Butlers Hire Pty Ltd v Collison

Bilal (t/as The Hornsby Medical Centre) v Marshall (2006) 158 IR 269 Bon McArthur Transport Pty Limited t/as McArthur Express and Hanbury Investments Pty Ltd [2004] NSWIRComm 55 Cavacuiti and Anor v Toyota Motor Corporation Australia Ltd (2002) 122 IR 247 Faber v Greyhound & Harness Racing Regulatory Authority of New South Wales [2007] NSWIRComm 207 Gabrielle Weisser v Spur Group Pty Ltd (unreported, Walton J Vice-President, 2 September 2002, matter No IRC 3744 of 2002) Gallo v Dawson (1990) 93 ALR 479 CASES CITED: Palimex & Co Pty Ltd v Rodriguez [2007] NSWIRComm 269 Russell Kerry Collison v Butlers Hire Pty Ltd (unreported, Chief Industrial Magistrate Hart, Matter No. 124416/05, 20 August 2007) Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 SSWAHS v Kim and others [2007] NSWIRComm 241 Tadic v Beslic [2001] NSWIRComm 107 Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436 WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 Yetzotis v Crown in the Right of State of New South Wales (Commissioner of Corrective Services) (2005) 147 IR 50

APPLICANT Mr P Ginters of counsel Solicitor: Mr P Walter Walter Madden Jenkins LEGAL REPRESENTATIVES: RESPONDENT Mr R Tripodi of counsel Mr G Beard Australian Workers' Union, New South Wales

Application by Butlers Hire Pty Ltd to extend time to appeal and leave to appeal and against a decision and orders of Chief Industrial Magistrate Hart given on 20 August 2007 in matter No 124416/05

1 This is an application by Butlers Hire Pty Ltd ("the applicant") pursuant to s 189(2) of the Industrial Relations Act 1996 ("the Act") for an extension of time in which to appeal a decision of the Chief Industrial Magistrate given on 20 August 2007: Russell Kerry Collison v Butlers Hire Pty Ltd (unreported, Chief Industrial Magistrate Hart, Matter No. 124416/05, 20 August 2007). In that decision, his Honour found that the applicant had failed to comply with the provisions of the Exhibition Industry (State) Award and the Long Service Leave Act 1955. 2 His Honour ordered the applicant to pay a total sum of $29,695.39 representing outstanding overtime, compassionate leave entitlements, payment in lieu of notice, severance pay and long service leave. His Honour also ordered the applicant to pay the sum of $7,950, representing interest on the moneys owed to the respondent, Russell Kerry Collison, who had commenced proceedings in his capacity as Secretary of the Australian Workers Union, New South Wales Branch ("the Australian Workers Union"), on behalf of a member, Mr Savchenko. 3 Section 189 of the Act, which deals with time limits for an appeal, 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. 4 Any appeal was required to be filed by 10 September 2007, unless further time is allowed. 5 On 9 November 2007, the applicant filed an application for leave to appeal and appeal and an application to extend time to appeal. A stay was also sought of his Honour's decision. The application to extend time to appeal, together with the application for leave to appeal, was served by facsimile on the respondent on 9 November 2007. 6 The applicant relied on the following grounds for obtaining an extension of time: 1. The Appellant was not notified by the Court that Judgment was being delivered on 20 August 2007. 2. The Appellant was not notified by the Court after Judgment was delivered. 3. The Appellant first became aware that Judgment had been delivered by notice from the Respondent on 17 October 2007. 7 The application was supported by an affidavit of Paul Thomas Walter, the solicitor for the applicant sworn on 14 November 2007. Mr Walter annexed to his affidavit a letter to the Registrar, Chief Industrial Magistrate's Court dated 17 October 2007, which relevantly stated: We are advised this date by the Applicant [at first instance], that the Judgment in the above matter was delivered by Magistrate Hart on 20 August 2007. Prior to this communication, we had not received any notification that the matter was listed on 20 August 2007 and consequently there was no appearance by or on behalf of the Respondent on that date. Would you please advise if you would provide a copy of any written reasons for Judgment. 8 On the same day, the solicitors for the applicant wrote to the Australian Workers' Union. 9 On 18 October 2007, Mr Michael Dearing, the Chief Industrial Magistrate's Clerk, forwarded an email in the following terms to Mr Walter: Just forwarded the original email that was sent on 22 August 2007. I (sic) appears that the email address is incorrect, however I cannot recall an error message at the time. In relation to notifying parties when decisions are handed down, in this matter as with most matters the Registry does not receive a copy of the decision until the day it is handed down, making it impossible to notify the parties in advance. Decisions are emailed out on or soon after they are handed down. In this case the email was sent to an incorrect email address. The Registry has since instituted a process whereby parties at hearings before the Chief Industrial Magistrate are asked to provide preferred contact details including email addresses. 10 By letter dated 31 October 2007, the applicant's solicitors wrote to the Australian Workers' Union contending that his Honour had failed to comply with the obligation imposed by s 371(1) of the Act. This section is in the following terms: 371 Conciliation to be attempted before order made (1) 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. (2) If such a settlement is made, the industrial court is required to make an order that, to the extent authorised by this Act, gives effect to the terms of the settlement. The applicant referred to a number of recent decisions of full benches of the Court that had considered the provisions of s 371(1) of the Act and advised that they would be seeking an order that the time for filing and serving of an application for leave to appeal and appeal (which was enclosed in draft form) be extended. The applicant sought the respondent's consent to the filing of the foreshadowed appeal by 4.00 pm on Monday 5 November 2007. Mr Walter deposed that no response was received to this letter. 11 Mr P Ginters of counsel, who appeared for the applicant, made, in summary, the following submissions: (i) that the applicant had not been dilatory and had taken steps immediately upon being advised that judgment had been given; (ii) the applicant did not receive a copy of the judgment from the clerk to the Chief Industrial Magistrate until 18 October 2007; (iii) the applicant wrote to the respondent on 31 October 2007 seeking its consent to the filing of an application for an extension of time. No response was forthcoming; (iv) the applicant filed its application to extend time together with an application for leave to appeal and appeal on 9 November 2007 being 21 days after it had received a copy of the judgment from the Chief Industrial Magistrate. 12 Mr R Tripodi of counsel, who appeared for the respondent in opposing an extension of time, relied upon an affidavit of Graeme Beard, an Industrial Officer with the Australian Workers Union. Mr Beard deposed that Mr Savchenko died on 29 August 2007. Annexed to his affidavit was a death certificate dated 10 September 2007. 13 Mr Beard stated that the legal costs incurred by the Australian Workers Union, on behalf of their member, were approximately $10,440 plus GST, contending that the respondent would suffer prejudice if an extension of time was granted and such costs would be lost. Further prejudice would be suffered by incurring further legal costs. Furthermore, severe prejudice would be suffered by the respondent in respect of the quality of evidence available to it if the extension of time was granted and the appeal upheld because Mr Savchenko would not be able to give evidence. 14 Mr Tripodi's submissions may be summarised as follows: (i) the application for an extension of time was filed 60 days late. If it is accepted that the applicant became aware of the Chief Industrial Magistrate's judgment on 17 October 2007, the application for an extension of time was filed 23 days after 17 October 2007; (ii) in Cavacuiti and Anor v Toyota Motor Corporation Australia Ltd (2002) 122 IR 247 at 261 [49] - [52] his Honour Walton J, Vice-President, in discussing a delay that occurred in respect of a period from the handing down of judgment to the client becoming aware of the judgment observed that the importance of a 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 (or in the present case, well within the next 21 days); (iii) there does not appear to be any reasonable explanation for the delay from the time the appellant became aware of the judgment to the time of the filing of the application for an extension; (iv) in respect of assessing the prospects of success for the appeal, all that was asserted was that the Chief Industrial Magistrate did not comply with the obligations imposed by s 371 of the Act. Unlike in Faber v Greyhound & Harness Racing Regulatory Authority of New South Wales [2007] NSWIRComm 207, the transcript of the proceedings or other more credible and admissible evidence providing observations of what occurred in the Court below has not been provided. It was submitted that therefore there is not sufficient cogent evidence for this Court to determine this question and accordingly an assessment of the prospects of success should be seen as weak; (v) the respondent would suffer prejudice if the application were granted because Mr Savchenko died on 29 August 2007. If both the application to extend time and the appeal are successful and the matter is remitted to the Local Court, the primary witness for the respondent on whose behalf the proceedings were brought will not be available to give evidence and his estate and his dependants will be deprived of his entitlements; (vi) justice requires that the application therefore be refused. 15 It was common ground between the parties that the principles for granting of an extension of time 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 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 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." 16 This decision was followed by Walton J Vice-President in Cavacuiti & Anor v Toyota Motor Corporation Australia Limited and by Sams DP in Bon McArthur Transport Pty Limited t/as McArthur Express and Hanbury Investments Pty Ltd [2004] NSWIRComm 55. 17 Walton J Vice-President, in applying the above principles in Cavacuiti noted: [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 at 195; Gallo v Dawson at 481 and Salter Rex & Co v Ghosh 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 at 6 and LEP International v Caine at 49 [57]; whether there is a reasonable explanation for the failure to file the appeal within time (see LEP International v Caine (at 48 [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 (NSW) 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. 18 Sams DP in Bon McArthur, at [21], adopted the principles in WorkCover Authority (NSW) v Parkes Council and the points of emphasis extracted by Walton J Vice-President in Cavacuiti. 19 I intend to apply these principles in considering this matter, recognising that the ultimate determination by the Commission is to ensure that the interests of justice are served. Consideration 20 I propose to consider each of the principal factors separately to determine this application. Delay 21 The applicant's case for an extension of time substantially relied upon the explanation for the delay, clearly a relevant factor to the exercise of the Court's discretion: WorkCover Authority (NSW) v Parkes Council (at 304) and Gallo v Dawson (1990) 93 ALR 479 (at 481). This requires a consideration of the extent of the period of lateness in light of the reasons given for the delay: Gabrielle Weisser v Spur Group Pty Ltd (unreported, Walton J Vice-President, 2 September 2002, matter No IRC 3744 of 2002). 22 In this case, the delay in filing the application for leave to appeal and appeal was due to the applicant not becoming aware of his Honour's judgment until 17 October 2007. The applicant took immediate steps to obtain the judgment by writing to the Local Court. It was provided with a copy of the judgment on 18 November 2007. It is clear that the judgment was forwarded to the incorrect email address of the applicant. I accept that the applicant's representative did not become aware of his Honour's decision until on or about 17 October 2007 and did not receive a copy of the judgment until 18 October 2007. The applicant wrote to the respondent on 31 October 2007 seeking its consent to the filing of an application to extend time. There was no reply and the applicant filed its application on 9 November 2007, that being 21 days from the time it received a copy of the judgment from the Local Court. In my view, the explanation for the failure to file the appeal within time is a reasonable explanation and there is a satisfactory explanation for the entire delay. Prejudice 23 Whether the respondent will suffer prejudice by the granting of an extension of time is not determinative and, only one factor to consider in dealing with such an application. The cost of and inconvenience of litigation brought outside a prescribed limitation period should also be considered: Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3. Although I have had regard to this factor when all relevant factors are considered, the balance lies in favour of the applicant. The respondent also submitted, that particular prejudice would be suffered because of the death of Mr Savchenko. In considering this aspect of the matter, I am required to balance the overall interests of justice between the parties. The death of a party or important witness during proceedings, although rare, is not unprecedented and it is a factor that I take into account in the overall determination of this application. It may ultimately give rise to serious consequences for the respondent if the appeal is upheld. However, it cannot be the determinative factor in respect of this application. Prospects of Success of Appeal 24 In the exercise of the Court's discretion, it is also necessary to consider the applicant's prospects of succeeding in the appeal: WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (at 300). The Full Bench has found that the failure to comply with clear and unambiguous statutory obligations imposed by s 371 of the Act invalidate any orders made: Yetzotis v Crown in the Right of State of New South Wales (Commissioner of Corrective Services) (2005) 147 IR 50; Bilal (t/as The Hornsby Medical Centre) v Marshall (2006) 158 IR 269; Faber v Greyhound & Harness Racing Regulatory Authority of New South Wales; SSWAHS v Kim and others [2007] NSWIRComm 241; Palimex & Co Pty Ltd v Rodriguez [2007] NSWIRComm 269. 25 If the contentions of the applicant are made out, then in accordance with the abovementioned decisions, leave to appeal will be granted and the prospects of the appeal succeeding are undeniable. 26 In my view, there is a reasonable explanation for the delay in lodging the appeal. Although the respondent has identified a relevant prejudice, there appears to be strong prospects of success on appeal. 27 The guiding principle in relation to applications brought under s 189 of the Act is that the Court should do justice between the parties and ensure the proper administration of justice: Tadic v Beslic [2001] NSWIRComm 107 at [22] applying Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436. I consider that there is a tangible basis for concluding an injustice may arise to the applicant in this matter if an extension of time were not granted. The Court considers that, having regard to the guiding principles, an extension of time should be granted to bring the application for leave to appeal and appeal. ORDERS:

1. Pursuant to s 189(1) of the Act, I order that the extension of 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. 2. The applicant should pay the costs of the respondent of the application to extend time in a sum as agreed, or in default of agreement, as assessed. 28 The application for a stay of his Honour's decision is fixed for hearing at 11.00 am on Wednesday 5 December 2007.

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