Bonaccorso v General Forest Tree Surgeons - [2004] NSWIRComm 103 - NSWIRComm 1995 case summary — Zoe

NSWNSWIRComm

Bonaccorso v General Forest Tree Surgeons

[2004] NSWIRComm 103

Industrial Relations Commission (NSW)|1995-10-31|Before: Sams DP, Lawler VP

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1995-10-31

Before

Sams DP, Lawler VP

Source

Original judgment source is linked above.

Judgment (121 paragraphs)

[1]

CITATION : Zerafa and Fairfield City Council [2004] NSWIRComm 103 APPLICANT PARTIES : Sam Zerafa RESPONDENT Fairfield City Council FILE NUMBER: 5096 of 2003 CORAM: Sams DP Termination of employment - resignation of Council employee - application filed outside 21 day time limit - whether sufficient reason for delay - s85(3) of the Act - reason for, and length of delay - Union representation - applicant sought alternative representation - subpoenaed witnesses - disputed evidence - whether claim pursued with due diligence - hardship to employee or employer - conduct of employer - role of agent - prospects of success - whether applicant had a reasonable prospect of success - exercise of discretion. CATCHWORDS : Held, applicant's evidence unreliable and inconsistent - evidence of Union witnesses preferred - applicant told he did not have a good case - applicant advised to obtain alternative representation - claim not pursued with due diligence - significant delay - explanation for delay not accepted - no sufficient reason for delay - no hardship to employee - hardship for employer - resignation of applicant - second jurisdictional hurdle unlikely to be overcome - no reasonable prospects of success with merits of the case - criticism of agent - discretion declined to be exercised - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Workplace Relations Act (Cth) 1996 Bonaccorso v General Forest Tree Surgeons [2003] NSWIRComm 70 Brady v Kennedy t/as "Sardines" (1999) 91 IR 258 Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541 Brodie-Hanns v MTV Publishing Ltd (unreported, Industrial Relations Court of Australia, Marshall, J VI1725R of 1995, 31 October 1995) Clark v Ringwood Private Hospital (1997) 74 IR 413 Coghlan v Donald and Donald Advertising (unreported, Connor C, IRC01/6028, 15 July 2002) Green v Mayne Nickless t/as Armaguard (IRC2945 of 1997, 11 February 1998) Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia (NSW Branch) (1993) 51 IR 186 CASES CITED : Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139 Kornicki v Telstra Network Technology Group (unreported AIRC, Print P3168, 22 July 1997) Martin v Nominal Defendant (1957) 74 WN (NSW) 121 Mihajlovski and I R Cootes Pty Ltd (unreported, Lawler VP, AIRC U2002/1721) Sebastian v Roads and Traffic Authority of New South Wales (1995) 62 IR 190 Schwager v Church Stores [1999] NSWIRComm 485

[15]

18 July - The applicant contacted the Union delegate (Mr Brown) and said he wanted to pursue an unfair dismissal claim. A work colleague (Mr Dunn) told him to contact the Union solicitor. The applicant attempted to contact Maria Wilson, but was unsuccessful. 19 & 20 July - The applicant spoke to Mr Dunn about how to deal with the matter. 22 July - The applicant attempted to call Maria Wilson, but was told she was not in. The applicant spoke to Mr Dickson who told him that the Union needed the minutes of the disciplinary meeting before lodging a claim. Mr Dickson informed the applicant he had 21 days to lodge a claim and he should call Mr Smith (at the Council) to obtain the minutes. The applicant called Mr Smith, who promised to post him the minutes. 25 July - When he had not received the minutes, the applicant inquired again of Mr Smith. The applicant called Mr Dickson again, who told him to let him know when he received the minutes. 29 July - The minutes were received (post dated the same day) and the applicant phoned Mr Dickson and told him he would leave the document with Mr Brown at the Council depot. 1 August - The applicant phoned Mr Dickson, who confirmed he had the minutes and that he would commence the unfair dismissal claim. 5 August - The applicant phoned Mr Dickson, who told him that the Union did not think he had a good case because he had resigned. The applicant said he told Mr Dickson he wanted the claim to be lodged anyway. 6 August - The applicant phoned Ms Wilson and explained his case. He said she told him he had a good case in that he was pressured to resign. Ms Wilson told the applicant to contact Mr Stubbs. 7 August - The applicant called Mr Stubbs who indicated he would speak to Mr Dickson. 8 August - Mr Stubbs informed the applicant that the Union would not take his case. He asked Mr Stubbs to see if the Union would reconsider. The applicant phoned Mr Dunn to " whinge " about being mucked around by the Union. Mr Dunn told him to get his own solicitor. The applicant also spoke to Ms Wilson who became angry and told him to contact Mr Dickson or Mr Stubbs. The applicant spoke to Mr Dunn about Ms Wilson's conduct. 11 August - The applicant said he called both Mr Stubbs and Mr Dickson, but he could not recall the details of either conversation. 3 September - The applicant rang EHS. 13, 14, 17, 19 August & 5 September - The applicant said he spoke to the union delegate " Mario " about his claim and was advised to see a lawyer. 6 September - The applicant met with Mr J Boghossian from EHS.

[74]

66 I turn now to the general principles in respect to the setting of time limits and the Commission's discretion to waive time limits. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 McHugh J said at p551: The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates"… and at p552: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be bought long after the circumstances, which gave rise to it, have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29), as the New South Wales Law Reform Commission has pointed out (30)… and at p553 …In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s. 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires the extension.

[75]

67 More recently, a Full Bench of this Commission said in Hurrell: 12] Having made that observation, a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3) - (4) of the Industrial Relations Act 1991) in this way: Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view. 13] Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice President in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case".

[118]

109 Moreover, the agent knew that the Union had concluded that the applicant did not have a good case and would therefore not represent him. With this in mind, one might have expected the agent to pay closer and cautious attention to considering taking on the applicant's case. I note this same organisation was criticised by his Honour Lawler VP of the Australian Industrial Relations Commission for advice given to another applicant that he had a "reasonable case." In Mihajlovski and I R Cootes Pty Ltd, U2002/1721) his Honour said at para 78: Even given the Applicant's instructions as to pressure being placed on him to meet time deadlines and his instructions suggesting inconsistent treatment, I do not see how a specialist representative of even modest competence could have advised the Applicant that he had a "reasonable case" , the advice given by Mr Boghossian. Given the seriousness of the Applicant's misconduct and the otherwise overwhelming merits in favour the Respondent, a competent representative would have questioned the Applicant closely in relation to those instructions. A competent representative would not have given the advice given by Mr Boghossian without obtaining precise particulars of the pressure applied and sufficient detail of the supposedly comparative cases to demonstrate that they were properly comparable. Such questioning would probably have disclosed that at no time was it suggested that the Applicant ought speed or drive dangerously and that, in any event, no such pressure was applied in relation to the occasion when the accident occurred. Such questioning would probably have at least raised a serious doubt about the validity of the supposedly comparative cases. In those circumstances, a competent representative would have cautioned the Applicant that his prospects of success could not be rated above very poor and that his exposure to the risk of a costs order could not be rated as less than high. Given the attitude of the Applicant leading to his decision to discontinue the matter, it is probable that the Applicant would not have commenced this proceeding if such advice had been given.

Parties

Applicant/Plaintiff:

Bonaccorso

Respondent/Defendant:

General Forest Tree Surgeons

Cases Cited (16)

[2003] NSWIRComm 70

[1999] NSWIRComm 485

[2004] NSWIRComm

(1999) 91 IR 258

(1997) 186 CLR 541

(1997) 74 IR 413

(1993) 51 IR 186

(1995) 62 IR 190

(1995) 67 IR 298

(1993) 51 IR 186

(1996) 186 CLR 541

(1982) 45 ALR 411

(1994) 53 IR 3

(1993) 50 IR 236

(1990) 64 ALJR 458

[2003] NSWIRComm 139

Cited By (2)

Joshua Cortes v WorkCover Authority of New South Wales

Samaan v Astra Zeneca Pty Ltd