Brooker v Healthscope Limited

R Shepherd of counsel (Respondent) File Number(s): IRC 1855 of 2011 Decision under appeal Date of Decision: 2011-10-19 00:00:00 Before: Mr G J T Hart File Number(s): CIM2010/232608

Judgment 1The appellant, Ms Mary Kathleen Brooker, had made application for leave to appeal and, if leave is granted, to appeal from a decision of the Chief Industrial Magistrate, Mr G J T Hart, given on 19 October 2011 in which his Honour dismissed the appellant's claim for recovery of moneys and ordered costs against the appellant. 2In the proceedings before the Chief Industrial Magistrate the appellant had by application dated 2 June 2010 sought orders for recovery of moneys in relation to allegations that her employer, Healthscope Ltd, had underpaid her wages, long service leave and annual leave whilst she was a nurse at Mosman Private Hospital. In respect of the bulk of the claim, which related to underpayment of wages between 1998 and 2004, the Chief Industrial Magistrate held that the claim was time barred by virtue of s 369(3) of the Industrial Relations Act 1996 which provides that claims must be made within six years of moneys becoming due. I note that his Honour disposed of this aspect of the claim in an interlocutory decision of 10 May 2011. The decision is not the subject of the present appeal application. Accordingly, the only aspect of the appellant's claim that is the subject of the appeal application is the underpayment of wages for the period June to December 2004 and the claim for long service leave payments that allegedly became due and payable at the time of termination of the appellant's employment in December 2004. 3As the application for leave to appeal and appeal was filed out of time, the appellant applied to extend time to appeal. This decision concerns the application to extend time. 4Section 189 of the Industrial Relations Act 1996 deals with the time and procedure for making appeals. The section provides: 189 Time and procedure for making appeals (1) An appeal to a Full Bench of the Commission under this Part must be made within 21 days after the date of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows. (2) Further time may be allowed, either before or after the end of that 21-day period. 5I note that s 197 of the Industrial Relations Act provides for appeals from the Local Court to the Full Bench of the Industrial Court and in respect of such appeals applies the provisions of the Crimes (Appeal and Review) Act 2001. Section 11 of that Act allows for an appeal to be filed within 28 days. I further note the discussion by Backman J in Golden Swan Investments (Australia) Pty Limited v WorkCover Authority of NSW (Inspector Pryor) [2006] NSWIRComm 402 as to whether s 189 of the Industrial Relations Act is applicable to appeals from the Local Court or whether s 11 of the Crimes (Appeal and Review) Act applies. Her Honour took the view that s 189 is applicable. Whether that is correct or not it matters not in these proceedings because the delay in filing the appeal extended well past 28 days. In any event, I agree with the view expressed by Backman J that s 189 applies. 6As Staff J observed in Ng and North Coast Area Health Service [2008] NSWIRComm 91, the principles for granting of an extension of time in this jurisdiction are well settled and are to be found in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298, where the Full Bench of the 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 therefor 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. 7The Chief Industrial Magistrate's decision was emailed to the appellant on the date it was handed down, namely, 19 October 2011. In her affidavit in support of the extension of time the appellant stated that she had received the email with the decision attached. However, it was stated that the appellant and her husband were due to go on leave the following day and did not have time to do anything before leaving. The appellant said she assumed her legal representative would also have been provided with a copy of the decision and that the legal representative would be in a position to advise the appellant on her return from leave. 8Upon returning from leave on 10 November 2011 the appellant discovered her legal representative had not been provided with a copy of the decision and it was not until three weeks later before she was provided with advice regarding the filing of an appeal. On 30 November 2011 the appellant sought to file the appeal papers in the Registry, but was advised the application was not in the appropriate form. Whilst the Registry officer indicated the application would, nevertheless, be accepted for filing, the appellant chose to put the application in the correct form and filed it on 8 December 2011, some 29 days out of time, together with the application to extend time to appeal. 9Before even consulting her legal representative about the question of an appeal the appellant allowed some 22 days to elapse. It appears no steps were taken by the appellant in that period to contact the legal representative and there was no indication that such contact could not have been made. 10That an appellant is unaware of limits on the time in which appeals are to be filed is not a reason, of itself, to grant an extension of time. A person contemplating an appeal or intending to appeal has a positive duty to inform himself or herself as to any time limit. That will usually mean seeking legal advice. If the person is provided with wrong advice in that respect by a lawyer that is one thing the court may take into account in the person's favour, but if the person makes no attempt to make the necessary inquiry within a reasonable time that will count against an appellant seeking an extension of time. If the person is not provided with any advice by his or her lawyer after consulting the lawyer regarding the appeal and receives no advice regarding time limits and subsequently files out of time, again the lawyer is probably at fault. 11In the present case, despite consulting her legal representative on 10 November the appellant still did not file the appeal until 8 December, nearly one month later. The appellant provided no explanation for this delay. 12The Court finds the explanation for the delay in filing the appeal to be quite unsatisfactory. 13The Court is required to give consideration of the prospects of the appellant succeeding in the appeal. The appellant indicated that her main point in the appeal was that the Chief Industrial Magistrate erred in deciding that s 406 of the Industrial Relations Act and the "contracting out" provisions of the Long Service Leave Act 1955 (s 7) and Annual Holidays Act 1944 (s 8) had no application. This requires some explanation. 14On 22 December 2004, the appellant and her employer had executed a Deed of Release at about the time of the appellant's employment being terminated. The Deed provided for the payment of certain moneys to the appellant in relation to redundancy, leave credits, annual leave and long service leave and released the employer from and against any and all claims by the appellant in relation to matters arising out of her employment or the termination thereof. 15In the proceedings before the Chief Industrial Magistrate the employer claimed the Deed was a bar to the entire proceedings brought by the appellant. The appellant contended, inter alia , before his Honour that s 406 of the Industrial Relations Act rendered the Deed invalid to the extent it provided for employment benefits less than the minimum standard provided for in the relevant industrial instrument. 16The section is in the following terms: 406 Awards and other industrial instruments provide minimum entitlements (1) The conditions of employment set by an industrial instrument are the minimum entitlements of employees. (2) The provisions of a contract of employment or other contract do not have effect to the extent that they provide an employee with a benefit that is less favourable to the employee than the benefit to which the employee is entitled under an industrial instrument. (3) In the case of a contract determination or contract agreement, a reference in this section to an employee is a reference to a driver or carrier and a reference to employment is a reference to engagement as a driver or carrier. 17Section 8 of the Annual Holidays Act and s 7 of the Long Service Leave Act are in the following terms: 8 Contracting out prohibited (1) The provisions of this Act shall have effect notwithstanding any stipulation to the contrary whether made before or after the commencement of this Act. (2) No contract or agreement made or entered into either before or after the commencement of this Act shall operate to annul or vary or exclude any of the provisions of this Act. 7 Contracting out prohibited (1) The provisions of this Act shall have effect notwithstanding any stipulation to the contrary whether made before or after the commencement of this Act. (2) No contract or agreement made or entered into either before or after the commencement of this Act shall operate to annul or vary or exclude any of the provisions of this Act. 18The Chief Industrial Magistrate determined that s 406 had no application. In that respect, his Honour held: [32] In my view, s406 of the Industrial Relations Act does not have that effect. Within the context of a contract of employment, an employer and an employee are prevented from contracting out of the provisions of an industrial instrument. An award or other industrial instrument provides a legal minimum and s406 protects an employee from being pressured or tricked into agreeing to wages and allowances lower than the legal minimum. However, in my view, s406 has no application in circumstances where a contract of employment has come to an end and there is dispute between the employer and the employee in respect of termination payments. Clearly, the employee has a legal right to come to a Court of appropriate jurisdiction, such as an industrial magistrate's Court, to enforce the industrial instrument in question. Alternatively, the employee can reach a settlement with their employer for the purpose of avoiding litigation with such settlement being recorded in a Deed of Release so as to bring the dispute to an end. In my view, s406 does not contemplate a Deed of Release following the termination of employment. Once the employee elects to execute the Deed of Release, that is the end of the matter subject always to an equity Court having the jurisdiction to set aside such a Deed if circumstances justify such intervention. If the Deed of Release is struck down because it is unconscionable, the employee is left to pursue whatever application for relief was open to them but for the Deed of Release. S406 might then be relevant in proceedings where the employer seeks to rely upon a contract of employment which sets wages or conditions below the minimum legal standards set by an industrial instrument. [33] The interpretation of s406 urged on the Court on behalf of the Applicant would create considerable uncertainty and would clearly not be in the public interest. Where there are disputes between employers and employees over the payment of wages or allowances, it is clearly in the public interest for such disputes to be resolved quickly and with finality. Where parties to litigation, or potential litigation, reach agreement, which is recorded in a Deed of Release, and where moneys are paid as a consequence of such agreement, it is not in the public interest for such agreements to be treated as null and void on the basis that the employee may have achieved a better outcome if they had litigated rather than execute the Deed. I reject the submission that s406 of the Industrial Relations Act impacts upon or nullifies the effect of the Deed of Release executed between the parties on 22 December 2004. 19Notwithstanding the opinion of the learned Chief Industrial Magistrate, my view is that on the face of the provisions it is at least arguable that s 406 and the relevant provisions of the Annual Holidays Act and Long Service Leave Act have application to the appellant's circumstances. Given that the appellant claims the amount of money at stake is of the order of $80,000, notwithstanding the unsatisfactory explanation as to the delay in filing the appeal application, I am inclined to grant the application to extend time in order to avoid any injustice. 20Before making orders to that effect, I should address two other appeal grounds. One such ground was that his Honour erred in deciding he did not have jurisdiction to set aside the Deed of Release under the Contracts Review Act 1980. The appellant indicated she did not intend to press this ground. 21The appellant next contended the appeal raises the question of whether the Chief Industrial Magistrate should have attempted to conciliate the matter. Clearly he was required to under s 371 of the Industrial Relations Act: see Dlugolecka v Todber Pty Ltd t/as Leisure Lea Gardens Retirement Village [2008] NSWIRComm 113; (2008) 174 IR 73; Butlers Hire Pty Ltd v Collison (No 2) [2007] NSWIRComm 312; (2007) 169 IR 44; Palimex & Co Pty Ltd v Rodriguez [2007] NSWIRComm 269; (2007) 168 IR 162; Sydney South West Area Health Service v Kim [2007] NSWIRComm 241; (2007) 168 IR 43; Dr Bilal trading as Hornsby Medical Centre v Marshall [2006] NSWIRComm 360; (2006) 158 IR 269; Yetzotis v Crown in the Right of the State of New South Wales (Commissioner for Corrective Services) [2005] NSWIRComm 302; (2005) 147 IR 50. 22I note on 10 May 2011 the Chief Industrial Magistrate indicated "The Court would be available on that day (21 June 2011) for a s 371 conciliation conference if that suits the parties". The parties did not take up the invitation and there was no indication of any other conciliation having taken place, notwithstanding the requirement in s 371(1) that: The industrial court is not to make an order under this Part until it has brought, or has used its best endeavours to bring, the parties to the application for the order to a settlement acceptable to those parties. 23The apparent failure to comply with s 371 is another reason why an extension of time should be granted. 24The respondent submitted it would be prejudiced if an extension were to be granted. This was so, it was submitted, because despite efforts by the respondent's solicitor to locate Ms M Wallace, a person who executed the Deed in 2004 on behalf of the respondent, she could not be found. However, the matters that would be the subject of appeal would be essentially questions of law. Issues of fact about the terms of or signing of the Deed would not appear to be particularly relevant. Even if the Deed was found to be invalid and the matter was returned to the Chief Industrial Magistrate it is difficult to see how any evidence of Ms Wallace would be relevant. I do not consider any prejudice that might be visited on the respondent is a ground to refuse the extension application.