Bouskila v Corrective Services NSW [2019] NSWIRComm 1061

Bouskila v Corrective Services NSW [2019] NSWIRComm 1061

The applicant and her solicitors repeatedly failed to comply with Commission directions and Practice Note 17A, did not move expeditiously to obtain medical evidence despite knowing from 6 February 2018 of the reason for medical termination, and did not provide cogent and compelling evidence that the motor vehicle accident or medication prevented timely action. Having regard to the overriding purpose, case management obligations, prejudice to the respondent and Commission resources, the proceedings should be dismissed under Rule 12.7 of the Uniform Civil Procedure Rules 2005 and s 61(3) of the Civil Procedure Act 2005.

Jurisdiction
Australia
Judgment Date
30 August 2019
Procedural Posture
Unfair Dismissal Application Pursuant to S 84 of the Industrial Relations Act 1996 / Notice of Motion Seeking Dismissal for Failure to Prosecute the Proceedings With Due Despatch
Outcome
The application is dismissed.
Legal Topics
['unfair Dismissal Proceedings' 'dismissal for Want of Due Despatch' 'failure to Comply With Directions' 'case Management' 'practice Note 17 A' 'uniform Civil Procedure Rules 2005 R 12.7' 'civil Procedure Act 2005 S 61(3)']
['industrial Relations' 'civil Procedure'] ['unfair Dismissal Proceedings' 'dismissal for Want of Due Despatch' 'failure to Comply With Directions' 'case Management' 'practice Note 17 A' 'uniform Civil Procedure Rules 2005 R 12.7' 'civil Procedure Act 2005 S 61(3)']

Case Brief

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Procedural Posture

Unfair Dismissal Application Pursuant to S 84 of the Industrial Relations Act 1996 / Notice of Motion Seeking Dismissal for Failure to Prosecute the Proceedings With Due Despatch

Legal Issues

  1. 1 ['Whether the applicant failed to prosecute her unfair dismissal proceedings with due despatch.' 'Whether repeated non-compliance with directions and Practice Note 17A justified dismissal under Rule 12.7 of the Uniform Civil Procedure Rules 2005 and s 61(3) of the Civil Procedure Act 2005.' 'Whether the applicant provided cogent and compelling reasons for delays in filing evidence, including the motor vehicle accident and need for specialist medical evidence.' 'Whether dismissal was required by the dictates of justice having regard to prejudice, case management obligations and the overriding purpose of the Civil Procedure Act 2005.']

Ratio Decidendi

The applicant and her solicitors repeatedly failed to comply with Commission directions and Practice Note 17A, did not move expeditiously to obtain medical evidence despite knowing from 6 February 2018 of the reason for medical termination, and did not provide cogent and compelling evidence that the motor vehicle accident or medication prevented timely action. Having regard to the overriding purpose, case management obligations, prejudice to the respondent and Commission resources, the proceedings should be dismissed under Rule 12.7 of the Uniform Civil Procedure Rules 2005 and s 61(3) of the Civil Procedure Act 2005.

Court Disposition

The application is dismissed.

Orders

  • ['Pursuant to Rule 12.7 Uniform Civil Procedure Rules 2005 and s 61(3) of the Civil Procedure Act 2005, proceedings in IRC Matter No 2018/10665 are dismissed.']