REFERRAL TO COMMISSION UNDER PUBLIC SECTOR MANAGEMENT ACT 1994

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00253

DELIVERED : WEDNESDAY, 23 APRIL 2025

FILE NO. : APPL 74 OF 2023

Applicant

AND

Minister for Corrective Services

Respondent

CatchWords : Application to dismiss for want of prosecution – delay in prosecuting – principles for applications to dismiss for want of prosecution

Legislation : Industrial Relations Act 1979 (WA)

Result : Application Refused

Representation:

Applicant : Ms Jacqueline Cooper

Respondent : Mr John Caroll (of counsel)

Case(s) referred to in reasons:

The Australian Workers Union, West Australian Branch, Industrial Union of Workers and Barminco Pty Ltd – Plutonic Project [2000] WAIRC 13162; (2000) 80 WAIG 3162

Birkett v James [1978] AC 297

Mr Nathan Maher -v- Director General of Health [2012] WAIRC 00134

Ulowski v Miller [1968] SASR 277

Reasons for Decision

1         On 30 October 2023 Ms Jacqueline Cooper (the applicant) referred to the Commission the decision of her employer, the Minister for Corrective Services (the Respondent) to take disciplinary action by demoting her from Principal Officer to Senior Officer.

2         On 5 July 2024 the respondent applied to the Commission for an order to dismiss the application pursuant to s 27(1)(a) of the Industrial Relations Act 1979 (WA) because it asserts the applicant has failed to progress her application.

3         The applicant opposes the dismissal of her appeal and says she has progressed her matter. The applicant says the period the respondent complains she did not progress her application is as a result of her attempts to negotiate an outcome, and this ought not be held against her.

Background

4         On 28 October 2023 the applicant referred a matter under the Public Sector Management Act 1994 (WA), concerning a decision of the employing authority to take disciplinary action against her and reduce her classification. The application was filed in the Commission on 30 October 2023.

5         The employer responded on 6 November 2023.

6         The parties attended a conciliation conference on 14 December 2023. No settlement was agreed at the conciliation conference. The respondent agreed to provide the applicant’s lawyer a video that it says confirms their allegations of the applicant’s conduct. The applicant was requested to advise the Commission how she wished to progress her appeal once she had viewed the video and considered her options.

7         On 15 December 2023, the respondent sent an email to the applicant’s lawyer, sending her a link to view CCTV of the incident. It stated that video footage would need to be viewed at the respondent’s lawyer’s office (in Perth Central Business District), due to risks associated with public disclosure of the footage.

8         Ms Cooper submitted that due to the footage only being able to be viewed from the Perth CBD, about 45 minutes’ drive from her home, along with the rostering of shift work patterns, meant there were limited opportunities for her to be able to view the video.

9         On 25 March 2024, the Commission emailed the parties requesting an update as nothing further was heard from either party following the conciliation conference.

10      On 18 April 2024 the applicant’s lawyer responded to chambers’ request for an update made in late March 2024. The applicant’s lawyer advised that she had sought further documents from the respondent and on receipt and review of the documents she anticipated the applicant would be in a position to provide a more substantive update to the Commission.

11      From the documents submitted at the hearing it is evident that between 27 March 2024 and 17 April 2024, the applicant and her lawyer were in communications about any additional evidence the applicant sought from the respondent and ‘a compromise position with respect to a return to rank (for example a time period within which this would occur given no substantiated conduct/performance allegations in that period)’.

12      On 22 April 2024, the respondent sent the applicant’s lawyer the evidence sought.

13      Evidence provided by the applicant shows that during May 2024 the applicant communicated with the respondent and with her lawyer for the purposes of proposing terms for a settlement and securing further documents or materials.

14      On 23 May 2024 the respondent informed the applicant that they declined to meet with her.

15      On 4 July 2024, the respondent informed the applicant’s lawyer that it would be filing an application to be dismiss her appeal because the applicant had not progressed her application.

16      On 5 July 2024, the respondent filed a Form 1A application to dismiss the application for want of prosecution under s 27(1)(a) of the Industrial Relations Act 1979 (WA).

17      At that stage, no correspondence had been received by Ms Cooper’s lawyers addressing the proposals or submissions with reference to the evidence they had considered.

18      On 8 July 2024, the applicant’s lawyers sent a further letter to the respondent outlining the view of the applicant and seeking a remedy.

19      On 8 July 2024, the respondent responded to this letter via email, stating ‘I am instructed that the Department will not reconsider the disciplinary action which was imposed’.

20      On 16 July 2024, the applicant’s lawyer ceased to act for the applicant.

21      On 19 July 2024, the Commission sought the views of the applicant on the respondent’s application to dismiss her appeal. The applicant responded on the same day advising she opposed the application.

Legal Principles

22      The relevant principles to be considered in determining whether to dismiss an application for want of prosecution are set out in The Australian Workers Union, West Australian Branch, Industrial Union of Workers and Barminco Pty Ltd – Plutonic Project (2000) 80 WAIG 3162 (Barminco), in reliance on Ulowski v Miller [1968] SASR 277 at 280.

23      Adopting the five ‘paramount matters’ which must be taken into account in the exercise of the discretion to dismiss for want of prosecution set out by Sharkey P in Barminco I must consider the following: (1) length of delay; (2) the explanation for the delay; (3) the hardship to the plaintiff if the application is dismissed and the cause of action left statute barred; (4) the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, (5) and the conduct of the respondent in the litigation.[3162]

24      In Barminco Sharkey P also cited Birkett v James [1978] AC 297, where it was held:

that the power of the court to dismiss an action for want of prosecution should be exercised only where the plaintiff’s default had been intentional and continuous or where there had been inordinate and inexcusable delay on the part of the plaintiff or her/his lawyers giving rise to a substantial risk that a fair trial would not be possible or to seriously prejudice to the respondent.

25      In Mr Nathan Maher -v- Director General of Health [2012] WAIRC 00134, the Public Service Appeal Board adopted these principles and also noted –

[14] an order that an application be dismissed for want of prosecution is a discretionary matter, and ought not be fettered by any absolute or inflexible rules. However, the paramount matters identified in AWU v Barminco (op cit) are appropriate in this case.

The length of the delay

26      The respondent acknowledges that there was a period following the conciliation conference for which it was reasonable that the applicant would have taken time to view evidence and consider her situation. Taking this into account, the respondent submits that there is a significant period in which the applicant failed to actively progress her appeal. The respondent says that it is reasonable to expect that the applicant would have taken steps to progress her application after the respondent provided discovery in December and the applicant failed to do so for about four months. The respondent asserts the applicant has not provided an acceptable reason for the failure to progress her application in that period.

27      The applicant submits that in the months of April and May she was in regular contact with her legal representative about accessing and viewing the video produced by the respondent, the need for additional evidence, and her options. The applicant submits that the need to attend at offices in Perth and her shift work arrangements meant this occurred between December and March 2024.

28      The applicant submits that, in the period March to May 2024 through her lawyer then engaged with the respondent to request additional evidence in their possession and corresponded with the respondent in an attempt to negotiate a settlement.

29      For some periods, the applicant endeavoured to engage the respondent to settle her application by proposing terms of settlement directly or through representations made by her lawyer. However, there is no evidence of any activity during June 2024.

30      The length of delay is consequently reduced given the applicant was attempting to progress her application, seeking further evidence or a negotiated settlement.

The explanation for the delay

31      The applicant met with the Assistant Commissioner Custodial Operations on 2 May 2024. Following this meeting the applicant sought the intervention of the Commissioner on 6 May 2024.

32      The applicant says that she believed negotiations were being progressed. The applicant refers the Commission to her two letters dated 14 May 2024 and sent to the respondent on 21 May 2024. Neither party submitted any evidence of a response to this correspondence.

33      The applicant says she was waiting for the respondent to respond to her letter dated 14 May 2024 and sent to the respondent on 21 May 2024 setting out her position following her viewing of the video evidence and further evidence.

34      Consistent with the applicant’s view that negotiations were ongoing, on 8 July 2024 her lawyer subsequently sent a further letter to the respondent seeking a remedy and sought a response by 15 July 2024. On the same day, the respondent notified the applicant that they would not reconsider the disciplinary action imposed.

35      I find that prior to 8 July 2024 the applicant reasonably believed that communications and correspondence was being conducted by her lawyer on her behalf to reach a settlement of her appeal and a remedy for her circumstances. The respondent submits that there was nothing to show the applicant that further negotiations would be fruitful. In the absence of a response to the applicant’s two letters dated 14 May 2024 and an unequivocal response in similar terms to that of 8 July 2024 the applicant reasonably believed negotiations were being conducted on her behalf. This favours the applicant.

The hardship to the applicant if the application is dismissed

36      The applicant has claimed that the decrease in income has been substantial, and that there have been feelings of humiliation from being demoted.

37      This is a neutral factor.

The prejudice to the respondent

38      It should be noted that Ms Cooper stated in the hearing that this is her first disciplinary breach in 21 years of service, and so it is difficult to see the prejudice to the respondent on this basis.

39      The respondent has argued that asking employees to give evidence would continue to have this prospect ‘hanging over their heads’, and that their memories will become less reliable.

40      There is evidence in the form of CCTV and cell call recordings which are available. Whilst there may be some prejudice to the respondent, if the CCTV and cell call recordings are in support of its decision, this should not be a significant factor.

41      The respondent also gave evidence that the Principal Officer positions at Bandyup Women’s Prison are no longer vacant. The applicant submits that there are 30 positions throughout the state at this rank, and she is willing to move to another prison to return to rank.

42      I find that on balance there is a degree of prejudice to the respondent.

Conduct of the respondent in the litigation

43      The respondent has provided discovery and further evidence and responded to the requests of the Commission quickly.

44      However, the lack of response to the letter dated 21 May 2024 does not favour the proceedings being dismissed. Given the details in that correspondence which were based on Ms Cooper having viewed further evidence, if the respondent had been clear that it was not willing to negotiate, this may have caused Ms Cooper to no longer believe negotiations were being conducted and to progress the matter to final hearing.

Conclusion

45      My assessment of the five paramount factors, set out in Barminco and applied to this matter I consider on balance the interests of the appellant are favoured. Adopting the reasoning in Birkett v James and applied in Barminco, I find that there is no evidence that Ms Cooper’s behaviour had ‘been intentional and continuous’ or that her delay was ‘inexcusable’. Rather, it appears she held a reasonable belief that she was progressing her application through various means including negotiations conducted by meetings and correspondence.

46      The respondent’s application to dismiss the application is refused.