Brady v Kennedy t/as "Sardines"

(3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and

(b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and

(c) the conduct of the employer relating to the dismissal.

4 The decision of Neal C directed itself to the statutory provisions and, upon a consideration of the evidence and materials adduced in the proceedings, declined, as an exercise of discretion, to accept the late applications. The proceedings were concluded accordingly. The appeals thereby involved an attempt to review and revise the exercise of discretion by the Commissioner to refuse applications to extend time pursuant to s 85(3) of the Act. The principles to be applied in appeals from discretionary decisions are familiar and need not be revisited in this decision: see, for example, Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 and Western Sydney Area Health Service v Gibson (2001) 109 IR 359 at [12] and [13].

5 The challenged decision involved a consideration of the reason for delay, pursuant to s 85(3)(a) of the Act. In this respect, Neal C stated: The primary reason for the delay proffered by all three applicants was that they were unaware of the time constraints for filing s84 applications. I do not regard ignorance of the law of itself as a valid excuse for delay in lodging an application. I take this view, particularly because dismissed employees have now been able to apply for relief from unfair dismissal in this State for ten years and this fact is widely known. This knowledge obviously extends to country areas such as Wee Waa given previous applications received from that location and dealt with by this Commission.

In this context, I was referred to a decision of Sams DP in Gorrell v Uwatec Pty Ltd (Matter No. IRC 1700 of 1999). The Deputy President made the following observations: ["8. Ignorantia legis neminem excusat.] It has generally been held that ignorance of the law is no defence and consequently unavailable as a "sufficient reason" to satisfy s85(3). In Thomas v Repro Auto-Tech Pty Ltd, Tabbaa C said: 'The primary reason for filing the claim was ignorance of the laws. As has been pointed out by the respondent, ignorance of the law is not an acceptable explanation'. In addition, there is little doubt that the recent public and political controversy surrounding unfair dismissal laws must have surely sharpened the public awareness of the rights available to an employee in the event of an alleged unfair dismissal. I would also note that it is unnecessary to seek legal advice in preparing and filing an unfair dismissal claim. Information is available from a wide range of sources, including the Department of Industrial Relations and the Commission itself.

In those circumstances it would be a brave applicant indeed who would plead ignorance of the law as the sole, or primary, reason for an 'out of time' application to succeed."

[Counsel for the applicants] was dismissive of the subject decision of Sams DP, suggested [sic] that the decision would have been overturned had it been appealed and that I would fall into error if I followed the decision. This of course is conjecture as the decision was not appealed and whilst I am not bound by the decision, I find it logical and persuasive. I believe it represents a convenient summary of contemporary considerations available when the Commission is dealing with s84 applications filed out of time. I consider the decision particularly helpful in the present proceedings where ignorance of the law is relied upon as the primary reason for delay. In these proceedings, after careful consideration of the length of delays, I am simply not satisfied that the reasons advanced by the applicants in any way justify the delays which have occurred in these matters.

6 This passage from the decision was the primary focus of submissions on the appeal, although the appeal went forward on various other bases (not all of which are necessary to consider given our conclusions and orders).

7 The primary contention by the appellants on the appeal was set out in the written submissions of Mr A R Moses of counsel as follows: 7. The Commissioner acted upon a wrong principle in determining whether the Appellant had established a sufficient reason for his application to be accepted out of time pursuant to s.85(3) of the [Industrial Relations Act 1996]. In particular, the Commissioner held that an applicant who was ignorant of the remedies and/or time limits for such remedies which are available pursuant to the 1996 Act for dismissed employees, could not use that ignorance as part of a sufficient reason for an application being made out of time.

In so holding, the Commissioner, with respect, wrongly applied the legal maxim: "ignoratia legis neminem excusat". This legal maxim only apples to a defence against a breach of a criminal law: see for example Glanville Williams, Text Book of Criminal Law. It does not apply to the lack of knowledge of a civil remedy or a time limit for a civil remedy. In purporting to apply the legal maxim, without seemingly being aware as to its application or what it meant, the Commissioner purported to follow decisions of two Members of the Commission that had erroneously applied the maxim who unfortunately were also seemingly unaware of the origin of this Latin phrase and its restricted application to criminal cases: see Gorrell v. Uwatec Pty Ltd (Unreported Interlocutory Decision of Sams D.P. on 5 July 1999 in matter no. IRC99/1700) and Thomas v. Repco Auto-Tech Pty Ltd (Unreported Decision of Tabbaa C. on 23 March 1999) AB, Vol 2, p356. There can be no doubt that the erroneous application of the legal maxim influenced the Commissioner's determination of these matters and led him into clear appellable error. …

9. For the reasons explained in this narrative, it is respectfully submitted that the Commission ought to grant leave to appeal in each of these matters so that the clear errors of law can be corrected:

(a) Which have had a detrimental impact on the substantive rights of the Applicants;

(b) And for the Commission to establish a clear principle that the legal maxim "ignorantia legis neminem excusat" does not apply to the exercise of discretion pursuant to s.85(3) of the 1996 Act.

8 Mr R Dubler of counsel, who appeared for the respondent, submitted the principle enunciated by Neal C was no more than the proposition that ignorance of the time limit was not, quoting from the decision, "of itself …a valid excuse for delay in lodging an application". This, he submitted, is an orthodox proposition and involves no error of law, referring to a broad range of decisions of the Commission and of the Australian Industrial Relations Commission where the phrase "ignorance of the law is no defence" and similar turns of phrase had been used. He submitted that it is implicit in such cases the principle must be extrapolated in that ignorance of itself is not a valid excuse. The principle expounded by Neal C was not that an applicant who claimed to be ignorant of the time limit was disentitled from ever showing a sufficient reason to be granted an extension of time. Rather, in all instances, all relevant factors must be taken into account. Simply stated, the proposition was that, of itself, ignorance of the time limit is not a sufficient reason or valid excuse for delay. Neal C, it was contended, clearly had turned his mind to the relevant statutory provisions, and no error of principle can be demonstrated. The conclusions reached were reasonably open on the evidence and ought not be disturbed on appeal.

9 An appeal to a Full Bench of the Commission may be made only by leave. We are of the opinion this matter is of such importance that, in the public interest, leave to appeal should be granted. A perusal of the cases cited by the parties to the appeal indicates the use or application of the maxim ignorantia legis neminem excusat is to be found in a number of comparatively recent decisions of the Commission. We are satisfied the appeal raises important questions relating to the principles applicable in the determination of an application under s 85(3) of the statute and, specifically, the application of the legal maxim ignorantia legis neminen excusat to the determination of applications to accept applications made out of time.

10 It is clear that Neal C considered the evidence for the respondent and of each of the appellants in the context of the relevant statutory provisions. Moreover, his decision disclosed a multi-factor approach in reaching the discretionary decision not to accept the three late applications. Nonetheless, the decision-making was informed, at least in part, by reliance on the authority of the decision of Sams DP in Gorrell and Uwatec Pty Ltd (unreported, IRC99/1700, 5 July 1999) which stated, "It has generally been held that ignorance of the law is no defence and consequently unavailable as a 'sufficient reason' to satisfy s85(3)". The decision of Sams DP, in turn, cited a decision of Tabbaa C to similar effect. Similar comments may be found in a range of decisions of the Commission in relation to applications concerning late unfair dismissal applications including, for example, the later decision of Sams DP in Weisser and Spur Group Pty Limited [2002] NSWIRComm 15.

11 Neal C emphasised that the primary reason proffered by the appellants for the delay in bringing the proceedings was their lack of awareness of the time constraints specified in s 85(1) of the Act. In the Commissioner's view, ignorance of the law, of itself, was not a valid excuse for the delay in filing. As noted earlier, Mr Dubler submitted the phrase "ignorance of the law is no defence", as used in the appealed decision, in the two cases cited in the appealed decision and in the various other industrial cases must be "extrapolated" to give it a common sense application. It may be that the phrase where used in such cases was intended to amount to no more than a statement of orthodox, common sense propositions, and that it involved, as Mr Dubler contended, a "balancing exercise" of relevant considerations. Nonetheless, the maxim has a meaning and context particular only to criminal jurisprudence. Its use in the determination of applications brought under Ch 2 Pt 6 of the Act seeking an extension of time is inapt, liable to distract the decision-maker from the proper exercise of discretion and is wrong in law. The error ought not be further perpetuated.

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".

14 To arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues, such as the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual circumstances giving rise to late lodgement, including any attempts to lodge an application. The Commission needs only to be satisfied that there is a "sufficient reason" to accept the late application, having "particular" regard to the matters identified. When viewed in that way, the maxim concerning ignorance of the law emerges as even less relevant than otherwise may be the case. The use of the maxim in applications to extend time in unfair dismissal matters has the real potential for error, as this matter highlights.

15 We turn now to the circumstances which were appropriate to be taken into account in consideration of hardship for the purposes of s 85(3)(b) of the Industrial Relations Act.

16 The appeal was advanced, in part, on the basis that the Commissioner had failed to give sufficient weight to the evidence of hardship or prejudice to the appellants. We are not satisfied that the Commissioner failed to take into account, or gave insufficient weight to, the evidence as to hardship. Whilst we consider that "hardship" as identified in s 85(3) of the Act is, in its context, to be construed broadly so as to include both individual disadvantage and more broadly understood notions of prejudice to the respective parties, there is nothing in the decision at first instance, to the extent that this aspect may be considered separately, which warrants intervention on appeal.

17 In Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541, the High Court considered extensions of time, in the context of certain Queensland legislation concerning personal injuries. The decision of McHugh J considered matters such as the effect of delay on the quality of justice; the oppressiveness which may be caused in allowing an action to be brought long after the circumstances which gave rise to it have passed; the proposition that people should be able to arrange their affairs and resources on the basis that claims would no longer be made and the public interest in the quick resolution of matters. As his Honour noted (at 553 - 554): A limitation period is the general rule; an extension provision is an 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. …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 that extension.

18 The judgment of Dawson J adverted to similar considerations, as well as to prejudice. In this latter respect his Honour noted (at 544): To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant…

19 Toohey and Gummow JJ expressed difficulty (at 459) with: [T]he notion of weighing prejudice to an applicant against prejudice to a respondent … [because] in one sense the prejudice to the present respondent is absolute if her application is refused. She can never litigate her claim. But that cannot be enough of itself to warrant an extension of time; in truth there would be no discretion to be exercised.

20 It is unnecessary for us to comprehensively consider the meaning of "prejudice" for the purposes of an application to extend time under Ch 2 Pt 6 of the Act, given the limited submissions by counsel with respect to the particular issues arising in this appeal. As Mr Dubler submitted, the relationship between hardship and prejudice "does not matter here", because of the evidence and the decision at first instance. We agree.

21 In cases where the acceptance of a late application is determined as a preliminary issue, it may be appropriate to consider whether the applicant has an arguable case and the applicant's prospects of success. While it is inappropriate effectively to decide the substantive issue in interlocutory proceedings, whether there is an arguable case and the parties' prospects of success are matters appropriately considered in determining whether a "sufficient reason" has been established to accept an application out of time. This is particularly so, given the subject matter of an application for relief against an allegedly unfair dismissal, and the recognition that a refusal to extend time would finally determine the proceedings and prevent the hearing of such an application on its merits.

22 Indeed, it has been held that a consideration of the prospects of success may be a necessary, although not determinative, consideration in the exercise of discretion: Brady at 269. Moreover, the parties should be given an opportunity to address on any such prospects, where they arise as relevant discretionary considerations: Sebastian v Roads and Traffic Authority of New South Wales (1995) 62 IR 190 at 193 - 194. It should be emphasised, however, that any assessment of an arguable case or an applicant's prospects of success, will, of necessity be made in the absence of all the relevant evidence and, as such, can be only preliminary in nature.

23 In Buckman and Another v Burdekin Resources NL (1998) 85 IR 415 at 419 the Full Bench gave consideration to what appellate relief should be granted where there had been a misapplication of legal principle, but the unfair dismissal applications had been dismissed on various grounds and for various reasons. In Buckman, the Full Bench approached the matter in this way (at 419): An appeal to a Full Bench is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against: see s191(1) of the Act. In particular, the Full Bench cannot merely substitute its decision on the matter but must follow the principles applying to appeals from discretionary decisions: see s191(3) of the Act. In this appeal, we are satisfied the commissioner erred in his decision by not applying the proper principles and those errors should be corrected on appeal. However, the issue which then emerges relates to the appropriate relief on appeal given our conclusion that the challenged decision proceeded on an erroneous basis. In other words, the relevant effect of the extent to which the evaluation of evidence and submissions at first instance was coloured by the misapplication of law or principle. It should be emphasised that Mr. Latham was unable, it seems to us, to demonstrate any area where the resultant or ultimate findings made by Connor C were so unsustainable as to manifestly require appellate intervention. In short, those findings were reasonably available on the evidence as a matter of discretion. Equally and importantly, however, we cannot be satisfied that the discretionary aspects of the decision were not coloured by the commissioner's misapplication of law or principle to the detriment of the consideration of the substantive merits of the appellants' cases. …The decision below contained errors of legal principle; and it reasonably may be inferred that the commissioner's findings and exercise of discretion were predicated, in part or in whole, on those erroneous principles.

24 While it is clear the decision of Neal C canvassed a range of issues in reaching the conclusion not to accept the applications out of time, we cannot be satisfied the discounting of the "primary reason" did not colour the eventual exercise of discretion. The emphasis on that primary reason is likely to have, as Mr Moses submitted, "contaminated", in whole or in part, the ultimate exercise of the Commissioner's discretion and, as such, the exercise of discretion was predicated upon a misapplication of legal principle. In those circumstances, we decided, consistent with the approach adopted in Buckman, to set aside the decision of the Commissioner and exercise the discretion that the late applications be accepted out of time.

25 The orders made at the conclusion of the hearing are confirmed. ________________

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