Bartercard Ltd v Windjar Pty Limited

APPELLANT Ms V J J Webster of Counsel SOLICITOR Mr B A Burke Solicitor Bartercard Ltd Southport Qld LEGAL REPRESENTATIVES:

RESPONDENT Mr D M Bernie of Counsel SOLICITOR Mr H Duong Williams-The Law Firm

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter No IRC 4949 of 2000 BARTERCARD LTD v WINDJAR PTY LIMITED Application to extend time to appeal, leave to appeal and appeal against a decision of Justice Glynn given on 31 July 2000 in Matter No IRC 1514 of 1998.

1 The Court has before it today an application by Bartercard Ltd (the applicant) for an extension of time in which to file an application for leave to appeal and, subject to leave being granted, an appeal against a judgment of Glynn J delivered on 31 July 2000, in which her Honour made orders in favour of Windjar Pty Limited (the respondent). 2 Her Honour, in a detailed decision, dealt not only with the claim by the present respondent pursuant to s 106 of the Industrial Relations Act 1996, but also with a cross-claim by the applicant which, although filed on the first day of hearing, was dealt with without demur from the respondent because, as counsel has today informed the Court, it raised issues not dissimilar to those raised by the material which had, up to that point, been filed in the proceedings. 3 Her Honour dealt with the matters before her in a detailed judgment delivered on the date earlier referred to and made the following orders in favour of the respondent: The Court orders: (1) The interim licence agreement made between the applicant and the respondent around December 1996 is varied to provide that that agreement, in the event of breach or default, may be terminated 30 days after written advice has been given by one party as to a breach or default to the other party and that breach or default has not been remedied. (2) Bartercard shall pay to the applicant the sum of $35,000. (3) Interest is to be paid on that amount at the appropriate Supreme Court rates as from 26 March 1998 the date of filing of the application.

Her Honour made certain supplementary comments after pronouncing those orders in these terms: In coming to the above figure I take into account the items specifically referred to, even if not able, for the most part, to be quantified in any detail.

I do not accept the applicant's submission that the respondent was anxious to rescind any agreement to sell the Sydney North franchise for $75,000 with the applicant because similar brokerages were then selling for $125,000, and Bartercard had later sold the Sydney North brokerage for that amount. In my view, the respondent had taken considerable trouble to assist the applicant to try to satisfy the franchise fee requirements.

4 It is unnecessary to review all of the terms of her Honour's decision as to the claim under s 106. It is sufficient to note that her Honour held that the monies paid by the respondent to the applicant in the sum of $25,000 did not, on the evidence, sound in any tangible value in terms of any commercial or other benefit. 5 Her Honour considered also a number of other financial detriments which the respondent had submitted it had suffered, and her Honour discussed the varying evidence as to that issue and also as to some other aspects of the respondent's claim before her, including certain benefits which the applicant was said to have accrued to it as a result of events subsequent to the break-up of the arrangement between the parties. 6 In the result, it will be noted from the orders earlier set out and her Honour's comments in relation to them, that her Honour rejected a number of the substantial claims of the respondent and assessed the amount to be paid pursuant to s 106(5) of the Act on a broad basis. 7 Bearing in mind that the power to make an order under the s 106 when a contract has been declared wholly or partly void under s 106(3) is a power to "make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case", the approach adopted by her Honour, particularly having regard to the relatively small sum involved, did not, with respect, seem to be inappropriate and, more significantly, not one that was unavailable to her Honour. 8 As to the cross-claim, her Honour dealt with that claim in a slightly less detailed way than the substantive claim. Again, that is as would be expected since there was a considerable overlap in substance and in evidentiary terms between the claim and the cross-claim. 9 In the result her Honour did not accept the substantive case of the applicant which related to certain alleged misrepresentations to it by the respondent and, having held that the applicant failed on that issue, rejected the cross-claim. 10 The application in this matter was filed on 11 October 2000 in circumstances where, having regard to the way in which her Honour dealt with the matter and pronounced final orders in the proceedings on 31 July, it was filed well outside the time limitation in s 189 of the Act. Indeed counsel for the applicant accepted that it was filed 55 days out of time. 11 In support of the application counsel has read three affidavits, being affidavits of Brook Adrian Burke sworn on 11 October, 1 November and 14 November 2000. In those affidavits Mr Burke refers to the history of the matter, including the fact that the solicitor then instructed by the applicant had advised it that the time for filing an appeal was 28 days rather than the correct period of 21 days and that, having attempted to file the proceedings seven days out of time, the process was rejected. 12 He then describes the history of the events which followed and which show, in summary and I do not intend to set out the evidence in detail, that Mr Burke, as an in-house solicitor of the applicant, in effect took charge of the matter, ascertained the availability of counsel who had originally appeared for the applicant to draft the additional process which was necessary and having ascertained counsel's unavailability (counsel having also been unavailable earlier to draft a notice of appeal) briefed alternative counsel in Brisbane. 13 There appears to have been some difference between Mr Burke and the Sydney solicitor as to the terms of the material that should be filed in support of the application. This occurred on or about 22 September 2000 and led to some further delay and apparently also led to some disagreement and difficulties in resolving it. As earlier indicated the relevant documentation was not filed until 11 October 2000. That material is put forward, to quote the last paragraph of the final affidavit of Mr Burke, to support the proposition that: [T]he [applicant] has made its best endeavours to file the appeal within time and to subsequently file the application for leave to appeal out of time.

I accept that that paragraph was put in a purely formal way and it raises matters which the Court is required to decide. 14 The other factual matter which I should refer to is that it is clear from the evidence that the applicant has an in-house legal section and within that section there is not only Mr Burke but also another solicitor who figures in the evidence, Mrs Deirdre Payne. Ms Payne is described as the "Manager of the Legal Department" of the applicant. That evidence is relevant because of the applicant's submission (also set out in Mr Burke's affidavit) that: The applicant Bartercard's conduct itself is immune from criticism and that the responsibility for the failure to file the necessary appeal documentation within the time limit rests solely with the respondent's legal representatives.

15 In that respect, as I understand the submission, the reference to the "respondent's legal representatives" is a reference not only to the Sydney solicitor but also to the counsel in Brisbane. However, as to submissions which were more fully put today, the central basis of the submission is the situation with the Sydney solicitor. 16 I find, for the purposes of this application, that his submission is not made out. I refer in particular to the significant involvement of the applicant's in-house lawyers in the matter, but particularly Mr Burke, is such that it could not be properly found that its conduct was without criticism or that the responsibility for relevant failures rested solely on the legal practitioners outside the company's own personnel. 17 I also find that the applicant's material does not constitute an acceptable explanation for the delay of 55 days. As to decisions of the Commission where it has been recently held that an acceptable explanation has not been provided, reference should be made to the judgment in De Luxe Cab Company Limited v Grenside Limited (1999) 92 IR 384 at 390 - 391 and that of Hungerford J in De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at [21], a judgment affirmed on appeal last week: see De Simone Consulting Pty Ltd v Ison (No 2) [2000] NSWIRComm 269. 18 It is, I consider, appropriate to refer also to another aspect of this matter before concluding. This arises from the detailed submissions made on behalf of the respondent as to the strength of the appeal. 19 The general principles in relation to an application such as the present are now well settled. They can be found in a number of earlier decisions of this Court and of the Commission. Useful considerations are to be found in, for example, WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299 - 301 and LEP International Pty Limited v Caine (2000) 97 IR 35 at [41] and following. It is not necessary to repeat the relevant passages here. 20 However, it is also relevant, when referring to the judgment in LEP International Pty Limited v Caine to note that reference was made to certain particular considerations. For example, in para [51] this is said: The final consideration, as the authorities make clear, requires the Commission to take all relevant matters into account and endeavour to do justice between the parties having regard to all of those circumstances and those circumstances include 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.

21 Reference was also made in para [53] of that judgment to the limitations on appeals under the Act arising from the issues of leave and the other statutory provisions as to appeals which were referred to by the Full Bench in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 392 - 393. 22 In addition, as made clear in the principles referred to in the Parkes Council case, one of the matters which must be considered is the prospects of the applicant succeeding in the appeal (see the third numbered paragraph in the principles set out in the Parkes Council case). For this purpose I have been taken helpfully by both counsel to her Honour's judgment and the detailed consideration of relevant matters in it. It is also pertinent in this regard to set out and briefly refer to the notice of appeal which the applicant proposes to move on, should its application for extension of time be granted. The grounds of appeal are:

1. Her Honour erred in law and in fact in finding that the arrangement found to have been entered into between the applicant and the respondent was an unfair arrangement in terms of s 105(a) of the Industrial Relations Act 1996 because of a lack of specific terms. Her Honour erred because her finding is inconsistent with her earlier finding that the arrangement was governed by specific written terms.
2. Her Honour erred in law and in fact in finding that the arrangement found to have been entered into between the applicant and the respondent was an arrangement within s 106 of the Industrial Relations Act 1996. Her Honour's finding was in error because the arrangement was not one whereby a person performed work in any industry.
3. Her Honour failed to give reasons demonstrating the means by which she determined that the arrangement found by her Honour to have been entered into between the applicant and the respondent was an arrangement within s 106 of the Industrial Relations Act 1996.
4. Her Honour erred in law and in fact in determining that monetary orders should be made in favour of the applicant.
5. Her Honour's discretion exercisable pursuant to s 106 of the Industrial Relations Act 1996 miscarried.
6. Her Honour gave no reasons for her decision to order the respondent to pay to the applicant the sum of $35,000 plus interest. The reasons why leave to appeal should be granted are set out with the notice of appeal as follows:
7. The appeal requires a determination as to the scope of s 105 of the Industrial Relations Act 1996;
8. the appeal requires a determination as to the scope of s 106 of the Industrial Relations Act 1996;
9. a determination of the matters set out in paras 1 and 2 above are matters of importance and public interest. 23 Counsel for the respondent has made detailed submissions as to why the appeal should be considered to have prospects which would be rather generously described as "slim", and in doing so has extensively referred to the above grounds and reasons. I concur with the view stated, even leaving aside the submissions of counsel for the respondent that a number of matters sought to be raised as to leave to appeal and appeal were not argued or pressed at first instance. A review of her Honour's decision shows that her Honour's conclusions were clearly open to her. A number of them involve questions of judgment and assessment and it cannot be realistically said that there was any jurisdictional gap in her Honour's powers to make the orders she did. It was also pointed out that in any event no jurisdictional issue was taken in the proceedings at first instance. 24 Indeed, the decisions her Honour made which have been referred to and summarised earlier serve to demonstrate the entirely balanced way in which the rather complex issues before her Honour were dealt with. 25 This conclusion which derives from these findings is clear but it is relevant to note that the evidence before her Honour showed also that there was a failure of the present applicant to produce documents which should have been discovered in the proceedings in any event, and that this inevitably required her Honour to assess the amount payable under s 106(5) on a broad basis. These factors are, I consider, also matters to be taken into account in terms of the reference to para [51] in LEP International Pty Limited v Caine as the requirement to consider all relevant circumstances including the history of the proceedings and the conduct of the parties. 26 I consider that the extremely limited prospects of success on appeal, particularly when seen in the light of the discussion of the appeal regime of the Act in Antonakopoulos v State Bank provides an additional factor as to why the application should not be granted; also, when regard is paid to the whole circumstances of the matter, that, too, tells against the application. 27 I am reminded of the summation of authority on this issue to be found in the judgment of Hungerford J in Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436 at [33] where his Honour said: Essentially, it seems to me, in deciding whether or not to grant an application to extend time to appeal, comes down to the proposition of doing justice between the parties and ensuring the proper administration of justice.

Similar observations were made in his Honour's judgment in De Simone Consulting Pty Limited v Ison at [10]. 28 I consider that, on the basis of each of the three considerations earlier referred to, the application should not be granted. It may also be properly found that the application of Hungerford J's useful summation of authority would result in the application being rejected. The application for extension of time is therefore dismissed.

[Counsel for the respondent applied for costs. Counsel for the applicant accepted that it was difficult to resist the application.] 29 In the circumstances the Court makes the following additional order: That the applicant Bartercard Ltd, pay the respondent Windjar Pty Limited's costs of the application to extend time, including costs of the proceedings before the Court on 2 November and 29 November 2000.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.