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Ayling v State of Queensland (Cairns and Hinterland Hospital and Health Service)

 

[2020] QIRC 50

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

 

Ayling v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2020] QIRC 50

PARTIES: 

 

Ayling, Alison

Applicant

v

State of Queensland (Cairns and Hinterland Hospital and Health Service)

Respondent

CASE NO:

D/2019/104

PROCEEDING:

 

Industrial Dispute - Application by the Respondent to dismiss the dispute under Rule 45

DELIVERED ON:

3 April 2020

HEARING DATES:

Submissions 23 March 2020, 30 March 2020 and 2 April 2020

MEMBER:

HEARD AT:

McLennan IC

Brisbane

ORDERS:

 

  1. That the Respondent’s Application in Existing Proceedings (filed on 23 March 2020) is dismissed.
  1. That each Party bear their own costs in this Application.

CATCHWORDS:

INDUSTRIAL DISPUTE – where Applicant has been directed to provide materials – where Applicant has delayed in providing information – where application of rule 45 – application to dismiss the dispute is dismissed.

LEGISLATION:

CASES:

Industrial Relations (Tribunals) Rules 2011 (Qld) r 6, r 45

Cady v Capital SMART Repairs Australia Pty Ltd & Anor [2019] QIRC 144

Cooper v Hopgood & Ganim [1998] QCA 114

House v R (1936) 55 CLR 499

Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200

Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73

Quinlan v Rothwell & Anor [2001] QCA 176

Seymour v Workers' Compensation Regulator [2017] QIRC 061

Witten v. Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405

Workers' Compensation Regulator v Varga [2019] QIRC 028

APPEARANCES:

Ms E. Bassingthwaighte of Hall Payne Lawyers for the Applicant.

Mr M. Peters with Ms E. Carlile for the Respondent.

Reasons for Decision

(Delivered ex tempore)

  1. [1]
    The Cairns and Hinterland Hospital and Health Service (CHHHS) (the Respondent) have filed an Application in Existing Proceedings to dismiss the Notice of Industrial Dispute (the dispute) filed by Ms Alison Ayling (the Applicant).
  1. [2]
    For the purposes of this Decision, the ‘Applicant’ is taken to be the Applicant in the substantive matter (Ms Alison Ayling) and the ‘Respondent’ is taken to be the Respondent in the substantive matter (CHHHS).

Why does the CHHHS say Ms Ayling’s dispute should be dismissed?

  1. [3]
    This matter was first mentioned on 29 November 2019 and a Further Directions Order subsequently issued on 2 December 2019.
  1. [4]
    The CHHHS submits that the Applicant failed to comply with those Directions.
  1. [5]
    The CHHHS submits that the Applicant did not file in the Industrial Registry and serve on the Respondent a Statement of Facts and Contentions by 4:00 pm on 31 January 2020, as required.
  1. [6]
    A second mention was held on 28 February 2020 and a Further Directions Order was then issued on 28 February 2020.
  1. [7]
    The CHHHS submits that the Applicant failed to comply with those Directions in two respects.
  1. [8]
    Firstly, the Applicant did not file in the Industrial Registry and serve on the Respondent a Statement of Facts and Contentions by 4:00 pm on 2 March 2020, as required.
  1. [9]
    Secondly, the Applicant did not file in the Industrial Registry and serve on the Respondent either a list of names of all witnesses nor a Statement of Evidence to be given by each of their witnesses by 20 March 2020, as required.
  1. [10]
    As a result, the CHHHS filed an application to dismiss the dispute on 23 March 2020: 

  In circumstances where:

  1.  Ms. Ayling has failed to comply with the Further Directions Orders dated 29 November 2019;
  1.  The CHHHS provided Ms. Ayling with a further opportunity to file her Statement of Facts and Contentions by virtue of their email to the QIRC Registry on 12 February 2020 and she failed to avail herself to that opportunity; and
  1.  Ms. Ayling has again failed, on two separate occasions, to comply with the Further Directions Orders dated 28 February 2020,

The CHHHS submits that it is both appropriate and reasonable that the QIRC exercise its discretion to dismiss Matter No. D/2019/104 pursuant to section 45(2) and (3) the Rules.

----------

In this matter, the Applicant has failed (on three separate occasions) to comply with two Further Directions Orders and has previously failed to file material despite further allowances being made the CHHHS.

  1. [11]
    The CHHHS posited that a decision to dismiss the dispute “…would be consistent with the relevant case law, namely the matter of Paul Scott v State of Queensland & Ors [2019] QIRC 115” in such circumstances where the complainant in that matter failed “…to comply with two Directions Orders and attend a Directions Hearing.”

What does the law say?

  1. [12]
    The CHHHS’s application to dismiss the dispute was made under rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules) which states (emphasis added):
  1. (2)
    This rule also applies if –
  1. (a)
    A party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
  1. (b)
    The party fails to comply with the order.

  (3) The court, commission or registrar may –

   (a) dismiss the proceeding; or

   (b) make a further directions order; or

  1. (c)
    make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
  1. (d)
    make orders under paragraphs (b) and (c).
  1. [13]
    The power under rule 45(3)(a) involves an exercise of discretion.  Foremost, discretionary powers must be “exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion.”[1] In exercising that discretion, I am informed by several factors, which are set out below. Ultimately, however, I must consider the particular circumstances of this case.[2]
  1. [14]
    In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd, their Honours Wilcox and Gummow JJ considered a provision under the Federal Court Rules which is materially similar to rule 45. In that case, their Honours identified two broad types of failure to comply with directions which would warrant the dismissal of a matter (emphasis added):

As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. 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 effect 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 proceeding.

In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent.[3]

  1. [15]
    Such reasoning was followed by his Honour O’Connor VP in this jurisdiction in Workers' Compensation Regulator v Varga [2019] QIRC 028, and Seymour v Workers' Compensation Regulator [2017] QIRC 061, as well as by his Honour Merrell DP in Cady v Capital SMART Repairs Australia Pty Ltd & Anor [2019] QIRC 144.
  1. [16]
    While I have found that the Applicant’s default was repeated, it is not continuing.  While compliance with the Directions Orders were late on four (4) occasions, and without reasonable excuse, they have all been complied with as at 1 April 2020.
  1. [17]
    In terms of whether the Applicant’s default imposes an unacceptable burden on the Respondent, I note that the hearing is scheduled for 23 and 24 April 2020.  I am prepared to extend the time for the Respondent to file and serve their remaining materials, whilst still retaining the scheduled hearing dates, should that be their preference.
  1. [18]
    In the exercise of my discretion under rule 45, I am also minded to consider the purpose of the Tribunal Rules, as set out in rule 6:
  1. Purpose of rules

The purpose of these rules is to provide for the just and expeditious disposition of the business of the court, the commission, a magistrate and the registrar at a minimum of expense.

  1. [19]
    The terms ‘just’ and ‘expeditious’ may sometimes appear to be at odds. Australian Courts and Tribunals often wrestle with the task of maintaining the precarious balance between expeditious resolutions, and the ability of parties to prepare for and present their case. In considering that balance while dealing with an application to dismiss for want of prosecution, his Honour Thomas JA in Quinlan v Rothwell & Anor provided:[4]

There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.

  1. [20]
    While his Honour Thomas JA was considering the Uniform Civil Procedure Rules 1999 (Qld), that passage has been adopted in this jurisdiction on a number of occasions,[5] as the underlying question to be determined is consistent with the exercise of discretion under rule 45.
  1. [21]
    In this matter, the Applicant’s failure to comply with directions has not resulted in a fundamental undermining of the Respondent’s ability to fully prepare their case. 
  1. [22]
    Whilst it has been done somewhat belatedly, the Applicant has now expressed a genuine desire to comply with the directions in the future.  She submits that the issues “…were temporary, circumstantial and have been rectified.”
  1. [23]
    Therefore, in my opinion, the purpose of the Tribunal Rules is best fulfilled in this case by exercising the discretion not to dismiss the substantive application.  It follows that I must dismiss the CHHHS’s application seeking to dismiss the Applicant’s dispute.

Why does the Applicant say her dispute should not be dismissed?

  1. [24]
    As a result of the CHHHS’s application to dismiss the dispute, a Further Directions Order was issued on 23 March 2020 compelling the Applicant in the substantive matter to file and serve written submissions as to why the matter should not be dismissed by 2:00 pm on 30 March 2020.
  1. [25]
    The Applicant’s legal representative emailed my Associate attaching the Applicant’s written submission at 2:00 pm on 30 March 2020, before taking steps to later file it in the Industrial Registry at 3:07 pm that same day.
  1. [26]
    The Applicant’s written submission argues that her dispute should not be dismissed for the following reasons:
  1.  The Applicant’s history of non-compliance did not satisfy the principles governing the exercise of the discretion to dismiss proceedings that were considered in Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd.
  1.  The CHHHS does not explain why they contend it is “both appropriate and reasonable” for the proceedings to be dismissed.
  1.  The CHHHS does not identify any prejudice suffered as a result of the Applicant’s non-compliance.
  1.  The CHHHS does not submit that the proceedings have been delayed and will not be ready for trial within an acceptable period.
  1.  The Applicant filed the Statement of Facts and Contentions on 2 March 2020 (the date contained in the Further Directions Order).
  1.  The Applicant participated in six teleconferences with her legal representative on 19 and 20 March to attempt to finalise her Statement of Evidence, ahead of the direction that it be filed and served by 4:00 pm on 20 March 2020.
  1.  The Applicant’s failure to comply with the direction to file and serve her Statement of Evidence by 4:00 pm on 20 March 2020 was due to:
  • Ms Ayling’s requirement to participate in an NDIS interview for her son;
  • Ms Ayling having difficulties with her telephone;
  • Ms Ayling’s representatives being engaged with another urgent matter at about 3:00 pm on 20 March;
  • Ms Ayling’s representatives experiencing administrative and technological issues associated with remote working.
  1.  The Applicant submits that the issues that resulted in delays in providing Ms Ayling’s Statement of Evidence “…were temporary, circumstantial and have been rectified.”
  1.  The CHHHS does not submit that the Applicant’s failure to comply with the Directions of 28 February 2020 is evidence of an “inability or unwillingness to co-operate with the Commission.”
  1.  The case of Paul Scott v State of Queensland & Ors [2019] QIRC 115 cited by the CHHHS in their application to dismiss does not draw the appropriate parallel to the circumstances of the Applicant’s failure to comply.
  1.  At the second mention on 28 February 2020, the Applicant’s legal representative explained that the failure to comply with the Directions were “…the result of administrative failings…” and was not the fault of Ms Ayling.
  1. The Applicant’s filing of the Statement of Facts and Contentions less than three hours after the date provided for in the Directions of 28 February 2020 is not a sound, defensible or well-founded basis to dismiss the proceedings, having regard to:
  • The prejudice the Applicant would suffer as a result of the dismissal of the proceedings;
  • The absence of any identifiable prejudice to the Respondent as a result of the proceedings remaining on foot;
  • The explanation offered by the Applicant and the current extraordinary external circumstances; and
  • The subsequent compliance with the Directions issued by the QIRC.

The Decision

  1. [27]
    In my view, there are two fundamental questions.  First, whether the Applicant has failed to comply with Directions Orders.  Second, whether any such non-compliance warrants dismissal of the appeal.
  1. [28]
    I find that the Applicant has failed to comply with my Directions Orders on four occasions and that this has repeatedly occurred without reasonable excuse.
  1. [29]
    Notwithstanding the above, I am not satisfied that sufficient grounds exist at this time to warrant my dismissal of the Applicant’s dispute.
  1. [30]
    In coming to this decision, I have given particular weight to the prejudice that the Applicant would suffer should the dispute be dismissed and the lesser prejudice to the Respondent as a result of the proceedings continuing.
  1. [31]
    My reasons follow.

The Applicant’s repeated failure to comply with Directions Orders

  1. [32]
    The CHHHS submits that the Applicant has failed to comply with the following Directions Orders:
  1.  The Applicant did not file in the Industrial Registry and serve on the Respondent a Statement of Facts and Contentions by 4:00 pm on 31 January 2020, as required by the Further Directions Order issued on 2 December 2019.
  1.  The Applicant did not file in the Industrial Registry and serve on the Respondent a Statement of Facts and Contentions by 4:00 pm on 2 March 2020, as required by the Further Directions Order issued on 28 February 2020.
  1.  The Applicant did not file in the Industrial Registry and serve on the Respondent a list of names of all witnesses by 20 March 2020, as required by the Further Directions Order issued on 28 February 2020.
  1.  The Applicant did not file in the Industrial Registry and serve on the Respondent a Statement of Evidence to be given by their witnesses by 20 March 2020, as required by the Further Directions Order issued on 28 February 2020.

Applicant’s Statement of Facts and Contentions not filed and served by 4 pm on 31 January 2020

  1. [33]
    The Further Directions Order (1) issued on 2 December 2019 directed:

That the Applicant is to file in the Industrial Registry and serve on the Respondent a Statement of Facts and Contentions … by 4:00 pm on 31 January 2020.

  1. [34]
    The CHHHS submission evidences the numerous (but fruitless) attempts to contact the Applicant’s legal representative by both email channels and telephone messages throughout the month of February. 
  1. [35]
    The CHHHS emailed the Industrial Registry on 12 February 2020, noting that the Applicant had not filed and served the Statement of Facts and Contentions and proposed an extension be granted until 4:00 pm on 21 February 2020.  The Applicant’s legal representative was copied into this email.  Again, no response was received.
  1. [36]
    At the second mention on 28 February 2020, the Applicant’s legal representative explained that the failure to comply with the Directions was not the fault of Ms Ayling.  Ms Bassingthwaighte stated:

…firstly, I must apologise for our lack of contact with the Commission.  The fault is part administrative on behalf of our firm and part my own personal fault.  I only say that to make the point that it is not the fault of the Applicant herself that we have failed to comply with the directions.

  1. [37]
    I find that the Applicant did not comply with Directions Order (1) dated 2 December 2019. 
  1. [38]
    I find that the Applicant had no reasonable excuse for failing to comply with that Directions Order.

Applicant’s Statement of Facts and Contentions not filed and served by 4:00 pm on 2 March 2020

  1. [39]
    The Further Directions Order (1) issued on 28 February 2020 directed:

That the Applicant is to file in the Industrial Registry and serve on the Respondent a Statement of Facts and Contentions … by 4:00 pm on 2 March 2020.

  1. [40]
    The Applicant has submitted that:

…it is relevant that Ms Ayling filed the Notice of Facts and Contentions on 2 March 2020, being the date on which it was identified that she would be able to comply with this direction.

  1. [41]
    For their part, the CHHHS stated that the Applicant did not file in the Industrial Registry and serve on the Respondent a Statement of Facts and Contentions by 4:00 pm on 2 March 2020, as required.
  1. [42]
    The Applicant’s Statement of Facts and Contentions was emailed to the Industrial Registry at 6:56 pm on 2 March 2020 (rather than 4:00 pm as directed).
  1. [43]
    I accept that it was served on the Respondent on 3 March 2020.  Further, the CHHHS attached an email exchange to their submissions showing that the Applicant’s legal representative failed to provide the Respondent with the reasons why she did not comply with the Direction, as requested.
  1. [44]
    I find that the Applicant did not comply with Directions Order (1) dated 28 February 2020. 
  1. [45]
    I find that the Applicant had no reasonable excuse for failing to comply with that Directions Order.

Applicant’s List of Witnesses not filed and served by 4:00 pm on 20 March 2020

  1. [46]
    The Further Directions Order (3) issued on 28 February 2020 directed:

That the Applicant file in the Industrial Registry and serve on the Respondent a list of names of all witnesses to be called by the Applicant in the hearing, by 4:00 pm on 20 March 2020.

  1. [47]
    The CHHHS states that the Applicant was yet to comply with the Direction to file and serve a list of witnesses as at 23 March 2020 (the date they applied for the Applicant’s dispute to be dismissed).
  1. [48]
    My Associate emailed the Applicant’s legal representative to remind her to do this at 10:01 am on 31 March 2020.
  1. [49]
    I note that the Applicant’s List of Witnesses was eventually filed in the Industrial Registry on 1 April 2020 – some twelve (12) days late. 
  1. [50]
    In light of the above, the Applicant’s assertion that the various issues resulting in delays “…have been rectified” and pointing to “…the subsequent compliance with the Directions issued by the QIRC” was ambitious at time of writing her submission.
  1. [51]
    However, notwithstanding the late compliance with the express terms of the Further Directions Order, I note the transcript of the mention held in this matter on 29 November 2019 addresses the issue of witnesses for the Applicant’s case in these terms:

 MS BASSINGTHWAIGHTE [40]:  

… Can I just say though, on that point, we are not anticipating that there will be many, if any, witnesses from the applicant’s side, save for the applicant herself…

 ----

 COMMISSIONER [15]:

…And Ms Bassingthwaighte, witnesses? You indicated, I think, that it was just the Applicant herself?

 MS BASSINGTHWAIGHTE [20]:  

 Correct, Commissioner.

  1. [52]
    While this does not in any way obviate the requirement for the Applicant to comply with the Further Directions Order, the impact of the breach on the Respondent’s ability to make the necessary preparations for the hearing of this matter is somewhat cushioned by the verbal advice provided.
  1. [53]
    I find that the Applicant did not comply with Directions Order (3) dated 28 February 2020. 
  1. [54]
    I find that the Applicant had no reasonable excuse for failing to comply with that Directions Order.

Applicant’s Statement of Evidence not filed and served by 4:00 pm on 20 March 2020

  1. [55]
    The Further Directions Order (4) issued on 28 February 2020 directed:

That the Applicant file in the Industrial Registry and serve on the Respondent a statement of evidence to be given by each of their witnesses at the hearing by 4:00 pm on 20 March 2020.

  1. [56]
    The CHHHS states that the Applicant was yet to comply with the Direction to file and serve their Statement of Evidence as at 23 March 2020 (the date they applied for the Applicant’s industrial dispute to be dismissed).
  1. [57]
    I note that the Applicant’s Statement of Evidence was emailed to the Industrial Registry at 6:19 pm on 30 March 2020.  That is, eleven (11) days late.
  1. [58]
    The CHHHS states that the Applicant did not serve the Statement of Evidence to them until 5:30 pm on 1 April 2020 and only after they had enquired about it.  The two-day delay has neither been identified nor explained by the Applicant in her submission.
  1. [59]
    The Applicant submits that she participated in six teleconferences with her legal

representative on 19 and 20 March to attempt to finalise her Statement of Evidence, understanding the requirement that it be filed and served by 4:00 pm on 20 March 2020.

  1. [60]
    Further, it is submitted that the Applicant’s failure to comply with the direction to file and serve her Statement of Evidence by 4:00 pm on 20 March 2020 was due to:
  • Ms Ayling’s requirement to participate in an NDIS interview for her son;
  • Ms Ayling having difficulties with her telephone;
  • Ms Ayling’s representatives being engaged with another urgent matter at about

 3:00 pm on 20 March;

  • Ms Ayling’s representatives experiencing administrative and technological issues

 associated with remote working.

  1. [61]
    The Applicant submits that the issues that resulted in delays in providing Ms Ayling’s Statement of Evidence “…were temporary, circumstantial and have been rectified.”
  1. [62]
    I have carefully considered the Applicant’s submissions as to the reasons for failing to comply with the order by the due date and make the following observations.
  1. [63]
    The Applicant has been on notice that the various tasks contained in the Further Directions Orders were required for the progress of her Industrial Dispute matter since at least the first mention on 29 November 2019. 
  1. [64]
    There was a significant period of time between 29 November 2019 and 20 March 2020 in which to complete those tasks.
  1. [65]
    The Applicant is legally represented.  The tasks contained in the Further Directions Order are standard preparations for a hearing.  The Applicant’s legal representative would have an understanding of the time required to adequately prepare and produce these documents. 
  1. [66]
    Whilst the Applicant’s participation in six teleconferences with her legal representative on 19 and 20 March signals an intention to comply with the Direction to file and serve her Statement of Evidence by 4:00 pm on 20 March 2020; there is seemingly no attempt to explain the subsequent delay between 20 March (the date the Statement of Evidence was required) and when it was finally emailed to the Industrial Registry at 6:19 pm on 30 March 2020.
  1. [67]
    With respect to the Applicant’s various reasons for failing to file and serve the Statement of Evidence by 4:00 pm on 20 March 2020, as set out in paragraph [26], I do not accept these as reasonable excuses.  The tasks and deadlines were set out in the Further Directions Order dated 28 February 2020 – some three weeks prior.  The Applicant’s requirement to attend an interview for her son and the Applicant’s legal representative’s attention to another urgent matter one hour before the deadline to file and serve, may explain tardiness of a few hours but does not reasonably excuse the filing and serving of the Statement of Evidence eleven (11) days late.  Further, the location of the Applicant in Cairns and the location of her legal representative in Brisbane was always going to mean that interviews between them would be conducted on the telephone and that documents would be collaboratively developed via email.  That was known and should have been planned for accordingly.  Telecommunications between Cairns and Brisbane did not grind to a halt for eleven (11) days between 20 March 2020 and 30 March 2020.  Nor can I accept that remote working arrangements, however challenging, were the cause of filing and serving the Statement of Evidence so late.
  1. [68]
    I find that the Applicant did not comply with Directions Order (4) dated 28 February 2020. 
  1. [69]
    I find that the Applicant had no reasonable excuse for failing to comply with that Directions Order.

Application for Legal Representation

  1. [70]
    Whilst the CHHHS has not raised this in their application to dismiss the Applicant’s dispute, there is a further issue regarding the application for legal representation. 
  1. [71]
    In the mentions held in this matter on 29 November 2019 and 28 February 2020, I asked the Applicant’s legal representative to attend to the filing of the Form 4 Application for Legal Representation and she undertook to do so.  This is yet to be complied with.

Does the non-compliance with four (4) Directions Orders, without reasonable excuse, warrant the dismissal of the appeal?

  1. [72]
    Despite the frustration and inconvenience created by the Applicant’s repeated non-compliance with Directions Orders, including her lack of early engagement when the inability to comply ‘on time’ was known, I consider the prejudice that would be suffered by the Applicant should her dispute be dismissed far outweighs the prejudice to the Respondent should it proceed.
  1. [73]
    I do acknowledge that this situation - not of the Respondent’s making - has created a level of disadvantage.
  1. [74]
    The Respondent’s submissions of 2 April 2020 clearly outline the prejudice they have, and will, suffer. The Applicant’s failures:

…have resulted in the Respondent being delayed in terms of filing its material and engaging Counsel for trial. The Respondent submits that this delay may result in either:

 a. the Dispute proceeding to trial as scheduled and therefore significantly reducing the relevant preparation time between the close of pleadings and the commencement of the trial; or

 b. further delay by virtue of the current trial dates being vacated and a new, later trial date being listed.

 Either way, the Respondent submits that this delay caused by the Applicant indicates an inability or unwillingness by the Applicant in terms of having the Dispute ready for trial within a reasonable period.

  1. [75]
    Additionally, I recognise that any delay in the trial date, resultant from the Applicant’s repeated delays in complying with Directions Orders, would also mean the Applicant’s retention “…in a non-clinical role despite her substantive position being a Registered Nurse.”
  1. [76]
    However, I find that the prejudice to the Applicant should the dispute be dismissed is considerably greater. 
  1. [77]
    In those circumstances, she would lose the opportunity to have her industrial dispute application heard and decided with respect to a period of supported practice and further assessments; claims that a period of leave was deducted without her authority; and claims of procedural problems in the application of the relevant Award provision.  In essence, the Applicant would lose her right of review of those significant professional and industrial matters.

Conclusion

  1. [78]
    I find that the Applicant has failed to comply with Order 2 from the Further Directions Order issued on 2 December 2019 and has failed to comply with Orders 1, 3 and 4 from the Further Directions Order issued on 28 February 2020. 
  1. [79]
    I find that the Applicant has no reasonable excuse for failing to comply with the Further Directions Orders.
  1. [80]
    As set out above, in two mentions of this matter, and in two separate Further Directions Orders, the Applicant was instructed to undertake tasks contained therein by the time so specified.  Not only were the directions provided verbally at the mentions, for which transcripts are provided to the parties, but the directions were also clearly set out in written orders. 
  1. [81]
    The Applicant is legally represented, and I have no doubt that the Applicant understood those directions.
  1. [82]
    Further, I note the Applicant could have made contact with the Industrial Registry and Respondent to indicate such emergent circumstances preventing her from meeting the deadlines to file and serve as contained in the Further Directions Orders.  But she did not.  Indeed, when the CHHHS identified the failure to file and serve the Statement of Facts and Contentions by the due date in the first Directions Order and contacted the Commission to make arrangements for an extension on the Applicant’s behalf, the Applicant’s legal representative failed to reply to numerous emails and telephone messages throughout the month of February 2020.
  1. [83]
    The question is then whether such repeated non-compliance warrants dismissal of the Applicant’s industrial dispute.  In that regard, I have considered all the relevant circumstances; including the length and cause of the delays.
  1. [84]
    I find that the prejudice that the Applicant would suffer as a result of the dismissal of her dispute – compared with the lesser prejudice to the Respondent as a result of the proceedings continuing – does not warrant the dismissal of the Applicant’s dispute at this time.
  1. [85]
    However, I place the Applicant on notice that any further disregard of Directions Orders may well result in a different decision.

Orders:

  1. That the Respondent’s Application in Existing Proceedings (filed on 23 March 2020) is dismissed.
  1. That each Party bear their own costs in this Application.

Footnotes

[1] House v R (1936) 55 CLR 499, 503.

[2] Cooper v. Hopgood & Ganim [1998] QCA 114, 6; citing Witten v. Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405.

[3] Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200.

[4] Quinlan v Rothwell & Anor [2001] QCA 176, 8.

[5] Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73

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Editorial Notes

  • Published Case Name:

    Alison Ayling v State of Queensland (Cairns and Hinterland Hospital and Health Service)

  • Shortened Case Name:

    Ayling v State of Queensland (Cairns and Hinterland Hospital and Health Service)

  • MNC:

    [2020] QIRC 50

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    03 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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