Tyquin v Metro North Hospital and Health Service (No. 2)
[2020] QIRC 216
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- Tyquin v Metro North Hospital and Health Service (No. 2)[2020] QIRC 216
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Tyquin v Metro North Hospital and Health Service (No. 2)[2020] QIRC 216
Tyquin v Metro North Hospital and Health Service (No. 2)[2020] QIRC 216
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Tyquin v Metro North Hospital and Health Service (No. 2) [2020] QIRC 216 | |
PARTIES: | Tyquin, Megan Patricia (Applicant) v Metro North Hospital and Health Service (Respondent) | |
CASE NO: | TD/2020/31 | |
PROCEEDING: | Application for Reinstatement | |
DELIVERED ON: | 9 December 2020 | |
MEMBER: HEARD AT: | Knight IC On the Papers | |
ORDER: |
| |
CATCHWORDS: | INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – where Applicant served Notice to Admit Facts on Respondent – where Rules provide that, if no response received, facts are deemed to be admitted – where Respondent did not respond – whether Respondent should be granted leave to withdraw certain deemed admissions. | |
LEGISLATION: CASES: | Industrial Relations (Tribunals) Rules 2011 Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 | |
Reasons for Decision
Introduction
- [1]Ms Megan Patricia Tyquin ('the Applicant') has filed an application for reinstatement. On 28 April 2020, she served a Notice to Admit Facts ('the Notice') on Metro North Hospital and Health Service ('the Respondent').
- [2]The Respondent did not provide a response within 14 days after receiving the Notice and is therefore deemed to have admitted the facts set out therein.
- [3]At a Mention before me on 23 October 2020 in respect of the substantive application and the issuing of directions to facilitate the hearing of the matter, the Respondent expressed its concern that, were it not given leave to withdraw some or all of its deemed admissions, it would suffer serious consequences. The Applicant opposed the granting of leave. I directed the parties to file written submissions on this point.
- [4]The Notice contained some 18 facts. The Respondent seeks leave to withdraw only some, specifically, 7, 8, 11-14 and 18.
Relevant Legislative Provisions
- [5]The Industrial Relations (Tribunals) Rules 2011 ('the Rules') relevantly provide:
49 Notice to admit facts or documents
- (1)A party to the proceeding (the first party) may, by notice in the approved form served on another party, ask the other party to admit, for the proceeding only, the facts or documents stated in the notice.
- (2)If the other party does not, within 14 days after receiving a notice under subrule (1), serve a notice on the first party disputing the facts or the authenticity of the documents, the other party is taken to admit, for the proceeding only, the stated facts or the authenticity of the stated documents.
- (3)The other party may, with the leave of the court, commission or registar, withdraw an admission taken to have been made under subrule (2).
Consideration
- [6]Both parties referred to the case of Ridolfi v Rigato Farms Pty Ltd.[1] There, a party to a proceeding sought leave to withdraw admissions deemed to have been made once the party's (previous) solicitors failed to respond within 14 days. The trial judge refused leave. This was appealed to the Court of Appeal.
- [7]In dismissing the appeal, de Jersey CJ said:
... a court would ordinarily expect sworn verification of the circumstances justifying a grant of leave. Those circumstances may include why no response to the notice was made as required, the response the party would belatedly seek to make, and confirmation that the response would accord with evidence available to be led at the trial.[2]
- [8]Williams J also held (my emphasis):
Certainly an admission ... should not be withdrawn merely for the asking. In my view a clear explanation on oath should be given as to how and why the admissions came to be made and then detailed particulars given of the issue or issues which the party would raise at trial if the admission was withdrawn.[3]
How and Why?
- [9]Mr Peter Sparrow is the manager of workplace relations. He is responsible for workplace and industrial relations capability services across the Respondent.
- [10]He filed an affidavit deposing, in a nutshell, that he misunderstood the process.
- [11]To begin with, he says the email address to which the Applicant sent the Notice, while valid, was not the email address provided for on the Employer Response filed in the Commission on 13 March 2020.
- [12]Mr Sparrow concedes that he would have received the email but, due to the passage of time, cannot confirm whether he opened or read the email or the attached Notice. He suspects he did not read the Notice for, if he had, the unit's in-house employment lawyer would have been notified.
- [13]He relied upon his past experience of proceedings before the Commission where, generally, documents are filed in the Industrial Registry in accordance with a Directions Order, and, to the extent documents are served directly by another party, they bear the Industrial Registry's seal, having already been filed.
- [14]Mr Sparrow also highlighted that, at the time the Notice to Admit was received, he was under the misapprehension that the process for the future conduct of the matter (including agreed facts) would occur pursuant to a directions order issued by the Commission.
- [15]In his affidavit, Mr Sparrow sets out his reasons as to why the facts numbered 7, 8, 11-14 and 18 should not be deemed admitted. Williams J, in Ridolfi, said that the first step to be determined concerns whether there is a genuine dispute as to the fact(s) the deemed admission of which is sought to be withdrawn.[4] In this instance, I am satisfied that the Respondent has sought leave to withdraw from only those admissions which constitute a genuine factual dispute between the parties.
- [16]The Applicant challenges the Respondent's characterisation of the error as a 'misunderstanding' or 'misapprehension'. It was, she suggests, mere indifference that should not be excused in light of Mr Sparrow's seniority, his expertise, and the resources and legal representation to his avail. There is, it must be said, some force to this argument.
Delay
- [17]A significant factor that militated against the granting of leave in Ridolfi was the delay between the lapsing of the 14-day period after which the facts are deemed to be admissions and, thereafter, the seeking of leave for withdrawal thereof.
- [18]Here, too, delay is a factor. The 14-day period lapsed on 12 May 2020. At this stage, the Respondent was not legally represented. According to Mr Sparrow's affidavit, the first he became aware of the deemed admissions was at the conciliation conference before Pidgeon IC on 8 October 2020. The following week, he instructed the Respondent's legal representative to take steps to withdraw the deemed admissions.
- [19]This formally occurred on 23 October 2020 during a Mention before me – some five months after the 14-day period lapsed. I accept that such a delay is significant.
- [20]However, when considering the circumstances of Ridolfi as an example, de Jersey CJ noted that injustice would result if the deemed admissions were to be withdrawn given those admissions had been relied upon by the other party for months in preparing for the case. Here, by contrast, the intention to withdraw the deemed admissions was evinced at the Mention prior to the issuance of the Directions Order for the substantive application and thus well before the material – outlines of argument and affidavits of evidence – had been filed.
Prejudice
- [21]Delay dovetails with the issue of prejudice. It cannot be argued the Applicant will suffer great prejudice if the particular admissions for which leave is sought are withdrawn. As said before, no material in relation to the hearing of the application has been filed, no hearing date set. This should be contrasted with the Respondent's circumstances where, if bound by the deemed admissions, it will suffer considerable prejudice in circumstances where I accept that those admissions sought to be withdrawn represent genuine and pivotal factual disputes between the parties.
- [22]That is, I am satisfied, having regard to the affidavit of Mr Sparrow, that the Respondent will be prejudiced if paragraphs 7, 8, 11-14 and 18 of the Notice to Admit facts are not withdrawn, given they are directly relevant to the determination of issues such as whether termination of employment was a proportionate disciplinary penalty and whether it was open to the decision-maker to conclude the Applicant engaged in the conduct.
Disposition
- [23]I have a discretion, unfettered in its terms, as to whether the Respondent may be granted leave to withdraw from particular admissions deemed to have been made. In exercising that discretion, I have had regard to the purpose of the Rules: to provide for the just and expeditious disposition of the business of the Commission at a minimum of expense.
- [24]At this relatively early stage in proceedings, I am minded, on balance, to exercise my discretion in favour of the Respondent by granting leave to withdraw the deemed admissions at [7], [8], [11]-[14] and [18] of the Notice to Admit Facts served 28 April 2020.
- [25]I order accordingly.