Natoli v McInnes Wilson Lawyers
[2021] QIRC 41
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- Unreported Judgment
- Natoli v McInnes Wilson Lawyers[2021] QIRC 41
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Natoli v McInnes Wilson Lawyers[2021] QIRC 41
Natoli v McInnes Wilson Lawyers[2021] QIRC 41
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Natoli v McInnes Wilson Lawyers [2021] QIRC 041 |
PARTIES: | Natoli, Danielle Applicant v McInnes Wilson Lawyers Respondent |
CASE NO: | B/2020/65 |
PROCEEDING: | Application for proportionate payment of long service leave |
DELIVERED ON: | 5 February 2021 |
HEARING DATES: | On the papers |
MEMBER: | McLennan IC |
HEARD AT: | Brisbane |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – LONG SERVICE LEAVE – where the applicant was directed to file materials and failed to do so – consideration of rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) |
LEGISLATION: CASES: | Industrial Relations (Tribunals) Rules 2011 (Qld) r 41, 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 Treanor v State of Queensland [2019] QIRC 146 Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405 Workers' Compensation Regulator v Varga [2019] QIRC 028 Workers’ Compensation Regulator v Bero [2019] QIRC 36 |
Reasons for Decision
- [1]Ms Danielle Natoli (the Applicant) filed a Form 14 – Application for proportionate payment of long service leave (the Application) on 2 September 2020. In brief, the Application relates to Ms Natoli’s claim that she terminated her employment because of illness, and so is entitled to proportionate payment of long service leave under s 95(4) of the Industrial Relations Act 2016 (Qld).[1]
- [2]The matter was conferenced before Commissioner Hartigan on 10 September 2020. The Application did not resolve at conference, and so was referred to me for hearing.
- [3]A Further Directions Order was issued to the parties on 21 September 2020 requiring the parties to file a Statement of Facts and Contentions (‘SOFC’) and a list of witnesses to be called and notifying the parties that the matter would be mentioned once that had occurred. Those Directions were sent to the two email addresses which Ms Natoli had used throughout these proceedings to communicate with the Commission and Industrial Registry. Those were also the email addresses Ms Natoli provided as her contact email on the Application.
- [4]That Further Directions Order required Ms Natoli to file her SOFC by 4pm on 6 October 2020. That did not occur.
- [5]By way of emails from my Associate dated 26 October 2020 and 4 November 2020, Ms Natoli was asked to explain why the delay had occurred, and to advise what the status of her matter was.
- [6]On 5 November 2020, Ms Natoli replied to those correspondences. In short, she said she had been busy with her job, that she would like some further information about the matter from the Respondent (by way of references to what is said to have occurred at the conciliation conference), and that she was considering engaging legal representation.
- [7]On 6 November 2020, by way of email, Ms Natoli was advised that she was required to comply with Directions or else the matter may be dismissed. That email also explained to Ms Natoli that there was a disclosure process set out in the Further Directions, and also noted how she could calculate any long service leave entitlements she may have.
- [8]Later that same day, an Amended Further Directions Order was issued, in the same terms as the previous orders but with extended timeframes. Those orders allowed Ms Natoli a further opportunity to prosecute her case, and required her to file a SOFC by 20 November 2020. Ms Natoli did not comply with that Direction. Indeed, even now she has still not filed her SOFC.
- [9]As a result, I issued Further Directions to the parties inviting submissions on whether the matter should be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld).[2]
- [10]For the reasons that follow, I have determined that Ms Natoli’s continued and inadequately explained non-compliance with my directions warrants the dismissal of her Application.
Submissions
- [11]Following the Directions being sent to both parties, Ms Natoli filed submissions on 4 January 2021. Those may be briefly summarised as follows:
- The application should not be dismissed.
- Ms Natoli intended to represent herself “up to the point of preparing for a hearing”.
- Ms Natoli had asked the Respondent to provide her with some information or a document, in order to assess the value of her claim. That has not been provided, which she says has ramifications on her ability or willingness to engage legal representation or perhaps her desire to pursue the application.
- Ms Natoli recognises that she has failed to comply with Directions, that she was aware of the consequences of non-compliance, and that she was capable of complying. She says that the reason she has failed to comply with those Directions is because of a “mental block” caused by a “phobic avoidance” of dealing with this matter.
- Ms Natoli concludes by suggesting that she wishes to pursue the matter, and will be engaging legal representation to do so.
- [12]To date, despite the closing lines in her submissions, Ms Natoli remains non-compliant with the Directions. She has not filed a SOFC in these proceedings.
- [13]The Respondent filed submissions in response on 15 January 2020. Those may be briefly summarised as follows:
- The Applicant’s conduct and indeed submissions evidence a clear unwillingness, or otherwise inability, to co-operate with the Commission and Respondent in order for this matter to be prepared for trial in an acceptable period.
- In particular, the Applicant’s repeated failures to file and serve her SOFC have resulted in a three-month delay in the proceedings. Fatally for the Applicant, she acknowledges that even the possibility of the matter being dismissed has not prompted her to deal with the matter.
- Without the SOFC, the Respondent cannot know the Applicant’s case.
- Given those circumstances, and the lack of advice provided by Ms Natoli as to when she will engage legal representation or file her outstanding materials, this Commission ought not deal with the matter further. Rather, it should be dismissed.
- [14]No submissions in reply were forthcoming from Ms Natoli.
Rule 45
- [15]Rule 45 of the Rules provides (emphasis added):
45Failure to attend or to comply with directions order
- (1)This rule applies if—
- (a)a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
- (b)the party fails to attend the hearing or conference.
- (2)This rule also applies if—
- (a)a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
- (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
- (c)make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
- (d)make orders under paragraphs (b) and (c).
- [16]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.”[3] 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.[4]
- [17]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.[5]
- [18]The Respondent also relied on that case in their submissions. 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.
- [19]Ms Natoli’s default is certainly continuing, given her ongoing failure to file and serve the SOFC. It also imposes an unacceptable burden on the Respondent, as they are unable to meaningfully respond to the Complaint without understanding Ms Natoli’s case.
- [20]In the exercise of my discretion under rule 45, I am minded to consider the purpose of the Tribunal Rules, as set out in r 6:
- 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.
- [21]The terms ‘just’ and ‘expeditious’ may sometimes appear to be at odds. 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 (my emphasis): [6]
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.
- [22]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,[7] as the underlying question to be determined is consistent with the exercise of discretion under r 45. The Respondent also relied on that case in their submissions.
- [23]In this matter, Ms Natoli’s failure to comply with Directions has resulted in a fundamental undermining of the Respondent’s ability to fully prepare their case. As such, were this matter to progress to hearing, in the current state of Ms Natoli’s noncompliance, it would be fundamentally unjust to the Respondent.
- [24]One alternative to dismissal would be to place this matter into abeyance until either Ms Natoli complies with the directions, or the matter lapses due to inactivity. However, Ms Natoli has never expressed any genuine desire to comply with the directions, presently or at some stage in the future. It is relevant that Ms Natoli is herself a solicitor, a person who would well appreciate the import of complying with Directions. Indeed, in her own words:
As a practicing solicitor, I am and have at all times been aware of the implications for the non-compliance with directions orders of the Commission.
At all times since I lodged my application, I have had the skills and ability to comply with the directions made by the Commission myself.
The potential dismissal of my claim against the Respondent still has not prompted me to deal with this matter but for drawing these submissions.
- [25]She then goes on to say, in effect, that she will be engaging legal representation to assist her in pursuing the Application. She does not, however, say when that would occur. Nor does she explain when she intends on complying with the Directions. Several months later, Ms Natoli remains non-compliant.
- [26]Ms Natoli does not clearly articulate why she has not complied with Directions, beyond saying that she has had a “mental block” arising from “a phobic avoidance of dealing with this matter in any substance”. That is an entirely insufficient explanation for non-compliance. Neither do Ms Natoli’s submissions and correspondences lead me to believe that she will prosecute her matter. She has been afforded several chances to do so and has declined on each occasion.
- [27]Ms Natoli’s election not to take any steps to prosecute her Application evinces, to my mind, an intention that she was not, and is not, genuinely intending to comply with my Directions. As such, further delay would create a futile and unnecessary impediment to the expeditious resolution of this matter, which has already been on foot since September 2020.
- [28]Therefore, in my opinion, the purpose of the Tribunal Rules is best fulfilled in this case by exercising the discretion under r 45 to dismiss this Application.
Costs
- [29]Given that this matter has resolved without proceeding to hearing, I am not minded to award costs.
Conclusion
- [30]Ms Natoli has failed to comply with Directions to file materials in this matter. Those failures have not been adequately explained in her materials, and the Direction to file materials has still not been complied with. That is despite being provided with several opportunities to do so. Ms Natoli has been entirely unwilling to take the necessary steps to prosecute her case.
- [31]As such, I find that this Application should be dismissed under rule 45. I order accordingly.
Orders
- That the application filed by Ms Natoli on 2 September 2020 is dismissed.
Footnotes
[1] ‘the IR Act’.
[2] ‘the Rules’.
[3] House v R (1936) 55 CLR 499, 503.
[4] Cooper v. Hopgood & Ganim [1998] QCA 114, 6; citing Witten v. Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405.
[5] Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200.
[6] Quinlan v Rothwell & Anor [2001] QCA 176, 8.
[7] See, eg, Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73; Workers' Compensation Regulator v Varga [2019] QIRC 028, 5-6.