WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES CHUBB SECURITY AUSTRALIA PTY LTD CHUBB SECURITY HOLDINGS AUSTRALIA LIMITED, APPELLANTS v. PAUL RAYMOND DANSON, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN SENIOR COMMISSIONER G L FIELDING DELIVERED MONDAY, 26 FEBRUARY 2001 FILE NO/S FBA 7 OF 2000 AND FBA 43 OF 2000 CITATION NO. 2001 WAIRC 02168 _______________________________________________________________________________ Decision Appeals dismissed. Appearances Appellants Mr J H Brits (of Counsel), by leave Respondent Mr G McCorry, as agent _______________________________________________________________________________ Reasons for Decision. THE PRESIDENT— 1 These are the unanimous reasons for decision of the Full Bench. 2 These were two appeals, in respect of which applications were heard together on 23 February 2001. Appeal No FBA 7 of 2000 3 Appeal No FBA 7 of 2000 is an appeal by the abovenamed appellant, Chubb Security Australia Pty Ltd (hereinafter referred to as “Chubb Security Australia”) against the decision of the Industrial Magistrate in the Industrial Court at Perth on 9 February 2000. 4 There was an application by the respondent, Mr Paul Raymond Danson, which came before the Full Bench on 14 July 2000, which sought that the appeal be struck out. An order for costs was also sought. By order dated 14 July 2000, which was deposited in the office of the Registrar on the same day, the Full Bench dismissed that application. 5 No steps were taken further to list this appeal for hearing and an application was lodged in the Commission alleging that Chubb Security Australia had failed to take any or any adequate steps to prosecute the appeal, despite repeated requests to do so. That application was filed on 20 December 2000 on behalf of Mr Danson. The application is to strike out the appeal for want of prosecution. 6 No answer to that application has been filed, but a letter has been provided to the Associate to the President dated 25 January 2001 in which the Manager—Legal Services of the Chamber of Commerce and Industry of Western Australia (hereinafter referred to as “the CCIWA”), on behalf of Chubb Security Australia, which seeks leave to withdraw the appeal and requests that the strike out application also be withdrawn. 7 At the hearing, the agent for the respondent, Mr McCorry, objected to the withdrawing of the appeal and pressed his application to strike out the appeal. Mr Danson sought that the appeal be struck for want of prosecution and that costs be awarded to him. Appeal No FBA 43 of 2000 8 An appeal was filed by Chubb Security Holdings Australia Limited (hereinafter referred to as “Chubb Security Holdings”) on 29 August 2000 against the whole of the decision of the Commission made on 11 August 2000 in matter No 635 of 1999. 9 No steps have been taken to advance the matter, including the fact that no appeal books have been lodged. 10 Mr Danson filed an application on 20 December 2000 for an order that appeal No FBA 43 of 2000 be struck out for want of prosecution on the ground that Chubb Security Holdings has failed to take any or any adequate steps to prosecute the appeal, despite repeated requests on behalf of Mr Danson to do so. 11 There is a further application on the part of the CCIWA, by letter of 20 February 2001, to withdraw the appeal and also seeking an order to withdraw the application to strike out the appeal. That also was opposed. SUBMISSIONS ON BEHALF OF MR DANSON Appeal FBA 7 of 2000 12 Mr Danson applied to strike out appeal No FBA 7 of 2000 on the basis that, given the history of the appeal, there has been a series of separate inordinate and inexcusable delays and complete disregard of the rules of the court in full awareness of the consequences by Chubb Security Australia, and this should properly be regarded as contumelious conduct or, if not that, an abuse of the process of the court. 13 Further, other than the filing and serving of the appeal books, Chubb Security Australia has taken no further action to expedite the appeal, notwithstanding written reminders by the Commission and by Mr McCorry. 14 It was submitted that there was an irresistible inference that the appeal was brought frivolously and vexatiously, and Chubb Security Australia’s appeal should not be allowed to be withdrawn, but should be struck out as an abuse of process and Chubb Security Australia should pay the costs and expenses of and incidental to these proceedings. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 786 Appeal FBA 43 of 2000 15 It was submitted that this appeal should be struck out because, in six months, no action has been taken by Chubb Security Holdings to prosecute its appeal, despite written reminders and requests by the Commission and Mr McCorry to do so, and the granting by Mr McCorry for an extension of time in which to prosecute the appeal before any application to strike it out would be lodged. 16 No appeal books have been lodged, no application for an extension of time within which to lodge the appeal books has been filed and no further action, beyond filing the Notice of Appeal and obtaining a stay of the order for payment, has been taken. This delay was submitted to be inordinate and inexcusable. 17 It was submitted that, given the length of time that the breach of the procedural rules has continued, the reasons for the breach and the fact that the respondent and the administration of the court’s business had been prejudiced, then the appeal should be struck out, and there should be an order for costs. ISSUES AND CONCLUSIONS 18 It is quite clear that nothing was done by or on behalf of the appellants to advance these appeals until the applications to strike them out, referred to above, were filed. There were several months of inaction. Indeed, in the case of appeal No FBA 7 of 2000, that inaction followed the earlier application to dismiss for want of prosecution, and to which we refer to above. No adequate explanation was offered for such inaction. 19 We are also satisfied and find that it was only after those applications were filed that the appellants sought to withdraw the appeals, which was most unsatisfactory. 20 Mr Danson has been very patient in the face of this inaction; inaction which warranted Mr Danson making the applications which he did. At the hearing, Mr Danson, through his agent Mr McCorry, pressed for the appeals to be struck out for want of prosecution. 21 However, Mr Brits, who appeared for the appellants, was able to say that he had no objection to the appeals being dismissed rather than withdrawn. He certainly offered no argument in support of the appeals. They were not made out, therefore, and should be dismissed for that reason. 22 It seemed to the Full Bench that the applications to strike out, even if there is power to strike out rather than dismiss, became otiose, once there was no objection to their dismissal. The most satisfactory way of dealing with the appeals with some finality, and to which course there was no objection in any event, was to dismiss the appeals by way of determination of the appeals. No attempt was made to establish the merits of the appeals and this was recognised by there being no objection to dismissal in lieu of an order permitting withdrawal by leave. 23 There was no order for costs sought on behalf of Mr Danson. 24 For those reasons, we agreed to the orders to dismiss the appeals and the applications to strike out. 2001 WAIRC 02157