WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES NEVILLE JOSEPH COLLARD, APPELLANT v. RICHARD CURRY, DEPARTMENT OF INDIGENOUS AFFAIRS, RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD COMMISSIONER P E SCOTT – CHAIRMAN MR K TRENT – BOARD MEMBER MS J BRIENNE – BOARD MEMBER DATE OF ORDER WEDNESDAY, 10 SEPTEMBER 2003 FILE NO. PSAB 14 OF 2002 CITATION NO. 2003 WAIRC 09320 _________________________________________________________________________________________________________ Result Appeal dismissed Representation Appellant Mr J Dasey Respondent No appearance _________________________________________________________________________________________________________ Reasons for Decision The Appeal 1 These are the unanimous Reasons for Decision of the Public Service Appeal Board (“the Board”). This is an appeal to the Board said to be subject to s.86(3) of the Public Sector Management Act 1994. The Notice of Appeal was lodged with the Commission on 5 September 2002 and against the decision of the respondent of 26 August 2002. In the Schedule to the Notice of Appeal the appellant appears to complain about the finding of two serious breaches of discipline and the penalty of a reprimand and a fine of 2 days pay for each of the two breaches, totalling $1,067.40. The Notice of Appeal contains no grounds. 3458 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. Background and History 2 By 25 March 2003, no Declaration of Service had been filed by the appellant to demonstrate service of the Notice of Appeal on the respondent, nor had the appellant sought to proceed with the appeal. 3 In accordance with the Commission’s established procedures, an appeal to the Board not prosecuted within 6 months of being filed is referred by the Registrar of the Commission to the Chief Commissioner for allocation. In accordance with that established procedure, on 25 March 2003, the appeal was allocated by the Chief Commissioner to the Board and the Board was duly convened. 4 On 23 May 2003, at the direction of the Board, the Acting Associate to the Board, Ms Maunick, wrote to the appellant at the address contained within the Notice of Appeal, of 17 Bridges Street Albany WA 6003, raising with him a number of issues. The first such issue was that the Commission’s records showed no indication that he had served a copy of the Notice of Appeal on the respondent as is required by the Industrial Relations Commission Regulations 1985 (“the Regulations”). The letter also noted that since the appeal was filed he appeared to have taken no action to prosecute the appeal. The Board invited him to respond to the tests set out in Australian Workers’ Union, West Australian Branch, Industrial Union of Workers v Barminco Pty Ltd – Plutonic Project (FB) 80 WAIG 3162 being— (a) whether the length of the delay was serious; (b) whether, in a jurisdiction such as this where the emphasis is on swift remedies, whether the period of delay was, ipso facto, inordinate and irrecoverable; (c) whether the appellant would suffer hardship if deprived of the opportunity to seek correction of the matter appealed against by granting the application; (d) whether there would be prejudice to the parties respectively of the matter either proceeding or not proceeding; and (e) the explanation for the delay. 5 The appellant was directed to respond to those issues in writing by no later than 4.00pm on Friday, 6 June 2003. 6 On 28 May 2003, the letter referred to above was returned to the Commission marked “return to sender” and marked that the addressee had left the address. 7 The Board then directed the Associate to the Board, Ms Firth, to attempt to contact the appellant on the mobile telephone number he had included in the Schedule to the Notice of Appeal. On 6 June 2003, Ms Firth made such an attempt and the response received was that the number provided was not a valid one. 8 The Board then directed Ms Firth to attempt to contact the appellant via his solicitor, Mr Peter Ward, to whom he had made reference in the Schedule to the Notice of Appeal by telephoning that solicitor. We note that the Notice of Appeal does not indicate that Mr Ward was representing the appellant, or that Mr Ward was the person to whom contact ought to be directed. Ms Firth attempted to telephone Mr Ward on the telephone number provided in the Schedule to the Notice of Appeal but that telephone number was incorrect. Ms Firth then checked the telephone directory and contacted Mr Ward on 4 June 2003. Mr Ward advised that he would be seeing the appellant that very evening and would ask the appellant to telephone Ms Firth as a matter of urgency and she provided Mr Ward with her contact details. 9 It was not until 11 June 2003, some seven days later, that the appellant telephoned Ms Firth and advised her of his new address. He also noted that he was pursuing a workers’ compensation claim through his solicitor. Ms Firth advised him that an officer of the Civil Service Association of Western Australia Incorporated (“CSA”) had contacted the Commission requesting advice on the status of the matter and she had indicated to this officer that the Commission was attempting to contact the appellant. On being informed of this, the appellant advised Ms Firth that he would speak to both his solicitor, Mr Ward, and to the CSA officer within the next day and discuss the matter with them. 10 By letter dated 13 June 2003, almost identical to the letter of 23 May 2003, the Board directed the appellant to respond to the issues set out, this time, no later than 4.00pm on Friday 27 June 2003. The only difference between this letter and the letter to the appellant dated 23 May 2003, which had been returned to the Commission, is that the Board indicated that the letter of 23 May 2003 addressed to him at the address provided in the Notice of Appeal had been returned stating that he was no longer at that address. It noted that a number of attempts were made to contact him including telephoning the mobile number provided in the Notice of Appeal, however, the telephone number was no longer valid. It noted that the Board had decided to make a further attempt to locate him by contacting Mr Ward. Further, it noted that on 4 June 2003, Mr Ward had advised that he would inform the appellant that evening that he was to contact the Board as a matter of urgency, but that it was not until 11 June 2003 that he had contacted Ms Firth stating that Mr Ward had advised him on 6 June 2003 to contact the Board. In addition to the other matters required to be addressed, he was to address the issue of why he had failed to advise the Board of his change of address and the reason for not urgently contacting the Board once Mr Ward had advised him to do so. 11 By letter dated 26 June 2003, received by the Commission on that date, the appellant indicated that the respondent’s conduct about which he was complaining had an effect upon his health, that his doctors had certified him unfit for employment with the respondent, and that he had been on leave and extended leave on their advice since 6 October 2002. Amongst other things he advised that he was not in a proper state to prosecute the appeal although he wanted to, but was limited by his health. He said that he would ask his doctors for medical reports if the Board required them. The letter addressed no other issue raised by the Board. 12 By letter dated 27 June 2003, at the direction of the Board, Ms Firth wrote to the appellant advising him that the issue of his obtaining medical reports from his doctors for the Board was a matter for him to decide and that if he believed that it was appropriate to provide those medical reports, he should do so as a matter of urgency given the delays that had already occurred. He was to provide any such reports by 4.00pm on Monday 7 July 2003. 13 By letter dated 6 July 2003, received on 7 July 2003, the appellant provided to the Board medical certificates and reports from 3 medical practitioners, the most recent being a medical certificate dated 3 June 2003. These documents all appear to relate to workers’ compensation, none of these reports appears to have been obtained for the purpose of addressing the issues raised by the Board, nor did they address those issues, except to the extent that they dealt with the appellant’s ill health. 14 By letter dated 28 July 2003, Ms Firth, at the direction of the Board, advised the appellant that it was now appropriate to hear from the respondent as to its view of the issues previously raised with him. Before doing so, the Board wished to know whether he had any objection to the respondent being provided with a copy of the doctors’ reports and medical certificates which had been provided to the Board. His advice on that matter was sought. Further, the Board wished to know, if it were to allow the appeal to remain unprosecuted at that stage, when he thought he would be in a position to do so. He was also asked whether he wished to have the opportunity to address the Board in person in a formal hearing in the presence of the respondent in respect of the issues raised in previous correspondence. He was to respond within 7 days of that date. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3459 15 On 30 July 2003, the appellant contacted Ms Firth by telephone. He advised her that he objected to the documents being provided to the respondent as he believed that the respondent may misuse those documents in other proceedings. He further advised that he was currently unable to prosecute the appeal. He did not want the case before the Board until the doctor had certified him fit for work. At that stage, he was unable to give any indication as to when he may be able to prosecute the appeal. The appellant also indicated that he would be happy to discuss the matters with the Board privately, he did not wish the respondent to be present. He said that his lawyer had a heavy workload and therefore he was going to consult a new lawyer. He had an appointment with the new lawyer and had arranged to see him that week. He believed that after he had consulted with the lawyer he would be able to respond to the Board in writing by the end of next week i.e. by 8 August 2003. 16 By letter dated 4 August 2003, Ms Firth confirmed the telephone conversation of 30 July 2003 and advised that the Board had granted an extension of time for him to reply. He was thereby directed to respond to the issues outlined in the letter of 28 July 2003 by 4.00pm on Monday 11 August 2003. By 14 August 2003, nothing further was heard from the appellant. 17 However, on 6 August 2003 an officer of the CSA, Mr Sims, rang in regard to the matter saying that the appellant had contacted him saying that he now wanted the CSA to represent him and he had forwarded copies of correspondence to that officer, Mr Sims. Mr Sims noted that he was aware of the 11 August 2003 deadline by which the appellant must respond to the issues identified by the Board. Mr Sims requested a copy of the Notice of Appeal. That day, at 1.23pm, a copy of the Notice of Appeal was sent to the CSA by facsimile transmission. 18 On Monday 11 August 2003, Ms Thomas, an officer identifying herself as having taken over Mr Mark Sims’s role at the CPSU/CSA while he is on long service leave, advised Ms Firth that she understood that a response was required by 4.00pm that day. She said that she had spoken to the appellant, who still wished to pursue the application so he would like the appeal listed. Ms Thomas asked that the appeal be listed for some time in September or October to enable her to review the material and assist the appellant in his case. On direction from the Chairman of the Board, Ms Firth telephoned Ms Thomas and advised her that at that stage the Board was still considering whether the appeal ought to proceed at all. She noted that the Board had asked the appellant a range of questions over a period of time, had given him extensions of time to allow him to answer and that those issues needed to be dealt with as a matter of urgency. She invited Ms Thomas to view the Commission’s file. 19 On 12 August 2003, Ms Thomas advised Ms Firth by email that she understood the issues, including whether or not the Notice of Appeal had been served on the respondent, and a number of other matters. 20 On 14 August 2003, having received no response from or on behalf of the appellant in accordance with his undertaking of 30 July 2003, the Board notified the parties that it would convene on Friday 22 August 2003 for the purpose of the appellant showing cause why the appeal should not be dismissed. 21 On 21 August 2003, the CSA filed a Warrant to Appear on the appellant’s behalf. 22 At the hearing on 22 August 2003, the appellant was represented by the CSA and Mr Dasey presented a medical certificate from a Dr Tannenbaum dated that date indicating that the appellant was suffering from “major depression” and “diabetes”. His symptoms included anxiety, and a number of others, in handwriting which is difficult to decipher. The prognosis was that his symptoms were uncertain, likely to show considerable improvement within 2 years and that his diabetes was likely to persist. 23 Mr Dasey says that the whole situation in respect of the appellant’s prosecution of the appeal had arisen on the basis that the appellant’s illness has made it difficult for him to actively prosecute the appeal or to meet the timeframes that have been set for him. In the circumstances, if the Board had any questions of Dr Tannenbaum, then he encouraged the Board to adjourn the hearing and seek that advice. 24 Mr Dasey also says that the breaches of discipline found against the appellant and the penalty imposed on him are strongly opposed by the appellant and that he sees this as important to his reputation as a senior member of his Aboriginal community and as a former Detective Senior Sergeant in the police force. He wants an opportunity to challenge the findings. 25 Mr Dasey also assured the Board that now the CSA was involved and representing the appellant, if a second chance were given to him, then the CSA would ensure that matters were dealt with and eventually brought to conclusion. He also says that the respondent is not disadvantaged by the delay. Further, Mr Dasey urged the Board not to dismiss the appeal on the basis that, according to the Industrial Relations Act 1979 (“the Act”), there is no appeal against the Board’s decision. In those circumstances, he urged that the Board decide to dismiss the matter only in extreme circumstances. 26 The Board conferred and advised the parties that having taken account of Mr Dasey’s submissions and having a degree of sympathy for the appellant’s situation, it had formed the unanimous view to dismiss the appeal and reasons for decision were to follow. Conclusions 27 The Board notes the history of this matter and in particular that the Notice of Appeal was lodged almost one year ago. The appellant made no efforts to prosecute the appeal for more than 6 months after the appeal was lodged. The Notice of Appeal has not been served upon the respondent. This is so even after the issue was drawn to the appellant’s attention in the letter of 13 June 2003, and notwithstanding that contact between Ms Firth and officers of the CSA made clear that they were aware of this issue. 28 By the time of the hearing of 22 August 2003, the matter had gone beyond the issues of a failure to prosecute the appeal to be a situation where the appellant was to show cause why the appeal should not be dismissed. In considering that, the Board notes the following. 29 If the Board were required to consider the question of the failure to prosecute, we would take account of the tests set out in AWU v Barminco – Plutonic Project (supra). 30 As to the length of the delay, this is now almost a year. This is a jurisdiction where matters of this nature are to be dealt with expeditiously, and this is exemplified by the requirement to lodge the appeal within 21 days of the date of the decision (s.80J of the Act and Regulation 45(2) of the Regulations), and “shall on return to him of the stamped copy of the Notice of Appeal serve it on the respondent” (Regulation 45(5) of the Regulations). In this context, the delay is significant and inordinate. This is particularly so given that the issue of the lack of service was drawn to the appellant’s attention by the Board by the letter of 13 June 2003, and was noted by officers of the CSA in their communications with Ms Firth. Even at the date of hearing, it was not addressed except that Mr Dasey said that the appellant thought his solicitor had served the appeal. There is no evidence that the appellant has attempted to clarify this with his solicitor or correct the situation since it was raised with him. 31 As to the issue of detriment or hardship which the appellant might suffer by not being able to pursue the appeal, this was not dealt with by the appellant when he responded to the letter of 13 June 2003. The only time this was addressed was by Mr Dasey at the hearing. The detriment to the appellant would be the loss of an opportunity to overturn a fine of $1,067.40, and that the appellant’s standing in the community may be affected. Bearing in mind that the appeal is against 2 findings of a breach of discipline, a reprimand and a fine of $1,067.40, that detriment is not so significant as to outweigh the other issues. 3460 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 32 As to the explanation for the delay, the Board takes it to be that the appellant’s medical condition has prevented his prosecution of the claim and his responding to the Board’s questions in a timely manner or at all. This may be so, but there is no evidence to support this. The medical reports and certificates do not deal with this matter at all. They support his claim of having a medical condition but they do not demonstrate that the medical condition has been the cause of the applicant’s failures. It is not sufficient for the appellant to produce a medical certificate at the hearing and suggest that if the Board has any questions they could be pursued. The onus is on the appellant, not on the Board, to establish the facts. The Board also takes account of the fact that issues had been raised on a number of occasions and the appellant still failed to deal with them. He had access to advice from his solicitor. Notwithstanding the involvement of the CSA, it was still not addressed. 33 There are other matters which also require consideration. The appellant made no effort to advise the Board of his change of address and the Board made efforts beyond those which would be normal and beyond its obligations to make contact with him. Nor did he advise of why he had not contacted Ms Firth urgently when Mr Ward, his solicitor, advised him to do so. 34 The appellant has not answered all of the issues raised with him in the letter of 13 June 2003, notwithstanding that extensions of time were given. The appellant was given a second extension of time in which deal with whether he objected to the Board providing copies of the doctors’ reports to the respondent to 8 August 2003 and he had undertaken to do so in writing, and he failed to do so at all. 35 As the Full Bench noted in Kangatheran v Boans Limited (67 WAIG 1112 at 1113) s.27(1)(a) of the Act provides amongst other things, for the dismissal at any stage of proceedings if further proceedings are not necessary or desirable in the public interest, or for any other reasons the matter should be dismissed. In that particular case, the applicant had failed to pursue his claim. The Full Bench said— “There was the overriding factor of the expense to the public involved and the unsatisfactory efforts after some months which had been made to bring it to any sort of conclusion … This Commission has in the exercise of its jurisdiction under section 29 considerable responsibility to the public and to the litigating public in particular, those who come before it with claims, those who are respondents to those claims. There are many, many applications of a similar sort which are dealt with day by day and there is every reason why individual Commissioners dealing with them are at pains to ensure some reasonable expedition in the prosecution of those claims.” 36 These comments, while made in the context of an application pursuant to s.29 of the Act, are applicable to appeals before the Board. 37 We are of the view, in the circumstances, that it is not in the public interest that this matter remains on foot. The appellant has failed to prosecute the claim, he has failed to serve the respondent with a copy of the Notice of Appeal, and he has failed to deal with questions from the Board, some either at all or in a timely fashion. He has had plenty of opportunity to seek advice and representation over more than 2 months since the Board first raised the issues with him. 38 For these reasons we formed the view that the appeal should be dismissed. _________ 2003 WAIRC 09321 APPEAL AGAINST FINDING AND PENALTY