Anthony Andrew Cavacuiti and another v Toyota Motor Corporation Australia Limited

APPELLANTS: Mr J van Aalst of counsel SOLICITOR: Mr M Giugni LEGAL REPRESENTATIVES: Austin & Giugni

RESPONDENT: Mr C Barton Freehills

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Walton J, Vice-President 19 December 2002

Anthony Andrew Cavacuiti and Another v Toyota Motor Corporation Australia Limited.

Application by Anthony Andrew Cavacuiti and Another to extend time to appeal and appeal against a decision of Justice Marks given on 5 June 2002 in Matter No. IRC666 of 1999.

1 This is an application pursuant to s189 of the Industrial Relations Act 1996 ("the Act") by Mr Anthony Andrew Cavacuiti ("the first applicant" and a director of the second applicant) and Berridale Investments Pty Limited ("the second applicant") for an extension of time in which to appeal the decision of his Honour Justice Marks of 5 June 2002. In that decision, his Honour found that the arrangement between the applicants and the respondent was unfair within the meaning of s106 of the Act but, as a matter of discretion, declined to make any consequential orders. Section 189(1) of the Act provides that any appeal must be made within 21 days after the date of the decision appealed against, in this case, by 26 June 2002.

2 On 25 July 2002 the applicants filed an application for leave to appeal and appeal pursuant to ss 187 and 188 of the Act and an application for extension of time pursuant to s189. To date, the applicants have not filed an appeal book in accordance with Rule 46 of the Industrial Relations Commission Rules 1996.

3 On 1 August 2002 the application for an extension of time was set down for hearing on 12 September 2002. The applicants relied upon the following grounds: G. Grounds for claiming an extension of time: 1. There will be no prejudice suffered by the Respondent. 2. The grounds set out in the attached Notice of Appeal clearly indicate the First and Second Appellants have grounds for an appeal.

4 The application was supported by two affidavits of Mr Michael Anthony Giugni, the solicitor for the applicants, sworn on 11 July 2002 and 25 July 2002, and an affidavit of the first applicant sworn 10 September 2002. Both deponents were required for cross-examination. No evidence was called by the respondent.

5 At the hearing on 12 September 2002 the applicants made oral submissions and the respondent made submissions in response orally and in writing. At the conclusion of the proceedings on 12 September, by consent, leave was given to the respondent to file a submission in writing as to the question of whether the prospects of the applicants obtaining leave to appeal should be considered by the Court. Leave was also given to the applicants to file submissions in reply in writing. Supplementary submissions were filed by the respondent on 18 September 2002. The applicants filed their submissions in reply on 24 September 2002. I note that correspondence was also forwarded by the applicants' solicitor on 30 September 2002 making some corrections to the written reply. The respondent filed further written submissions on 2 October 2002. This submission was made in response to the reply submission of the applicants which the respondent contended were "not previously raised by the applicants in the proceedings". The Court has taken into account all such submissions in reaching its judgment in this matter.

6 The applicants applied for relief in relation to a purported unfair arrangement pursuant to s106 of the Act. The applicants sought orders that the arrangement be declared void ab initio and that they be awarded compensation for losses allegedly sustained in reliance upon the conduct and representations of the respondent.

7 Marks J found that the arrangement consisted of a mutual understanding, evidenced by a course of conduct, that the respondent would grant the applicants a formal Toyota dealership at Cooma once certain designated conditions had been fulfilled. One of these conditions was the selection by the applicants of a site for the dealership which met with the respondent's approval. The course of conduct included, but was not limited to, attempts made to find a suitable site.

8 The Court summarised the origin of the dispute in the following manner. In January 1998 the first applicant completed a Toyota dealership application form. In March 1998 the respondent advised the first applicant that the franchisee would need to contribute $500,000 for the cost of land and buildings for the site. The respondent subsequently wrote to the first applicant by letter dated 6 April 1998 to assist the first applicant in his search for the necessary finance. The letter referred to his dealership application "which is presently under consideration" and purported to be given "as an indication that your application may be approved" subject to a number of conditions. Those conditions were the satisfaction of "the balance of Toyota's requirements" and the acceptance of special conditions annexed to the letter, including that the "dealer agreed to accept and abide by two Toyota dealer agreements in standard form together with ancillary documentation." The first applicant signed the letter on 17 April 1998 by way of agreement to those conditions.

9 Marks J found that the parties then looked at a number of potential sites in Cooma. Both parties assumed that, in the short term, the first applicant would, following negotiations, lease the existing dealership premises from a Mr McGee, although the respondent thought that the premises were unsuitable in the long term. According to the findings of fact, the first applicant tried to negotiate a lease from Mr McGee but was unable to reach an agreement with him. There were difficulties in obtaining an alternative site and as an interim measure the applicants secured a six month lease from July 1998 to December 1998 of premises at Polo Flats to use as a workshop and as a spare parts facility.

10 The McGee premises were subsequently advertised for sale by tender and the first applicant sent a copy of the advertisement to Mr Whalley, an employee of the respondent. On 16 October 1998 Mr Whalley informed the first applicant that the McGee site was unsuitable. His Honour found, however, that as at 26 November 1998 Mr Whalley considered that the McGee site was "an option", but that he did not advise the first applicant of this opinion. According to the first applicant's evidence the McGee property had not been sold at that stage.

11 Marks J found that by 4 November 1998 the first applicant had not secured a site suitable to both parties. At a meeting with the respondent that day the first applicant was given another set of documents consisting, among other things, of standard Toyota dealer agreements. According to the first applicant, matters deteriorated to the point where he would only deal with the respondent in writing. By letter dated 7 November 1998 the first applicant complained that the special conditions in the draft agreements did not accord with the special conditions annexed to the letter of 6 April 1998 and foreshadowed an end to negotiations: "until this matter is finalised we cannot proceed any further and negotiations regarding the Cooma Motor Engineers premises are unable to be continued, these factors may jeopardise the whole venture and cause us considerable damage". On 9 November 1998 the respondent wrote to the first applicant inviting him to highlight the special conditions which concerned him, and agreeing to amend the agreement to reflect another change requested by the first applicant relating to key personnel. The first applicant declined to provide details of required changes until his "lawyers and financial advisors have assessed these agreements in their totality". By letter dated 18 November 1998 the respondent enclosed another two copies of the dealer agreement including the special conditions. The letter referred to the special conditions within the dealer agreements "as agreed" and requested that the agreements be signed and returned by 4 December 1998.

12 According to the findings of fact at first instance, further correspondence ensued. Letters from the first applicant referred to legal advice to refrain from discussions pending further advice, and letters from the respondent invited discussions to canvass the first applicant's concerns. The respondent's telephone calls to the first applicant were unanswered. On 24 November 1998 the first applicant's solicitors wrote to the respondent stating that the terms set out in the letter of 6 April 1998, accepted by the first applicant, constituted a binding agreement and asking the respondent to honour that agreement. By letter dated 4 December 1998 the respondent advised that failure by the first applicant to execute the November 1998 agreement would be taken as a repudiation in which case the respondent would "engage a new dealer for the dealership." This letter was accompanied by a "Without Prejudice" letter which stated that the respondent did not wish to force the first applicant into a dealership and concluded "if your client has reservations about proceeding with the agreement, we invite you, or your client, to advise us on a without prejudice basis so that a mutually beneficial resolution of the matter might be achieved". Further correspondence culminated in a letter dated 14 December 1998 to the respondent from the first applicant's solicitors in which the first applicant (a) maintained the existence of an agreement in the terms of the letter and enclosures of 6 April 1998 and (b) signalled his intention to commence proceedings under s106 of the Act. In it, the first applicant invited discussions and offered to accept the sum of $160,000 by way of compensation.

13 The applicants' allegation of unfairness centred upon the difference between the letter and enclosures of 6 April 1998 and the draft agreements of November 1998. Marks J found that there were two associated allegations of unfairness: the respondent's demand that the applicants execute the dealership agreement in the form presented in November 1998 and the fact that the agreement in this form required the applicants to operate the dealership from the Polo Flats site which was unsuitable. In relation to these allegations, his Honour stated that he was unable to conclude that the applicants had established any unfair conduct on the part of the respondent, nor was he able to characterise the arrangement as being unfair for the purposes of s106 of the Act. The circumstances were more akin, the Court found, to the applicants being "merely disgruntled with a bargain entered into on even terms."

14 Nonetheless, Marks J found that it was unfair conduct by the respondent's representatives not to have advised the first applicant that the McGee site could have been suitable from the respondent's point of view once it became clear that the CME site was no longer under consideration. However, his Honour concluded that it was not appropriate to make consequential orders by way of avoidance or variation, and therefore not "permissible" to make any orders by way of monetary compensation.

15 The conclusion and orders made by his Honour were as follows: 1. I find that the arrangement between the applicants and the respondent is unfair by reason of the conduct of the respondent in failing to advise the applicants that the McGee site was an option for use as the location for the dealership after it became clear that the CME site could not be considered by the applicants.

3. Costs are reserved. I grant liberty to apply with respect to costs.

16 The evidence in relation to the application for an extension of time established that although the first applicant was aware that his application under s106 may be unsuccessful, pending judgment he did not discuss the likely date of judgment, the possibility of appealing an adverse decision, nor the timetable for such an appeal, with his solicitor.

17 The applicants' solicitors were notified by the Commission on 30 May 2002 that judgment was to be handed down on 5 June 2002. Mr Giugni entered the incorrect date in his diary and attended the Commission on 6 June 2002 where he was informed that judgment had, in fact, been handed down the previous day. The first applicant was in Berridale where, according to his affidavit evidence, he was painting his property. It is clear from the evidence that the first applicant was not aware that judgment was to be handed down on 5 June 2002.

18 Mr Giugni did not contact the first applicant until 20 June 2002, more than two weeks after judgment had been handed down. This was explained on the basis that the first applicant and his wife were not at their residential address in Sydney, but in Berridale (without a facsimile or mobile telephone coverage) from 15 May to 23 June, and had not made arrangements with Mr Giugni to be contacted in the event of judgment.

19 Counsel appearing on behalf of the applicants, Mr J van Aalst , submitted that the first applicant had "retreated" to his Berridale property due to the stress he was suffering as a result of the proceedings at first instance. I accept that the proceedings at first instance involved some degree of stress for the first applicant, but I do not consider that the evidence in the present application supports a finding that stress was the main reason for the first applicant's sojourn in Berridale. In fact, the reason given by the first applicant in his affidavit for being at Berridale when judgment was handed down was that he was painting his property. The first occasion the first applicant raised stress as "one of the reasons" for being at Berridale was during his cross-examination.

20 In any event, stress was not suggested as the reason for the first applicant's failure to make arrangements for his solicitors to contact him at Berridale in the event of judgment being handed down in his absence. Indeed, the first applicant's explanation by affidavit for failing to make such arrangements was that "[A]t that stage I had no idea how long the judgment would be (sic) handed down, bearing in mind the history of this case and how long it went on. It could have been months."

21 Following judgment, Mr Giugni attempted to contact the first applicant by leaving messages at his Sydney residence on his answering machine, which were not returned. According to the first applicant he did not become aware of the judgment until 19 June 2002, when his wife returned to Sydney and telephoned him to say there was a message from his solicitor regarding judgment.

22 On 20 June 2000 the first applicant instructed Mr Giugni by telephone to send a copy of the judgment to Berridale "by way of an overnight parcel." Mr Giugni deposed that during this conversation the first applicant informed him that he would be returning to Sydney in approximately one week's time. The first applicant gave evidence that he did not discuss an appeal or any time limit with Mr Giugni on 20 June 2002. In fact, under cross-examination by Mr C Barton , solicitor for the respondent, the first applicant stated that he could not recall asking Mr Giugni whether the judgment was in his favour. He could not "recollect the course of that conversation other than to present (sic) the judgment so I had a chance to read it." When asked by Mr Barton if it was not important to him whether he had won or lost the case, he responded "At this stage I was so stressed out, one of the reasons I was down in Berridale."

23 Mr Giugni's evidence under cross-examination casts doubt on the first applicant's version of events. When asked a question in relation to a telephone conversation on "25th June" Mr Giugni testified that he informed the first applicant during the telephone conversation that "we had won some parts of the case but overall we had lost the case and there were no compensatory orders." It appears from the sequence of cross-examination (the following question put to Mr Giugni by Mr Barton referred to "the next communication you had with Mr Cavacuiti on or about 25th June") that both Mr Giugni and Mr Barton understood the earlier question to be in relation to what was said on the 20 June 2002 and the reference to 25 June was an error. This issue was, I consider, resolved by Mr J van Aalst , who advised the Court that Mr Giugni's evidence was that he told the first applicant on 20 June 2002 that "we had won some parts of the case but overall we had lost the case and there were no compensatory orders." Mr Barton appeared to concur with this correction. Having regard to the context in which the evidence was given, I consider the concession on this point to be properly made.

24 In view of the first applicant's testimony as to the importance to him of the proceedings at first instance, I consider his evidence that he was not aware during the conversation on 20 June 2002 that the judgment was unfavourable, to be implausible. Instead I accept the evidence of Mr Giugni as to the content of that conversation.

25 I should note at this point that I do not consider the first applicant to be a witness of credit in relation to his evidence in support of the application to extend time. His evidence throughout these proceedings was inconsistent, evasive and less than frank. In contrast, Mr Giugni's evidence was given in a forthright manner and I consider him to be a reliable witness. Accordingly, to the extent of any conflict in the evidence given by the first applicant and Mr Giugni I prefer the evidence of Mr Giugni.

26 The evidence as to events following the telephone conversation on 20 June 2002 also conflicted. The first applicant deposed that "When this judgment had not been received by about the 24th of June 2002 I returned to Sydney to collect a copy of the judgment which I did on the 27th of June 2002. I immediately telephoned my Solicitors and organised a meeting with Counsel to occur on the 27th June 2002." However, under cross-examination the first applicant testified that he in fact returned to Sydney on 23 June 2002 and received a copy of the judgment "on the Tuesday which was the 25th". He also stated: "I then obviously contacted my solicitors and a meeting was arranged with counsel on the 27th." When the first applicant was then asked by Mr Barton whether in view of this evidence his affidavit evidence was, therefore, incorrect, he replied: "It arrived on the 25th. I didn't know I had to keep a diary of it. Obviously I met with counsel on the 27th. I had to wait two days before a meeting with my counsel and solicitors." During cross-examination the first applicant further testified that, when he had not received a copy of the judgment on the 21 June 2002, he telephoned his solicitor late that afternoon and said: "What has happened, it is not here?" There was no reference to this conversation in either the first applicant's or Mr Giugni's affidavits. Mr Barton asked the first applicant why it had not been included in his affidavit sworn two days previously and his response was: "Again, I suppose in hindsight, if I was doing this again I would put it in." In re-examination the first applicant advised that he realised when he read the judgment on 25 June 2002 "that we had lost the case."

27 In contrast to the first applicant's evidence under cross-examination, Mr Giugni deposed that the first applicant informed him on 24 June 2002 that he had not received the judgment which had been sent on 20 June 2002 and that he was returning to Sydney. It is difficult to reconcile the conflicting evidence as to the exact date the first applicant returned to Sydney. It is, however, of minor consequence to the matters in issue, as irrespective of the date the first applicant returned to Sydney it was (as I discuss below) accepted by both Mr Giugni and the first applicant that on 25 June 2002 they had a telephone conversation which, at the least, involved a discussion about the judgment received by the first applicant and arrangements for a conference with counsel. This suggests that the first applicant had returned by this time and I therefore find that, although it is not clear on the evidence exactly when the first applicant returned to Sydney, he did so on or before 25 June 2002.

28 Mr Giugni deposed that he faxed the judgment to the first applicant's home address on 26 June 2002 and the first applicant subsequently telephoned him to request a conference with counsel. However, during his cross-examination Mr Giugni acknowledged a telephone conversation with the first applicant on or about 25 June 2002 during which they discussed arranging a conference with counsel. He further testified that during the conversation of 25 June 2002 he mentioned to the first applicant that there was a time limit in which to file an appeal. No explanation was offered as to the discrepancies between the evidence of the first applicant and Mr Giugni as to the date a copy of the judgment was forwarded to the first applicant and the conversation which took place discussing a conference with counsel. However, Mr van Aalst conceded in oral submissions that on 25 June 2002 the first applicant received and read the judgment and had a telephone conversation with Mr Giugni during which Mr Giugni informed the first applicant of a time limit for filing an appeal. I note at this point (but I shall return to the matter) that, notwithstanding this concession by Mr van Aalst , it was contended in the applicants' subsequent written submissions in reply that the first applicant was only informed of the time limit on 27 June 2002. The written submission did not traverse the concession made by Mr van Aalst as to the date the first applicant received and read the judgment.

29 The first applicant attended a conference with Mr Giugni and Mr van Aalst on 27 June 2002 to discuss an appeal. The first applicant gave inconsistent evidence as to what he was told at the conference in relation to time limits for filing an appeal. During cross-examination the first applicant testified that he could not "recollect" being told at the conference on 27 June 2002 of a time limit for filing an appeal and that he was not told that the time limit had, in fact, expired. However, in re-examination the first applicant gave evidence that he found out on "27th June during a meeting at your [Mr van Aalst's] office" of a time limit for filing an appeal. This evidence is clearly inconsistent with Mr Giugni's evidence, to which I have previously referred, that he told the first applicant on 25 June 2002 of a time limit for filing an appeal.

30 In summary, the first applicant's evidence as to when he was first advised of a time limit was inconsistent and evasive. In my view, his evidence that he was not aware until 27 June 2002 of any such time limit is, in all of the circumstances, not credible. In fact, he claimed during his cross-examination that he could not recollect having received this information even at that point. Mr Giugni's evidence as to this issue was, on the other hand, given in a forthright and candid manner and was, I consider, truthful. The concession subsequently made by Mr van Aalst during his oral submissions that Mr Giugni informed the first applicant of a time limit on 25 June 2002 was, in my view, proper and indeed inevitable in light of the evidence. I accept Mr Giugni's evidence and find that the first applicant was told of the time limit on 25 June 2002 and further that he was aware from that time that the twenty-one day period in which to file an appeal was to expire the following day. In view of these findings I reject the applicants' subsequent contention contained in their written submissions that the first applicant was informed of the time limit on 27 June 2002. The pattern of inconsistent positions exhibited by the first applicant and his counsel (on instructions) merely reinforces my conclusion.

31 Mr van Aalst also contended that from "Mr Cavacuiti's perspective" there was some confusion as to how long he had to lodge an appeal and that it could be inferred that the time limit "did not crystallise in his mind until the 27th " by which time the statutory time period had expired. I do not accept this submission. The first applicant gave evidence of two conflicting but unequivocal positions, neither of which supports such a submission: he was advised or he was not advised by Mr Giugni on 25 June 2002 as to the time limit for filing an appeal. Further, the submission does not sit comfortably with the first applicant's evidence that he did not even recall receiving time limit advice on 27 June 2002.

32 On 28 June 2002 the first applicant instructed Mr Giugni to prepare an application for leave to appeal but did not instruct him to file the appeal until about the 11 July 2002. Various explanations were given for this delay of thirteen days. Mr Giugni deposed that counsel was instructed to prepare a "draft Notice of Grounds of Appeal" which was forwarded to the first applicant on 3 July 2002 for his comments and instructions. The draft document was subsequently amended and resubmitted to the first applicant who then instructed Mr Giugni to lodge the application (after alterations were made) on 11 July 2002.

33 Mr Giugni's evidence was corroborated by the affidavit evidence of the first applicant and contradicted in part by the first applicant's evidence under cross-examination. The first applicant deposed that he received the draft on about 3 July 2002, made "some amendments and suggestions in relation to the draft Notice of Grounds of Appeal and received a final version on or about the 10th July 2002 whereupon [he] instructed [his] Solicitors to file same in this Honourable Court." During cross-examination the first applicant initially denied commenting on the draft document or suggesting changes to it. Then, after being taken to his affidavit sworn two days previously, he testified that his affidavit evidence as to amendments and changes was, in fact, accurate. In a further display of unsatisfactory evidence, the following exchange then took place: Q. You say in paragraph 8 you made some amendments and suggestions? A. Yes, that is correct.

Q. And you relayed those or conveyed those to your advisors? A. Basically I read it, looked at it and they came back with a redraft of the agreement. There were no important issues that I raised or whatever.

Q. Important enough to make changes, Mr Cavacuiti? A. I don't think there were any changes made, the amendments and suggestions related to the notice of appeal. I went through some of the items to get a better understanding of what was being presented to the Court.

34 The cross-examination referred to illustrates the difficulty of extracting consistent and intelligible answers from the first applicant as to matters in issue. In relation to these inconsistencies in the first applicant's evidence Mr van Aalst submitted that "[T]here is some question as to whether or not he made any suggestions for changes. I think he has under cross-examination denied that he did, although his affidavit mentions some changes made by him. I would say nothing falls on that, because one is looking at time. All you can say is that he was given an opportunity to look at the grounds, send it back to his solicitor and come back to Mr Giugni, I think for lodgement, as I see this, on 11 July, when he was in a position to lodge the appeal."

35 Although no evidence was adduced as to the date amendments to the draft application were proposed, subsequently made or even the nature of the amendments, it is clear from the evidence that amendments were, in fact, made to the draft application some time after 3 July 2002. A further draft of the document was then sent to the first applicant on or about 10 July 2002. The first applicant subsequently instructed his solicitor on either 10 or 11 July 2002 to file the amended document at the Commission. In all of the circumstances, I find that amendments were, in fact, made to the draft application and that they were initiated by the first applicant. It is reasonable to infer that some part of the delay between 3 and 10 July was due to the applicant considering and then amending the draft appeal.

36 There was a further delay of two weeks between the first applicant's instructions to Mr Giugni to file the appeal and the date of filing. This delay was explained as being a "solicitor's error." Mr Giugni deposed that he attended the Industrial Registry at the Commission on 11 July 2002 to file the application for leave to appeal and appeal. He was informed by the Registry that in order to be accepted, the application would need to be amended. He returned to his office, amended the application, and prepared a letter of even date to the Law Stationers used by his firm enclosing the application for leave to appeal and appeal, application to extend time to appeal and supporting affidavit for filing at the Commission. On 24 July 2002 Mr Giugni became aware that the documents had not been lodged at the Commission. Mr Giugni filed the documents on 25 July 2002.

37 Despite a number of communications between solicitors from 11 July 2002 to 29 July 2002, the applicants' solicitors did not advise the respondent's solicitors that an appeal was being considered, was to be filed or had been filed until 30 July 2002 when they sent a facsimile attaching copies of the application for leave to appeal and appeal, application to extend time to appeal and two affidavits sworn by Mr Giugni.

38 Mr Barton and Mr van Aalst agreed that the Court should determine this application by reference to the following principles: 1. The extent of and reasons for the failure to file the appeal within time.

2. The prospects of the applicants succeeding in the appeal.

3. Whether any prejudice would be suffered by the respondent by reason of the granting of the extension of time.

39 I will address these issues, and the parties' submissions, after reviewing the general principles governing applications of this nature.

40 The principles to be applied to an application to extend time to appeal are set out in WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (1996) 70 IR 298, a judgment which I applied in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. It has also been considered and applied by Wright J, President, in Tadic v Beslic [2001] NSWIRComm 107; NSW Teachers' Federation v NSW Office of The Board of Studies [2000] NSWIRComm 1; LEP International Pty Ltd v Caine (2000) 97 IR 35 and De Luxe Cab Company Ltd (formerly known as Deluxe Red and Yellow Cabs Cooperative Trading Society Ltd) v Grenside (1999) 92 IR 384.

41 In WorkCover Authority of NSW (Inspector Salmon) v Parkes Council the Full Bench of this Court summarised the relevant principles (at 299-301) as follows:

The proper approach to adopt in a consideration of the application was common ground between the parties. Reference was made in that respect to the decision of the Full Commission ( Peterson and Schmidt JJ, and Connor CC) of the former Industrial Relations Commission of New South Wales in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 5-6 as followed by the Full Commission ( Cahill VP, Maidment J and French CC) in Brookes v Watling (1995) 61 IR 163 at 166-167. In those two cases the Full Commission cited recent authorities formulating the way in which the grant of an extension of time for the filing of an appeal should be considered: see Gallo v Dawson (1990) 64 ALJR 458; Jess v Scott (1986) 12 FCR 187; and Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601. From those cases, the following propositions may be drawn: (1) The grant of an extension of time is not automatic and the object of those rules which fix times for doing acts is to ensure they do not become instruments of injustice; the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262.

(2) The discretion can only be exercised in favour of an extension of time upon proof that compliance with the rules will work an injustice upon the applicant therefore which necessarily requires regard be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application to extend time: see Avery v No 2 Public Service Appeal Board [1978] 2 NZLR 86 at 92; and Jess v Scott at 194-195.

(3) An application for an extension of time in which to file an appeal always requires consideration of the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-264; and Mitchelson v Mitchelson (1979) 24 ALR 522 at 524.

(4) Upon the expiration of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: see Vilenius v Heingar (1962) 36 ALJR 200 at 201.

(5) There must be material upon which it can be satisfied that to refuse the application to extend time would constitute an injustice: see Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1965] 3 All ER 933 at 935.

(6) "The difference between two weeks and four weeks is not much (by which the time is to be extended) … We never like a litigant to suffer by the mistake of his lawyers": per Lord Denning in Ghosh at 601. In accepting the approach inherent in the above propositions, the Full Commission observed in Skelly (at 6):

"The Commission's Rules require an appeal to be filed within 28 days of a decision. There is a public interest in the prompt institution and prosecution of litigation before the Commission. Indeed the Act is designed with this as a feature. It follows that a successful litigant before the Commission is generally entitled to proceed on the basis that a decision in its favour will stand, in the absence of an appeal being filed within the time prescribed. There is a discretion in the Commission to extend the time for filing an appeal. Such a discretion will not however be lightly or automatically exercised, particularly if the application is made after the time for appeal has expired. The fact that there will be no prejudice to a respondent party by an extension of time being granted is one factor which the Commission will take into account, but will not be solely determinative of the matter. In this context the cost and inconvenience of litigation not brought within the limitation period prescribed is a matter to which regard may properly be had when an application for extension of time is made. The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to all the circumstances before it."

42 In applying those principles to this matter I note some particular points of emphasis: 1. The exercise of the Commission's discretion to extend time to appeal is not constrained by the requirement of some court rules that special circumstances be demonstrated: Brady v Kennedy t/as "Sardines" (at 264). 2. There is a wide discretion to extend time where the justice of a particular case requires that outcome: Brady v Kennedy t/as "Sardines" (at 264); Tadic v Beslic at [22]. In exercising the discretion to extend time the Commission may consider a number of factors, such as the length of delay (see Jess v Scott (1986) 12 FCR 187 (at 195); Gallo v Dawson (1990) 64 ALJR 458 (at 481); and Salter Rex & Co v Ghosh [1971] 2 QB 597 (at 601); whether any prejudice would be suffered by the respondent by reason of the granting of the extension of time (see Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 (at 6) and LEP International v Caine (at [57]); whether there is a reasonable explanation for the failure to file the appeal within time (see LEP International v Caine (at [50]); whether the delay was due to an error or mistake by a legal advisor (see Brady v Kennedy t/as "Sardines" (at 269) and Skelly v Prouds Jewellers (at 6) and the prospects of the appellant succeeding in the appeal (see WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (at 299). However, the ultimate exercise of discretion is governed by the requirements of justice in a particular case. In Skelly v Prouds Jewellers it was held (at 6): "The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to the circumstances before it."

43 Accordingly, whilst I shall consider the principles agreed to by the parties and referred to earlier in the decision, in determining the application to extend time I shall ultimately be governed by the requirements of justice in this particular case.

44 The applicants' case for the extension of time substantially relied upon explanations for the delay, clearly a relevant factor to the exercise of the Court's discretion: WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (at 304) and Gallo v Dawson (at 481). This requires a consideration of the extent of the period of lateness in light of the reasons given for the delay: Gabriel Weisser v Spur Group Pty Ltd (unreported, Walton VP, 2 September 2002, Matter No IRC 3744 of 2002).

45 In this case, the delay in filing the application for leave to appeal and appeal was almost one month after the period allowed by the rules in which to file an appeal. In the application to extend time the applicants proffered the following grounds in support of their application to extend time: 1. The First Appellant was in Berridale at the time judgement was handed down and was not contacted until two and a half weeks after the judgement was handed down.

2. Attempts to forward a copy of the judgement to the First Appellant were not successful and the First Appellant did not read the judgement until after the appeal period had expired.

3. Upon perusing the judgement, the First Appellant immediately organised a conference with Counsel and provided instructions for the lodgement of the appeal.

4. The First Appellant is the Director of the Second Appellant and therefore the Second Appellant, being a Company was not in a position to lodge and (sic) appeal until the First Appellant had read the judgement.

46 It is appropriate at this juncture to make the following preliminary findings with regard to the grounds quoted above: 1. The undisputed evidence in the proceedings was that judgment was handed down on 5 June 2002 and the applicant subsequently had a conversation with his solicitor as to the judgment on 20 June 2002. Accordingly the first applicant was "contacted" two weeks and one day, and not two and a half weeks, as contended, after judgment.

2. In view of the concession made by Mr van Aalst as to the date the first applicant read the judgment, namely the 25 June 2002, the reason provided by the applicants in paragraph 2 of the application for an extension of time is clearly incorrect. I note that during the course of the proceedings this contention was not pursued by the applicants.

3. The contention made in paragraph 3 of the application is not, in my view, supported by the evidence. The first applicant conceded that he read the judgment on 25 June 2002. He gave unchallenged evidence that he had a conference with counsel on 27 June 2002 and instructed his solicitors on 28 June 2002 to prepare the appeal document. In light of this evidence, I do not consider that it can be said that the first applicant, on reading the judgment, "immediately" organised a conference with counsel and instructed the lodgement of the appeal. 47 In submissions the applicants refined the reasons advanced as to why their application to extend time to appeal should be granted. I summarise those submissions as follows: 1. The failure to file the appeal within the prescribed period was primarily due to the first applicant having been uncontactable at his Berridale property from 6 June 2002, when Mr Giugni received the judgment, until the first applicant's telephone conversation with Mr Giugni on 20 June 2002. The first applicant was therefore not aware of the judgment during the period when he would otherwise reasonably be expected to have been obtaining legal advice and preparing for an appeal.

2. The first applicant proceeded expeditiously from 20 June 2002, when he was informed of judgment being delivered, to 28 June 2002 when he instructed his solicitor to prepare an application for leave to appeal. The draft application was sent to the first applicant shortly thereafter on 3 July 2002. In written submissions the applicants contended that given that the first applicant proceeded expeditiously from the time he was informed of the judgment, a strict application of the 21 day period would operate as an "instrument of injustice": Gallo v Dawson (at 480).

3. The period from 3 July 2002 (when the first applicant received the application) to 10 or 11 July when the first applicant instructed Mr Giugni to file the appeal is not "such a great distance in time" to constitute prevarication on the part of the first applicant. Further, it was submitted that the first applicant relied upon his solicitor to "attend to obtaining the preparation of the Applications and their filing."

4. The delay in filing the application from 11 July 2002 to 25 July 2002 was due to "solicitor's error." The law with regard to "solicitor error" had moved, it was contended, from being an unacceptable ground to constituting a "special reason" for failure to institute an appeal within time. The applicants relied upon the judgment of the Full Court of the Federal Court in Jess v Scott . The Full Court in Jess v Scott referred (at 194) to the judgment of the Court of Appeal in Morris v Public Transport Commission of New South Wales (unreported, Moffitt P, Glass and Mahoney JJA, NSWCA, 28 May 1984) which, it was contended, held that the blamelessness of the applicant has to be considered against the "solicitor's error." Although s 189 of the Act does not contain the term "special reasons" referred to in O52, r15(2) of the Federal Court Rules considered in Jess v Scott , the applicants submitted that the principles applied in Jess v Scott in relation to "solicitor error" should apply in this jurisdiction.

48 According to the respondent, the applicants did not have an adequate explanation for their failure to file the appeal within time. The respondent's submissions are summarised as follows: 1. The applicants failed to take appropriate and timely action to ensure that they obtained and considered the judgment; to arrange a conference with their legal representatives to receive advice with regard to a possible appeal; to give instructions to prepare and file an appeal; to ensure that the appeal was filed in accordance with their instructions; and to generally protect their rights with regard to a possible appeal.

2. The applicants' failure to take appropriate and timely action was not attributable to any fact or circumstance beyond their control or due to other pressing commitments which prevented them from attending to the appeal. At all times the applicants had access to legal advice.

3. In relation to the applicant's submission as to "solicitor error," representative error in itself is not a ground for granting an extension of time. The Commission must also consider whether the applicants took any active steps during the relevant period: Coyne v Ansett Transport Industries (Operations) Pty Ltd (unreported, Industrial Relations Court of Australia, Marshall J, 9 May 1996); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (at 348). It was submitted that the applicants failed to take active steps required to ensure the appeal documents were filed in the Commission in a timely manner. From 20 June 2002 to 11 July 2002 the applicants did not address the filing of an appeal with any urgency. During the period 12 July 2002 to 25 July 2002 the applicants took no steps to ensure that the appeal had been filed in accordance with their instructions.

49 In their submissions the applicants and the respondent effectively referred to four distinct periods associated with the delay, namely the period from the handing down of judgment to the telephone conversation on 20 June 2002 (the first period); the period between 20 June 2002 and the first applicant's instructions to his solicitor on 28 June 2002 to prepare an application for leave to appeal (the second period); the period from 28 June 2002 to the applicants' instructions to file the appeal (the third period) and the period between those instructions and the actual filing of the applications at the Commission (the fourth period). I shall deal with each period of delay seriatim (although ultimately the extent of and the various reasons for the delay need to be considered in their entirety).

50 As to the first period of delay, the first applicant had not made any arrangements with his solicitors prior to leaving for Berridale which would enable them to contact him in the event of judgment being handed down in his absence. It was the applicants' submission that the failure to file the appeal within the twenty-one day period "primarily" resulted from the first applicant not being aware of the judgment and being out of contact with his solicitor during this first period.

51 The respondent submitted that, given the proceedings before Marks J had concluded on 12 April 2002, it would have been reasonable for the first applicant to have anticipated that a judgment may be handed down while he was at Berridale, yet he made no arrangements to be contacted by his solicitors in that event. It is clear from his evidence that the first applicant was aware at the conclusion of the proceedings that his application may not have been successful. I accept that the first applicant was not aware of a date having been fixed for judgment or that judgment had been delivered, but I agree with the respondent's submission that it could have been reasonably anticipated by the first applicant that a judgment may be handed down during the period he was at Berridale. Thus, I find that the first applicant absented himself, and was not in contact with his solicitors, at a time when the outcome of the proceedings at first instance may have required him to act.

52 However, I do consider that the first applicant's lack of contact with his solicitors until 20 June 2002 is a partial explanation for the failure to file the appeal within the prescribed period. It is somewhat diminished, as I have noted above, by his failure to make arrangements for his solicitors to contact him in the event of judgment being handed down in his absence. The importance of the first period of delay is not so much the delay in itself, or the extent to which it can be explained, but rather the effect that it should have had on the applicants and their legal advisors: given that it had occurred, they should have been galvanised to act quickly within the next six days.

53 In considering the applicants' submission that the first applicant proceeded "expeditiously" during the second period of delay, conclusions which may be drawn depend to some extent upon the advice the first applicant received from his representatives during this period as to both the outcome of the proceedings at first instance and the time limit for filing an appeal. In relation to the telephone conversation on 20 June 2002, I have previously found that Mr Giugni informed the first applicant that "overall we had lost the case and there were no compensatory orders." Arrangements were made to send a copy of the judgment to the first applicant at Berridale. There was no evidence to suggest that Mr Giugni informed the first applicant on that occasion of a time limit for filing an appeal.

54 The first applicant did not receive a copy of the judgment in Berridale and he subsequently returned to Sydney to obtain the judgment. Although the evidence was inconsistant, I have previously referred to Mr van Aalst's concession that on 25 June 2002 the first applicant received and read the judgment and had a telephone conversation with Mr Giugni. I have also previously found that during this telephone conversation Mr Giugni informed the first applicant of the time limit for filing an appeal. On 25 June 2002, a conference with counsel was arranged for 27 June 2002.

55 It is not clear on the evidence, given that the time for filing an appeal was to expire the next day, why it took from 25 June 2002 until 28 June 2002 for the first applicant to instruct his solicitors to prepare the appeal documents. I note the explanation offered by the first applicant, namely that he wished to obtain advice from counsel as to his position (which he did on 27 June 2002) prior to making a decision as to whether to appeal, but no explanation was given as to why the conference was not arranged on 25 June 2002 as a matter of urgency to take place either that same day or at the latest the following day. Had that occurred, it is conceivable that the appeal application could have been filed within the prescribed time period or very close to that date.

56 I turn now to the third period of delay which followed the conference with counsel. The draft application was prepared by counsel and forwarded to the first applicant on 3 July 2002 for his comments and instructions. The applicant made alterations to the draft application. It was then resubmitted to the first applicant on 10 July 2002 and he gave instructions to file the application on 11 July 2002. It should have been obvious to the first applicant and his advisors on the 27 June 2002 that there was a real need to move with the utmost urgency. However, no such urgency was demonstrated by either the first applicant or his advisors in their approach to the matter. No explanation was offered as to why it took five days to prepare and provide to the first applicant the draft appeal application. Mr van Aalst suggested during oral submissions that this was not a great length of time. In an abstract sense, that submission may be correct. In circumstances where, however, the time for filing the appeal had already expired, I do not consider this to be an entirely reasonable explanation for the delay. As I have observed, it indicates a lack of any sense of urgency in the preparation of the document. Steps should have been taken to file the application on 3 July 2002 or, at the latest, 4 July 2002, even if the application was not at that stage as fully particularised as may otherwise have been the case.

57 Of more significance is the first applicant's role in the delay which took place during the period 3 July 2002 to 11 July 2002. Mr van Aalst acknowledged during his oral submissions that it took some time to finalise the draft application. In their written submissions the applicants contended that this delay was due to the "approval of Mr Cavacuiti." I have previously found that amendments were made to the draft application between 3 July 2002 and either 10 or 11 July 2000 and that the amendments were initiated by the first applicant. These amendments were made over a period of seven days when the first applicant was aware that the time limit for filing the appeal had already expired, and accounted for a reasonable component of this period of delay.

58 Mr Barton attempted to elicit an explanation for this delay from the first applicant. During cross-examination he put to the first applicant that he was not working "under any urgency" in finalising the appeal process. The first applicant responded that he was relying upon his advisors. He "had to receive information from them, advice from them, and I'd either agree with it or not." A little later during his cross-examination he testified that "at that particular moment in time I didn't realise there were any time limits." This latter response was clearly false in view of the first applicant's own evidence during re-examination that he had been told of the time limit for filing an appeal at the conference with counsel on 27 June 2002.

59 Mr van Aalst submitted that from the 28 June 2002 it was "in the hands of Austin Giugni to get the document filed quickly". Although it may be possible to infer that Mr Giugni did not deal with the application in a timely manner during this period it is also reasonably clear that he was hindered from doing so to some extent from 3 July to 10 July 2002 due to the amendments sought by the first applicant. One would have expected the draft application to have been prepared earlier than the 3 July 2002, and thereafter the first applicant was obliged to ensure that the appeal application was finalised and filed in a diligent manner. I find that he failed to do so. At a time when urgency was required the first applicant demonstrated an extraordinary lack of vigour in taking steps to have the appeal filed as soon as possible. Indeed, from 25 June 2002 to 10 July 2002 there is no evidence to suggest that the applicants pressed their representatives to move with expedition either to meet the known time limit or to have the appeal filed as soon as possible thereafter.

60 The last period of the delay occurred after the applicants gave instructions to file the application for leave to appeal and appeal at the Commission. The reason given by the applicants for this delay was error on the part of Mr Giugni, not attributable directly to them. In written submissions the applicants asserted that their "blamelessness" has to be considered "against the solicitor error."

61 The respondent asserted that during this period the applicants failed to take any steps to ensure that the appeal had been filed in accordance with their instructions. The applicants, in turn, submitted that the first applicant had relied upon his solicitor to attend to the filing of the documents. Whilst I acknowledge that, in view of the earlier delays, the first applicant bore some responsibility during this final period to ensure that the documents had been filed in accordance with his instructions, I consider overall that it was not unreasonable for him to rely upon the assumption that his solicitor would act regularly in attending to the filing of the documents.

62 As to the third and fourth periods, I observe that the Court may, in the exercise of the discretion to extend time, excuse the error of the applicants' solicitor: Salter Rex & Co v Ghosh (at 601); Gatti v Shoosmith [1939] Ch 841 (at 846); Jess v Scott (at 195-6); Skelly v Prouds Jewellers (at 6).

63 In the context of "special reasons" justifying the grant of leave to appeal out of time, pursuant to O52 r15(2) of the Federal Court Rules, in Jess v Scott the Full Court of the Federal Court stated (at 190) that: The modern view is that "a failure by a solicitor to take the proper steps could itself be regarded as establishing sufficient cause for an extension of time": Martin v The Nominal Defendant (1954) 74 WN (NSW) 121 at 125, per Walsh J.

64 The Full Court in Jess v Scott then referred to Gatti v Shoosmith , in which the Court of Appeal considered the effect of a solicitor's mistake upon an application for a grant of leave to appeal after the time for appeal had expired. The case involved consideration of a rule which had been amended so as to not require the grant of "special leave" and Greene MR stated (at 845): On consideration of the whole matter, in my opinion under the rule as it now stands, the fact that the omission to appeal in due time was due to a mistake on the part of a legal advisor, may be a sufficient cause to justify the Court in exercising its discretion. I say "may be", because it is not to be thought that it will necessarily be exercised in every set of facts. Under the law as it was conceived to be before the amendment, such a mistake was considered to be in no circumstances a sufficient ground. What I venture to think the proper rule which this Court must follow is: that there is nothing in the nature of such a mistake to exclude it from being a proper ground for allowing the appeal to be effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case. There may be facts in a case which would make it unjust to allow the appellant to succeed upon that argument.

The discretion of the Court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of the particular case, that discretion should be exercised.

65 The respondent submitted that representative error in itself is not a ground for granting an extension of time and that the Court must also consider whether the applicants took any active steps during the relevant period. To an extent, this submission (and the applicants' submission to which it is a response) is misguided - consideration of solicitor error is relevant to the significance of the delay, which is one factor only in determining whether to grant leave. As mentioned earlier, the court must consider all relevant circumstances in order to evaluate the requirements of justice. These circumstances will include the prospects of success of the appeal, injustice and prejudice. At this point, the Court is assessing the dilatory impact of the conduct of the applicants' legal advisors, and the extent to which responsibility should be apportioned between client and professional.

66 In Hunter Valley Developments Pty Ltd v Cohen in the context of an application for extension of time under s11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) Wilcox , J noted (at 351): First, although the fact that a relevant failure is the fault of the solicitor for a party rather than the party himself does not in itself amount to sufficient cause to excuse the delay "the blamelessness of the claimant and the responsibility of his solicitor is very material": see Sophron v. The Nominal Defendant (1957) 96 CLR 469 at 474 . It would be erroneous to treat the fault of the solicitors as if it were the direct default of the client.

67 Coyne v Ansett Transport Industries (Operations) Pty Ltd involved the review of a Judicial Registrar's decision to extend the time for filing an application under s170EA of the Industrial Relations Act 1988. The application, which sought the remedy of reinstatement in respect of an alleged unlawful termination of employment, had been filed five months out of time. Marshall J found that the blame for two of the five months of delay was attributable to the applicant delaying seeking advice from a lawyer and the remaining three months of delay was referrable to the applicant's solicitors. His Honour took into consideration the conduct of the applicant in finding that there was no acceptable explanation for the delay. Marshall J stated: However, as Wilcox J made clear in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 351, a delay by a solicitor although not necessarily to be treated as the direct delay of a client is not necessarily a sufficient basis to excuse the delay in bringing an application. Given the initial delay in the applicant's raising the matter of his termination of employment with his solicitors, it is my view that such inertia would not have enlivened the solicitors to the urgency of the matter. Therefore, some blame should be visited upon the applicant for the slow reaction of his solicitors.

Taking all of the above matters into account I am far from satisfied that there is an acceptable explanation for the delay. This factor supports Ansett's position.

68 Clearly, modern judgments have qualified the traditional position that failure on the part of solicitors in relation to limitation periods (even if due to negligence) will rarely persuade a court to exercise its discretion to extend time. However, the qualification is limited. The analysis of Hunter Valley Developments Pty Ltd by Marshall J in Coyne v Ansett Transport makes it clear, in my view correctly, that the explanation of solicitor's delay must be tempered by any contribution by the applicant, for example, dilatory giving of instructions or seeking of advice. In applying Coyne v Ansett Transport to this jurisdiction it should be borne in mind that this restriction upon the explanation of solicitor error was introduced in legislative circumstances more persuasive of extending time than the Act under present consideration. The time limit considered in Coyne (s170EA of the Industrial Relations Act 1988 (Cth) restricted first instance applications to the Court for a remedy in respect of termination of employment to 14 days from the date of notification of termination. Alternatively, an application may be made "within such further period as the Court allows on an application made during or after those 14 days": s170EA(3)(b). There is no fetter to the discretion to extend time within the Industrial Relations Act 1988 (Cth). By way of contrast, s189 of the Act regulates the extension of time for an appeal, the merits having already been considered at first instance.

69 In the present case, although there is a partial explanation for the first period of delay, it is necessary to determine whether there is a satisfactory explanation for the entire delay, taking into account any contribution by legal advisors for which the applicants could not be considered responsible, such as the fourth period. As I have noted, the occurrence of the first delay should have enlivened the prosecution of the appeal, instead of which matters proceeded at a fairly relaxed pace. Although the applicants sought to blame the third period of delay on their solicitor, I have already observed that he was in fact hindered, in part, by the applicants. Although I am not satisfied that there is an acceptable explanation for the delay, when viewed in its entirety and in the context of the applicants' general approach to the appeal, a delay of one month is a relatively moderate period of delay.

70 Whether the respondent will suffer prejudice by the granting of an extension of time is not determinative, and only one factor to consider in considering such an application. The cost and inconvenience of litigation brought outside a prescribed limitation period should also be considered : Skelly v Prouds Jewellers (at 6).

71 The respondent did not submit that it had been prejudiced by the delay but it did contend that there would be an "injustice" if the extension of time to appeal were allowed. As the matter stands, it was submitted, the applicants did not have the right to bring their application for leave to appeal and appeal. If the extension were granted, the respondent would incur further legal costs, which would be significant, and which in all the circumstances it should not have to incur.

72 In the exercise of the Commission's discretion to determine whether to extend time it is necessary to consider the applicants' prospects of succeeding in the appeal: WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (at 300). In Tadic v Beslic , Wright , J, President, found that an application for the extension of time should be refused on the basis that the prospects of the appeal succeeding were extremely limited, and it was unlikely that leave to appeal would be granted.

73 The respondent, in written submissions, argued that an assessment of the prospects of an applicant succeeding in an appeal necessarily requires the Commission to assess the prospects of the applicant obtaining leave to appeal pursuant to s188 of the Act. This would introduce consideration of whether the matter is of such importance that, in the public interest, leave should be granted. In support of this proposition the respondent referred to the following passage in the judgment of Wright , J President in Tadic v Beslic at [26]: There must also be regard to the nature of the proceedings at first instance. Considered in that way, it could appropriately be held that the prospects of the appeal succeeding are extremely limited and indeed could properly be said to come to close to a futility. It is also unlikely that the necessary leave to appeal would be granted. In my view, those conclusions as to the prospects of success of the appeal and the very limited prospects of the application for leave to appeal represent, in terms of the applicable principles, a further basis on which the application should be refused. (See also De Luxe Cab Company Limited (formerly known as Deluxe Red and Yellow Cabs Co-operative Trading Society Limited) v Grenside per Wright, J President (at 389.3)).

74 The applicants submitted that is not appropriate in an application to extend time pursuant to s189 of the Act to make a determination as to the "public interest," other than to be satisfied that there is an arguable case, "which is a different and lesser threshold from that required under s188(2)". According to the applicants, whether the matters raised in the application for leave to appeal are of such importance that in the public interest leave should be granted "can only be determined by the Full Bench and therefore there must be a lesser test to determine that issue". Section 189 does not expressly require there to be any opinion "to be expressed by the Full Court or the Commission about 'the matter being of such importance'" and therefore s188(2) need not be satisfied in an application pursuant to s189. If the Court is satisfied with the explanation for the delay, it was contended, the "test for the second limb for an extension of time has to be whether the application for leave to appeal is arguable."

75 There is no dispute that the Court is required to consider the applicants' prospects of success in the appeal. In appeal proceedings under this Act, where an appeal from a judgment under s106 does not lie as of right, a consideration of the prospects of success of an appeal will necessarily involve, in my view, a consideration as to whether the applicant could be expected to obtain leave to bring that appeal pursuant to s106 of the Act. Consideration of the merits of an appeal may bear upon the question of leave but it is not determinative of that issue, so that consideration of an application under s189 will not be confined to the existence of an arguable case on the merits of the appeal. I follow the judgment of Wright J in Tadic v Beslic in this respect .

76 In the present case, (other than submissions), the applicants have failed to place any material before the Court to clarify the grounds of the appeal, or assist a determination of the prospects of the appeal. As I have already noted, no appeal books have been filed. Nor was any primary material handed up during argument. Accordingly, I am bound to proceed on the face of the judgment at first instance.

77 The applicants, in their application and in submissions, gave the following grounds for leave to appeal and in support of the appeal: 1. That His Honour failed as a matter of principle to consider or deal with the evidence concerning the effect on the Appellants of the Respondent's ultimatum that they execute the said draft Dealer Agreement in circumstance where the Appellants could not have met the obligations imposed upon them thereunder by trading (even on an interim basis) from the Polo Flats premises for which there was no security of tenure.

78 During oral submissions Mr van Aalst expanded this submission by contending that Marks J failed "to make findings as to a matter of law" as to the consequences of the first applicant not executing the draft dealer agreement, namely, "did the arrangement thereby become unfair?"

79 The grounds enumerated in the application continued:

2. It is important in the public interest that: (i) the determination made under s106 be in accordance with the evidence and in this case the Commission in Court Session failed or appeared to have failed to have in any way considered in the judgment the terms or conditions of the said final draft Dealer Agreement and the effect that those conditions would have had upon the Appellants; (ii) that the errors are such that the decision of the trial judge ought to be interfered with on appeal as they are clearly and demonstrably wrong on the evidence before His Honour; (iii) that this Court is in as good a position as His Honour was to decide upon such inferences as ought to be drawn from the undisputed facts; (iv) the errors of fact and law in the judgment of the Trial Judge ought to be corrected; and (v) that His Honour failed to properly exercise the discretion conferred upon him. 3. That His Honour was in error by failing to find that the arrangement (as found in paragraph 58) became unfair as a consequence of the Respondent in or about 19th or 24th November 1998 by the inclusion in the draft therein of paragraphs 26, 28, 29 and 30 in Part B of the proposed Commercial Dealer Agreement Cooma by reason of:

(a) those conditions not having been included in or forming part of the conditions of the draft Dealership Agreement given to the applicants by Bernard Mark Smith on about 17 April 1998; and

(b) that the applicants would not be able to comply with condition 26 in the proposed Dealer Agreement by reason of the acknowledged inadequacy of Polo Flats; and

(c) that the respondent knew that save for the McGee site there were not other suitable sites available at that stage from which to conduct the franchise in accordance with the proposed Dealer Agreement ; and

(d) that the respondent knew that the McGee site was available but failed to change its opposition to that site. 4. His Honour ought to have found that the parties had conducted themselves since 17 April 1998 upon the assumptions:

(a) that the representations in the Cooma Capitalisation Report were reasonably accurate forecasts of the financial investment be made by the Appellants; and

(b) that the draft franchise agreement provided to the Appellants by Mr Smith in April 1998 contained the conditions upon which the parties would become bound for the Toyota Dealership for the Cooma district upon; and

(c) that the Respondent would adhere to the special conditions adopted by the parties on 17 April 1998 in particular (but not limited to) clause 17 and not cause anything to be done whereby the Appellants could not achieve the sales target referred to therein.

(d) that His Honour was in error as a matter of principle by his failure to find that by the Respondent's insistence that the Appellant enter the said Dealer Agreement without making provision therein for the circumstance that as at 24 November 1998 there was no site available suitable for the purposes of the respondent within the budget in the Cooma Capitalisation Report from which the applicant could perform its obligations under that proposed Dealer Agreement.

80 A cursory review of the grounds extracted above makes it clear that the applicants' complaint hinges upon the so-called "ultimatum that they execute the said draft Dealer Agreement" and the deleterious consequences of meeting that ultimatum. At no stage did the applicants advise how this fundamental complaint could be reconciled with the respondent's "Without Prejudice" letter, sent contemporaneously with the "ultimatum", inviting "without prejudice" discussions to achieve a mutually beneficial resolution of the matter, nor with the respondent's subsequent unanswered telephone calls and invitations to discuss matters. In the absence of any other primary material, it is difficult to see how the respondents could be described as issuing an impossible and inflexible ultimatum. From an entirely preliminary assessment then it would appear to be open to Marks J to decline to make a finding of unfairness in this regard.

81 During oral submissions Mr van Aalst conceded that there was no actual ground of appeal stipulated in the application for leave to appeal and appeal seeking relief in relation to the exercise of discretion by Marks J to decline to make any orders consequential upon his finding (at paragraph 90) that the arrangement was unfair. This would appear to be a substantial basis for complaint, and its absence is all the more noteworthy given the additional time that the applicants have had to finalise the appeal. Mr van Aalst conceded that such a ground should have been included.

82 The submissions in the applicants' written reply, as to why the applicants had an "arguable case", are extracted below: (a) the matters pleaded in paragraph E(i) to (iii) and the Reasons set out in G and H [of the application for leave to appeal and appeal] raise the issue as to whether the ultimatum of 4 December made by the Respondent to sign the Dealer Agreement was unfair having regard to the undisputed fact that the obligations imposed by that Agreement on the applicant could not be performed, from Polo Flat; and

(b) having regard to His Honour's finding the Respondent's representatives did "not advise Mr Cavacuiti that the McGee premises would have been considered as a suitable premises" (paragraph 90 page 34) constituted unfair conduct; and

(c) there is an inherent inconsistency between His Honour concluding that the applicants failed to establish unfair conduct (at paragraph 75 page 29) and yet during the period between 19th November 1998 and 4th December 1998 (when the CME premises were not available) he made the finding in relation to the failure to disclose its attitude with regard to the McGee premises, that the Respondent was engaged in unfair conduct;

(d) those findings could not stand together; and further

(e) the application for leave to appeal has a reasonable prospect of success because it is arguable that the conduct of the Respondent was unfair by reason of the demand or ultimatum by the Respondent on 4th December 1998 having regard to: [various matters are then set out].

83 Leaving aside the bulk of the submissions, which pursue the theme of the ultimatum, the applicants' submissions in reply introduce a further ground of appeal, paragraph (c), alleging an inherent inconsistency in the judgment.

84 The respondent submitted that the applicants had limited prospects of obtaining leave to appeal for the following reasons: 1. The Full bench of the Commission may only grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. Leave to appeal will not be lightly or automatically granted: Perrott v XcelleNet Australia Limited (1998) 84 IR 255 [at 265].

2. The fact that an appeal may involve factual circumstances concerning only the immediate parties does not in itself preclude leave to appeal being granted. The issues on appeal must nevertheless have implications or relevance beyond the immediate parties. For leave to be granted, an appeal must raise substantial and important considerations.

3. The provisions of the Act in relation to appeals give primacy to first instance decision making in a manner not found in earlier industrial legislation in New South Wales: Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385.

4. The appeal in this matter does not raise any matters of public interest. The grounds of appeal do not raise any questions going to the jurisdiction of the Commission. The appeal is confined to questions of findings of fact, the weight given to those findings of fact and to the exercise of discretion whether to award compensation.

5. There is no reasonable basis on which the applicants can assert that his Honour made a legal error or acted upon an erroneous principle, gave weight to irrelevant matters, failed to give sufficient weight to a relevant matter, made a mistake as to the facts or assert that his Honour's decision was plainly unreasonable or unjust. Mere dissatisfaction with the outcome of a discretionary decision does not justify the granting of leave to appeal.

85 In relation to the applicants' prospects on appeal (should leave to appeal be granted) the respondent submitted that the applicants were seeking to appeal against the exercise of discretion. The respondent contended that the applicants had failed to put forward an arguable case that his Honour's discretion miscarried in any respect and had little or no prospect of persuading the Full Bench of any such miscarriage. Nor had the applicants identified in the grounds of appeal any appealable error.

86 As mentioned earlier, following Tadic v Beslic , the issue of leave to appeal is relevant in considering the applicants' prospects of success in the context of an application to extend time to appeal.

87 The principles which apply to the granting of leave to appeal were settled by the Full Bench in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380, which was applied in Sykes v Alan East Pty Limited (Formerly National Meat Supplies Pty Ltd) [2000] NSWIRComm 1130; Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143; Llandilo Staircases Pty Ltd v WorkCover Authority of New South Wales (Inspector Parsons) (2001) 104 IR 204 and Mitchforce v Starkey & Anor [2002] NSWIRComm 85. In Knowles v Anglican Church Property Trust (No 2) the Full Bench stated (at 381): We have determined that the Commission should not grant leave to appeal pursuant to s188 of the Act. In doing so we do not propose to depart from the general policy and practice of the Commission not to give reasons for the refusal of leave. However, we do propose to make some observations as to the conduct of appeals where the grant of leave is required which are apposite in the present matter.

First, as a Full Bench of this Commission noted in Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265, leave will not be lightly or automatically granted. The statutory scheme makes clear that the legislature intended to restrict access to appeals to appropriate cases meeting the public interest test stated in s188(2)…

Thirdly, it will be relevant to consider whether an appeal raises substantial and important considerations. The issues raised by an appellant as to the public interest considerations under s188(2) need to be evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application.

88 In proceedings instituted pursuant to s106 of the Act, a finding of unfairness involves questions of mixed fact and law. In reviewing such a determination an appellate Court will give "respect and weight" to the conclusions of the trial judge: Port Macquarie Golf Club Ltd v Stead & Anor (1996) 64 IR 53 at 59, which was applied by the Full Bench in Mitchforce Pty Limited v Starkey & Anor [at 32]. However, mere challenges to findings of fact or the inferences to be drawn from them less frequently attract the grant of leave to appeal: Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4], which was considered and applied by the Full Bench of the Industrial Relations Commission in Abdullah Al-Shennag v Bankstown City Council Civic Services Group [2002] NSWIRComm 150; see also Ward v Mobile Innovations Limited [2002] NSWIRComm 287 at [8].

89 Were it not for the applicants' suggestion of inherent inconsistency, I would be minded to accept the respondent's submissions that the applicants had limited prospects of obtaining leave to appeal. I agree that the balance of the applicants' case fails to disclose any error of law or principle and no substantial or important considerations have been raised. As a purely preliminary view, I consider that the applicants would be unlikely to succeed in relation to the challenge to findings concerning 'fairness' in the judgment at first instance and what appears to be a core complaint, the discretionary decision to refrain from making monetary orders (based on certain findings of fact).

90 However, it must be said that the contentions as to inherent inconsistency may have greater prospects of attracting leave and are arguable on the appeal proper. It is arguable that the two findings are inherently inconsistent: firstly, unfair conduct by failure to advise that the McGee site may be acceptable and secondly that there was no unfair conduct with respect to the arrangement (an arrangement evidenced by a course of conduct including attempts to find a suitable site). Without the benefit of any appeal papers, books, primary material, or submissions from the respondent on this point (other than generally as to the question of leave) I can do no more than observe that, on the face of the judgment, the applicants have raised an issue which changes their prospects of success from very unlikely to possible. I will say that on the face of the judgment, in view of the findings relating to the parties' communications and the stage negotiations had reached, it appears to me that any inherent inconsistency may also be resolved against the applicant, resulting in a finding of no unfairness. Nonetheless, it is not open to the Court in an extension of time application, without the benefit of all the relevant material and full argument, to make any further evaluation as to that aspect of the matter.

91 I consider that the delay in bringing the appeal has not been fully explained by the applicants and is therefore of some concern. However, there are reasonable explanations for part of the delay (including 'solicitor error') which moderate the significance of this consideration. There is no relevant prejudice identified by the respondent and there appears to be some prospects for success on the appeal in at least one aspect of the applicant's case.

92 The guiding principle in relation to applications brought under s189 of the Act is that the Court should do justice between the parties and ensure the proper administration of justice: Tadic v Beslic at [22] applying Van Rooy Machinery Pty Ltd v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436. I consider that there is a tangible basis for concluding that there may arise an injustice to the applicants in this matter if an extension of time were not granted to them. Whilst the matter is finely balanced, the Court considers that, having regard to the guiding principle, an extension of time should be granted to bring the application for leave to appeal and appeal.

93 Pursuant to s189(1) of the Act, I order that the time for bringing the application for leave to appeal and appeal in this matter be extended so that the application meets the requirements of that section. The applicants shall pay the costs of the respondent of the application to extend time in a sum as agreed or, in default of agreement, as assessed.

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