiss the proceedings, give the further directions the Commission considers appropriate or make an order dealing with the proceedings the Commission considers appropriate. In his written submissions Mr Watson acknowledged that the Commission has an unfettered discretion pursuant to s. 42 (2) of the Rules to dismiss these proceedings for non-compliance with the Directions Order but said that guidance as to the proper approach to the matter may be taken from a decision of a Full Court of the Federal Court in Lenijamar Pty Ltd v AGC Ltd (1990) 27 FCR 388 where Wilcox and Gummow JJ dealt with a similar rule in the Federal Court Rules. A lengthy passage of the joint judgement was included, part of which commented that it was undesirable to make any exhaustive statement of the circumstances under which the power to dismiss proceedings granted by the rule will be appropriately exercised. However, Wilcox and Gummow JJ went on to say: “But two situations are obvious candidates for the exercise of the power: 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.”. Mr Watson’s submissions then pointed out that Mr Gersten had complied with all directions to supply an amended application and a list of further documents as well as an outline of submissions in appeal proceedings. In those circumstances Mr Watson submitted that: “Given the history of the matter, it could not be in any way suggested that the Applicant is indicating an inability or unwillingness to cooperate with the Commission and the Respondent in having the matter ready for trial within an acceptable period. Nor can it be said that there has been a cumulative non compliance such as contemplated by the Full Court of the Federal Court in the Lenijamar decision.”. The submissions of CYLCAC proposed that in considering the failure of a party to comply with directions, three issues arise viz.: (a) what has been done by way of compliance; (b) what is the reason for non-compliance; (c) what steps have been taken to seek the concurrence of the Commission with respect to means of ameliorating the consequences of non- compliance. In addressing these matters CYLCAC noted that the correspondence from Mr Gersten’s Solicitors, Carter Newell, to Miller Harris did not provide an explanation of what had been done to comply with the directions to provide witness statements by certain dates. The only advice offered was that “urgent work commitments of our client have prevented their finalisation”. CYLCAC submitted that the Commission ought to draw the conclusion that the absence of explanation for non-compliance is indicative of little or no attempt having been made by the applicant to comply. In his affidavit Mr Gersten said that he appeared in a quite lengthy and complex matter that concluded in the Supreme Court of Queensland on 1 March 2004 and that he assisted in the preparation of final submissions in a High Court Special Leave Application in which he was a party. That matter was heard on 12 March 2004. CYLCAC said the above excuse for non-compliance lacked candour. There was no explanation of why involvement in these matters entirely precluded Mr Gersten from making reasonable endeavours to complete his obligations. CYLCAC submitted that no steps had been taken by Mr Gersten to secure the concurrence of the Commission to ameliorate the consequences of non- compliance and, as the Commission had noted in its remarks of 18 March 2004, the Commission had only become aware of default by chance. CYLCAC submitted that although dismissal of an application is severe, it ought to be the step taken in light of the manner Mr Gersten has conducted his case and the shallow excuse for non-compliance. Conclusions What has been disturbing about the failure of Mr Gersten to comply with the Directions Order to provide witness statements by the nominated date is a seeming belief that the Commission would condone that behaviour. That belief seems to have been held despite a failure to inform the Commission of the inability to comply on not one but two occasions and despite the very clear instructions about the consequences of non-compliance stated on the Directions Orders. Added to this is the fact that Mr Gersten is legally qualified and was being legally represented. His situation stands in stark contrast to self-represented, non-legally qualified litigants who are not experienced in legal proceedings and who may not understand the importance of complying with Directions Orders and the severe consequences of non-compliance. I accept that the two particular situations identified by Wilcox and Gummow JJ in the Lenijamar case have not arisen in this particular matter. Mr Gersten’s non-compliance is in respect of the direction regarding the supply of witness statements only. However, the abovementioned decision notes -- 2 of 3 -- 1246 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 April, 2004 that those two situations are obvious candidates where applications might be dismissed and it is impossible to foresee all the circumstances under which the rule might be sought to be used. In my view the circumstances involved in this matter are ones that properly give rise to a consideration of the exercise of discretion under s. 42(2)(a) of the Rules. In my remarks of 18 March 2004 I acknowledged that Mr Gersten may well have been busy and his affidavit confirms that he has been involved in recent litigation. The difficulty with the argument about limited time to prepare given his necessity to earn a living, is that there were a few clear weeks after the original Directions Order was issued before Mr Gersten accepted the brief for the Supreme Court proceedings. This time appears to have been available for the preparation of his statements. In my view there has been little of substance put forward by Mr Gersten that persuades me that his application should remain on foot. A Directions Order is not issued as a guide or for parties to elect whether or not they might comply at their convenience. They exist to ensure the orderly and timely conduct of litigation. The only argument offered that I believe is worthy of consideration is that dismissal of the application is an excessive penalty for not complying with the direction to provide witness statements within the defined time frame particularly when it is contended that there are serious allegations raised in Mr Gersten’s application that deserve to be litigated. CYLCAC did not make submissions in response to this point or generally on the merits of the case. Mr Watson noted in his response submissions that CYLCAC did not refer to any prejudice that it has suffered as consequence of Mr Gersten’s non-compliance. However, given that it was the Commission that raised concerns about the non-compliance it would not necessarily be expected that prejudice would be an issue addressed by CYLCAC. Dismissal of an application is the ultimate sanction for it precludes an applicant from being able to have their claims and the responses to those claims independently heard and determined. I acknowledge that serious allegations have been raised in Mr Gersten’s application, which although not accepted by CYLCAC as shown by its response, should be allowed to be tested. It is premature to reach any view about the merit of the case in circumstances where witness statements have not yet been supplied. For these reasons alone, I have decided not to exercise my discretion under s. 42(2)(a) of the Rules to dismiss Case No. B2041 of 2003. My Associate will contact the parties’ representatives to schedule a date for hearing Case No. B382 of 2004 and to find mutually convenient dates for the hearing of Case No. B2041 of 2003. A further Directions Order will also be issued in respect of the supply of witness statements and evidence. In light of the issues that led to the present proceedings I have decided to exercise my discretion under s. 42(2)(b) of the Rules and order that any further failure to comply with the Directions Order by the applicant, without compelling reasons, will result in the application being dismissed. Order accordingly. G K FISHER, Commissioner. Hearing Details: 2004 18 March Appearances: Mr G. Martin S.C. (instructed by Miller Harris) on behalf of Cape York Land Council Aboriginal Corporation. Mr K.F. Watson (instructed by Carter Newell) and with him, Mr J. Gersten, applicant. -- 3 of 3 --