Full decision: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc6009.htm

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Introduction

I have published the weird and wonderful, and I’m not sure what category this falls under. Not oinly had this application survived an “out-of-time” application but continued to be prosecuted by the applicant.

During the course of proceeding the applicant was arrested and remanded by police on 6 May 2019. Bail was refused. While it was initially expected that the Applicant might be released following a trial in late August or early September 2019, the Applicant was convicted of numerous offences on 29 July 2019, and imprisoned for a term of 28 months, with a non-parole period of 15 months (making the Applicant eligible for release (on parole) on or about 13 August 2020).

It is also understood that further charges are also pending against the Applicant and if convicted on those charges, the Applicant will likely be subject to a further period of imprisonment beyond his parole and/or final release date. In view of the foregoing, the Respondent made an application to have the proceedings dismissed.

The applicant was represented by someone who was neither a paid agent nor lawyer. His honour allowed the respondent to be represented by a solicitor because of the “…due to the novel, serious and complex nature of the issues to be argued and the finality of the relief sought (if granted)”.

Whilst dismissing the application, the following was considered:

  • The Applicant was employed by Respondent as its Head of Service Delivery. That employment relationship came to an end on 3 January 2019 by way of dismissal.
  • The Applicant claiming that he was dismissed on the basis of false and/or fraudulent allegations made against him by the Respondent.
  • Conversely, the respondent stated that it dismissed the applicant for serious misconduct, involving fraud.

At some point the applicant’s father wrote to the FWC advising:

  • From 6 May 2019, the Applicant had been remanded into custody by police on charges relating to breaches by the Applicant of an Apprehended Violence Order. The Applicant had been refused bail and was to remain at [in jail] until his criminal charges were to be heard at the Local Court; and
  • The Applicant was under “extreme mental distress”, had an undisclosed psychiatric illness, was without his prescribed medication, and was not in receipt of care from his treating psychologist or psychiatrist. Further, the Applicant’s Father was “in the process of arranging with [the Applicant’s] solicitor for a Power of Attorney to be put in place to be able to start actioning pressing matters on [the Applicant’s] behalf”.
  • It was therefore requested that the matter be stood over until early September 2019, in anticipation of the Applicant’s release from prison.

The Commission, in its infinite wisdom, allowed for the delay. Not surprisingly, the respondent was not happy and advised the Commission that it was “disappointed”.

The matter was then enlivened by the respondent’s representative with the news of the extended incarceration, stating that the matter ought to be dismissed. The applicant’s father persisted in requesting that the matter be held over until his son’s release from prison.

The commission cited; procedural fairness does not mandate a matter be held over indefinitely. There must be some limit. In Allesch v Maunz, Kirby J said:

“It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made.

“… it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require”.

Similarly, the Full Bench of the Commission has said:

“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative”.

The power to dismiss an application for want of prosecution is a circumstance that falls squarely within the breadth contemplated by s.587. In Chand v State Rail Authority of NSW (Chand), considering a predecessor provision to that at hand, Lawler VP, McCarthy DP and Redmond C neatly summarised the circumstances and principles that govern dismissing a matter for want of prosecution:

“It is not usual to deal with the failure of a party to appear at the time a matter is listed for hearing by summary disposal for want of prosecution. Rather, the usual course when an adjournment application is refused in such circumstances is to proceed with the hearing. If no evidence is called, the application may be dismissed substantively because the applicant has not discharged his or her obligation to establish a case …

The classic circumstances that enliven a court’s discretion to dismiss an action for want of prosecution are a failure, typically a repeated failure, by a plaintiff to comply with directions of the court or a prolonged period of inactivity on the part of a plaintiff.

The commission then cited a number of cases along the same theme, concluding with:

The ultimate the issue is what is required by the interests of justice in the circumstances of the particular case. In Sali v SPC Ltd Brennan, Deane and McHugh JJ noted that:

“It is true that it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case such as the present where the practical effect of the refusal is to terminate the proceedings.”

Citations by the truck load were then examined by the Commission to justify dismissing this application.

Commentary

Psychiatric illness or not, the applicant was dismissed for dishonesty, and this ultimately will not be tested. However, the applicant’s dad (naturally being in support of his son) wished the employer to have an unfair dismissal application stayed for years and ultimately this is not practical. Why the Commission felt the need to justify its decision with citation after citation beggars belief.

In any event, the right decision was made, and proves that this is just another matter that takes up too much money, time and energy that could be used in the efficient running of a business.