Caterpillar of Australia Ltd & Ors v Gough & Gilmour Holdings Pty Ltd & Ors

Cavacuiti v Toyota Motor Corp Australia Ltd (2002) 122 IR 247; De Luxe Cab Co Ltd v Grenside (1999) 92 IR 384 Green v Brown (2002) 116 IR 21 CASES CITED: LEP International Pty Ltd v Caine (2000) 97 IR 35 NSW Teachers' Federation & Ors v NSW Office of the Board of Studies [2001] IRComm1 Skelly v Prouds Jewellers Pty Limited (1994) 53 IR 3 Virtue v NSW Depart of Education &Training (1999) 92 IR 428 WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298

Applicant: Mr H.J. Dixon QC with Mr D. Bennett of counsel Solicitors: Mr A. Gray Mallesons Stephen Jaques LEGAL REPRESENTATIVES: Respondent: Mr M.J. Kimber SC with Mr A. Martin of counsel Solicitors: Mr D.C. Stewart Harmers Workplace Lawyers

CATERPILLAR OF AUSTRALIA LIMITED AND ORS v GOUGH & GILMOUR HOLDINGS PTY LIMITED AND ORS

Application by Caterpillar of Australia Limited to extend time to appeal

1 The applicants move by way of Notice of Motion for the grant of an extension of time to file a leave to appeal and appeal application from three Judgments and Orders of Boland J in a part heard matter before his Honour brought under s106 of the Industrial Relations Act 1996 (the Act). Reliance is placed upon s189(2) of the Act for the grant of an extension of time.

2 The Notice of Motion was moved by the applicants represented by Mr H.J. Dixon SC and Mr D. Bennett, of counsel and opposed by the respondents represented by Mr M.J. Kimber SC with Mr A. Martin of counsel. History 3 The respondents brought the proceedings under s106 of the Act in response to a notice of termination of three commercial agreements struck between Caterpillar Australia Limited (the first applicant in these proceedings) and the respondents. The commercial agreements were: a sales and service agreement dated 1 July 1991; a distribution agreement for engines, parts and services dated 1 July 1991 and product support agreement for engines, parts and services dated 12 November 1997. 4 The respondents in the s106 application seek relief in the following alternative ways: · the continuation of the dealership agreements with variations or, in the alternative, · if the dealership agreements were not varied, compensatory orders pursuant to s106(5) of the Act. 5 Boland J on 23 November 2000 determined the s106 proceedings would be heard in two parts: · A determination of the alleged unfairness and whether the contracts should be varied. · A determination then as to compensation and/or monetary orders, if applicable. 6 The parties proceeded with the litigation of the claim having accepted his Honour's ruling. The applicants have throughout the hearing, which has occupied over 100 sitting days, raised issues related to the Court's jurisdiction. 7 Sixteen interlocutory judgments have been delivered in the proceedings. This application for a grant of an extension of time for the filing of a leave to appeal and appeal application relates to three of the judgments of Boland J. The first relevant judgment was given on 23 October 2001 (Judgment No. 9 - the Injunction Decision) the second was delivered on 19 December 2002 (Judgment No. 11 - the Jurisdiction and Primary Relief Decision) and the third judgment was delivered on 4 June 2003 (Judgment No. 15 - the Alternative Relief Decision). The Orders arise from Judgment No 15 were delivered on 14 July 2003. 8 In Judgment No 9, the Court gave interlocutory injunctive relief to the respondents. That relief kept the dealership agreements alive until further order. The Court also determined it had jurisdiction and power to grant interlocutory injunctive relief.

9 In Judgment No 11, the Court found both jurisdiction and power to grant the relief sought and found as follows: · the contracts or arrangements between the respondents and the applicant met the jurisdictional requirements of section 106 of the Act. · the overall arrangement was unfair excluding the dealership agreements.

Boland J rejected the respondents' contention for the continuation of dealership agreements on varied terms. The injunction granted by orders of 24 October 2001 was then dissolved. After making the above findings, the Court in Judgment No. 11 then varied the overall arrangement to include the following terms: i) Harcourt David Gough and Anthony Lansley Gilmour will have a period of ninety days ('the additional sale period') commencing on 5 June 2003 to sell their shares in the dealership business to that person nominated by Caterpillar as the 'preferred dealer candidate'. Subject to orders 7(ii), 7(iii) and 7(iv) hereof, at any time after the expiry of seven days after the last day of the additional sale period Caterpillar may give 26 weeks' notice of termination of the agreements referred to in paragraph A(1) of the Proposed Fourth Summons ("the dealership agreement") and: (a) the notice of termination period will commence to run at the start of the day following the day upon which the notice of termination is given; and (b) the dealership will be terminated at and from midnight on the last day of the 26-week notice period." 10 In Judgment No. 15, delivered on 4 June 2003, the Court clarified for the parties a number of issues arising from its determination in Judgment No. 11. The respondents had pressed alternative variations to the "overall arrangement". 11 On 14 July 2003, the Court made formal Orders giving effect to Judgment No 11 and 15. The formal orders effectively gave the respondents three months to sell their dealership business or alternatively, if no agreement for sale was reached (with third parties), the applicants could proceed with the notices of termination of the dealership agreements. 12 The respondents failed to achieve a sale of the dealership. 13 On 11 November 2003, the applicants served the notices of termination of the dealership agreements. Termination of the dealership agreements took effect in accordance with those notices on 9 April 2004. 14 On 13 October 2004, Boland J directed the respondents to serve a document on the applicants summarising the outstanding issues. 15 On 11 November 2004, the respondent's served upon the applicants the document, as ordered, outlining the outstanding issues and included with it a draft Amended Summons particularising the respondent's compensation claim.

16 On 15 April 2005, the respondents then sought leave of the Court to rely on the Amended Summons in the proceedings, which summons, in draft form, had been given to the respondents in November 2004. The Amended Summons and claim for compensation amended the original summons which had sought compensation but the particulars of the claim were not recited. 17 On 21 June 2005, the applicants filed an application in the New South Wales Court of Appeal asserting the Industrial Court of NSW lacked jurisdiction to hear this s106 application. Reliance was placed on a "developing" line of Court of Appeal authorities which addressed the jurisdiction of the Court to deal with applications brought under s106 of the Act. 18 On 1 December 2005, the New South Wales Parliament passed the Industrial Relations Amendment Act 2005. The Amendment Act inserted a new privative provision into s179 of the Act. The purpose of the privative clause was stated as follows in the explanatory note accompanying the Amendment Bill: 1. To reverse so much of the decision of the Court of Appeal .... which held that section 179 did not prevent the exercise of the Supreme Court Supervisory jurisdiction in relation to proceedings or proposed proceedings before the Industrial Court of New South Wales.

2. If an application is made to the Supreme Court before the Industrial Court of New South Wales makes a decision in the proceedings, and to restrict the operation of section 179 so that the Supreme Court supervisory jurisdiction is available if a purported decision of the Industrial Court of New South Wales is alleged to be outside the jurisdiction of the Industrial Court, but only after the exercise of any right of appeal to the Full Court of the Industrial Court of New South Wales. 19 The Court of Appeal proceedings brought by the applicants have been stood over until 26 June 2006: · to await the High Court's determination; and · to allow consideration of the impact of the Amendment Act on the Court of Appeal proceedings. 20 The proceedings before the Industrial Relations Commission of New South Wales are part-heard before Boland J and next listed on 29 June 2006. Submissions of the Applicants 21 The applicants rely upon the following grounds in support of their application for an extension of time: · a favourable exercise of the discretion is required to extend time to enable justice to be done between the parties. · given the complexity and extent of the legal and factual matters to be considered, the complexity and number of the Court of Appeal judgments and the Law Term Vacation, a strict application of the time within which the Applicants should lodge an appeal would operate as an instrument of injustice. · there is no prejudice to the respondents by reason of the granting of an extension of time. · the applicants have proceeded expeditiously from the time that they became aware of the effect of the recent NSW Court of Appeal judgments concerning jurisdiction and the Industrial Relations Amendment Act 2005 which amended s179. · in the event that an extension of time is granted and the Applicants file an Application for Leave to Appeal and Appeal in this Court, the applicants will discontinue the CA proceedings. 22 The applicants contend in the use of the Court's discretion to grant an extension of time to appeal to the Full Court of the Industrial Commission of New South Wales, the Court should consider this application would: · enable justice to be done to the parties · by way of the Amendment Act, Parliament has designated the Full Court of the Industrial Court of New South Wales as the primary appellate court to deal with all appeals arising out of the judgment at first instance of this Court · a substantial sum of money is at stake · as his Honour determined to split the hearing into two parts, the first dealing with liability and the second dealing with compensation it is important that the jurisdictional argument that was raised by the applicants in the hearing before Boland J be determined before a costly further step is taken in the proceedings. 23 In support of the grant of an extension of time, the applicants rely on the following facts and submissions: · there has been no expression of concern by the respondents at the time this matter has taken already and the argument on jurisdiction would not cause them any further prejudice. · the savings in time and costs could be well served by the jurisdictional issue being determined before the next stage of the proceedings is entered into, which stage is an assessment as to compensation and will take substantial time and incur substantial costs. · the question of the jurisdiction of the Court will be pursued on appeal and there is therefore a benefit in that this application will reduce costs and inconvenience to the parties. · if leave to extend time is granted it will still be a matter for the Full Court as to whether the leave to appeal ought to be granted and whether it is the appropriate time to deal with Caterpillar's appeal against the judgments. · assuming the applicants' grounds of appeal have prospects of success it is necessary for this Court to consider the consequence of refusing the extension of time, that is if the Court had no jurisdiction to make the variation orders of 14 July 2003, then any further proceeding advances, on an "artificial footing" (R v Mitchell (1977) 1965 Cr App Rep 185. · this is one of the exceptional and rare circumstances where the Court should determine at an early stage whether jurisdiction exists for any order (Euphoric Pty Limited v Ryledar Pty Limited & Anor (2002) 117 IR 1). · the respondents by their own behaviour since the determination of orders on 14 July 2003 exhibited delay in that they did not file their amended summons until 15 April 2005 and have not pressed for a hearing date. · the applicants' prospects of success on appeal cannot be held to be hopeless or futile. 24 The applicants also contend the respondents have themselves delayed in pressing their claim. On 7 July 2004, the matter had to be re-listed on the initiative of the Court, the respondents having made no attempt to do so since the Court's orders in July 2003. On that date, the respondents asked that the matter be stood over for 3 months, and foreshadowed that it may be necessary for them to further amend their summons. On 13 October 2004, the respondents again asked that the matter be stood over, until February 2005, on the basis that "the issue of the dust settling is still very much alive" and resisted the applicants attempts to have them identify their Part B claims with precision and finality. The respondents were content to have the hearing of Part B further delayed while they made their December 2004 application in relation to the costs of Part A. Further, the respondents consented to the Court of Appeal proceeding being stood over on 4 July 2005 to 12 December 2005, and did not oppose a further adjournment on 12 December 2005 to 26 June 2006.

25 To summarise, the applicants submitted, having regard to the history of the proceedings before the Industrial Relations Commission, the conduct of the parties, the nature of the litigation, the recent jurisdictional cases in the NSW Court of Appeal, the Court of Appeal proceedings, the High Court of Australia proceedings and the effect of the amendments to s179 of the Act, the discretion held by the court should be exercised in favour of an extension of time. 26 Finally, the applicants submitted this is a large and commercially significant case and the court should be given the opportunity to interpret, apply and clarify, where necessary, the recent reasoning of the Court of Appeal. Submissions of the Respondents 27 The respondents to the notice of motion, the applicants in the primary proceedings, oppose the relief sought by the applicants in this application to extend time to appeal.

28 The respondent submitted the period of delay is so substantial that an extension of time should be refused. The respondents assert: · the applicants are out of time to appeal the judgments of Boland J and taking the last judgment into consideration (for the purposes of the submissions) for two years the applicants have been entitled to assume there was no jurisdictional dispute given the conduct of the applicants which inferred a conscious decision had been made by the applicants not to appeal the decisions of Boland J · the applicants only appealed to the Court of Appeal on 21 June 2005 still two years after the Orders of Boland J. · the respondents have opposed that application for prerogative relief on the grounds of delay. · the relevant judgments relied upon by the applicants were as follows, Mitchforce Pty Limited v Industrial Relations Commission of New South Wales (2003) 57 NSWLR 212 (published on 13 June 2003); Solution 6 Holdings Limited v New South Wales Industrial Relations Commission (2004) 208 ALR 328 (published on 21 July 2004); Old UGC Incorporated v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 620 (published on 21 July 2004); QSR Limited v Industrial Relations Commission of NSW (2004) 208 ALR 369; (published on 21 July 2004); Mayne Nickless Limited v Industrial Relations Commission of NSW (2004) 141 IR 1 (published on 1 October 2004); Sydney Water Corporation Limited v Industrial Relations Commission of NSW (2004) 61 NSWLR 661; (published on 1 December 2004); Angyal v Industrial Relations Commission of NSW (2005) 145 IR 56 (published on 2 May 2005); and the latest McDonalds Australia Limited v Industrial Relations Commission of New South Wales (2005) 144 IR 219 (published on 25 August 2005). · the Judgments were delivered between 2003 and August 2005 yet the extension of time application was not filed until 20 January 2006. The applicants' submission that it relies upon the developing law should be rejected. · the appeal to the Court of Appeal itself reflects delay by the applicants given the first judgment affecting jurisdiction relied upon was handed down by the Court of Appeal in June 2003. · the time limit for appeal was relied upon by the applicants in opposing a number of respondents' application in the hearing before Boland J. For example on 21 January 2003, the applicants submitted against the respondents "have had available their rights to appeal . . . but have not done so". · the applicants offer no acceptable explanation for the failure to seek an extension of time prior to 20 January 2006. The applicants have been represented by solicitors and senior and junior counsel throughout the course of proceedings over a number of years and made a conscious decision to "sit on its hands". The Court would be entitled therefore to infer there may be other reasons for the decision not to appeal the three relevant Judgments and Court Orders. · the amendment to s179 of the Act cannot be used in support of this application. The Amendment Act passed on 1 December 2005 and took effect on 9 December 2005, which states the Parliament intended that appeals be conducted before the Full Court in no way affects the determination to make this application for an extension of time for leave to appeal and appeal.

29 The respondents submitted given: · the applicants have not appealed Judgment No. 9 for four years and Judgment No. 15 for two years, the proposition that the applicants so refrained in order to research the issues should be rejected (Gallo v Dawson (1990) 93 CLR 479 (at 481). · the challenge to the Judgments of Boland J in the Court of Appeal is not based on the reasoning in Solution 6 in the Court of Appeal. The reasoning in Solution 6 cannot therefore be a basis for the use of the discretion in the application for an extension of time to appeal. · the Court of Appeal decisions on jurisdiction were not the basis for the jurisdiction rulings made by Boland J. Majik Markets Pty Limited v Brake and Services Centre Drummoyne Pty Limited (1991) 28 NSWLR 443 is the law in NSW and was the authority relied upon by Boland J in his determinations and reasoning on jurisdiction. · the applicants did not challenge the correctness of the law as it then existed; did not challenge the jurisdiction before Boland J on 9 January 2003 or on 21 January 2003 and in hearings in 2003 did not challenge the jurisdiction and power of the Court to make such determinations. 30 Further, the respondent submitted by its conduct the applicants accepted the determination in Judgment No 15 and its associated Orders: · the respondents participated in the negotiations for the sale of the business · the applicants issued notices of termination in respect of the orders of Boland J without challenge; prepared and participated in hearings in December 2004 without challenges; · the applicants opposed the respondents' application for costs (on the completion the first stage) submitting the evidence in the hearing in the second stage was not a separate and distinct matter as the litigation was still part-heard. 31 The respondents assert they will suffer prejudice if an extension of time is granted. They have prepared a number of documents related to alternative relief sought and incurred costs for the negotiations and further work towards the next hearings. 32 The respondents submitted they face exposure based on an undertaking as to damages proffered to the Court in October 2001, which exposure had the appropriate appeals been made within the Court's time limits, would not have continued beyond 4 June 2003 (the date on which the interlocutory order was dissolved). 33 Both parties proceeded on the basis that the decisions stood in the absence of an appeal within time. The costs and inconvenience that would be imposed upon the respondents outside the prescribed limitation period is relevant (Skelly v Prouds Jewellers Pty Limited (1994) 53 IR 3). 34 The applicants have continually raised as a defence to any Notices of Motion or applications brought by the respondents the issue of delay and the time limitation under the Act to appeal. Given the Court's orders of July 2003 contemplated a period of at least nine months before the relationship came to an end, the respondents deny the applicants' submission they have proceeded with a lack of urgency in programming. The respondents submitted. · in the original summons of 27 October 2000, an order for compensation was applied for. · the orders issued by Boland J on 14 July 2003 reflect his reasoning of 4 June 2003 (Judgment 15) and required that the variations he ordered be reflected in an amended claim for compensation. · only since the June 2003 judgment could the claim for compensation be quantified. The amended summons simply reflects this quantification. 35 The Full Court's determination to grant an extension of time to appeal in v Hitchcock v WorkCover Authority of New South Wales (Matter No IRC6869 of 2005) and O'Keefe v WorkCover Authority of New South Wales (Matter No IRC6837 of 2005), (which were before the Court of Appeal) is to be distinguished. The Full Court is yet to publish its reasons. The respondents submitted: · these are criminal prosecutions against individuals. · the appeals in both matters were filed in the Court of Appeal within months of the Industrial Court's decision. · there has been no published reasons for the Full Court's determination.

36 The respondents submitted costs should follow the event and alternatively, were the application be granted, contrary to submissions, the applicants meet the costs of the respondents in accordance with authority (O'Keefe and Hitchcock).

Relevant Provisions of the Industrial Relations Act and the Industrial Relations Commission Rules 37 It is convenient to set out the relevant provisions of the Act and the Industrial Relations Commission Rules 1996 (Rules) relating to Appeals to the Full Court. Section 189 of the Act is in the following terms: (1) An appeal to a Full Bench of the Commission under this Part must be made within 21 days 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. Rules 42 provides: 42(1) Unless otherwise provided, an appeal must be made within 21 days after the date of the decision appealed against (or such further time as the Commission allows, before or after the expiration of that period). 42(2) An application to extend time to appeal may be included in the notice of appeal or may be made by separate notice of motion. Rules 45 provides: 45 Any decision made in any proceedings before a tribunal prior to a final decision in those proceedings is to be taken for the purposes of appeal to have been made on the same date as the date of the final decision.

Rules 136(1) provides: 136(1) In reckoning the time fixed by these Rules or in any judgment or order for the doing by a party of any act, the period from the beginning of 25 December until the end of 2 January next following must, unless the tribunal otherwise orders, be excluded but business may be done during that period. Rule 4(1) the definition section provides: decision includes an award, order, direction, contract determination or ruling.

Statutory Limitation to Appeal "Decisions" of the Court 38 This application has been brought under s189(2) of the Act. Section 189(1) refers to an appeal from the "decision" of the Court. The meaning of the word "decision" has been given much judicial consideration. Wright J, President in LEP International Pty Ltd v Caine (2000) 97 IR 35 canvassed the many relevant authorities before concluding as to the meaning of "decision" in s 189 of the Act as follows: 25 It is clear from those authorities that the word "decision" used in the context of judicial proceedings usually refers to the final determination by the Court of the suit between the parties. That approach has been consistently applied by other courts although in varying contexts: see, for example, the judgments of the Full Federal Court in Ah Toy v Registrar of Companies for the Northern Territory (1985) 61 ALR 583 at 588 and Hannprint Pty Ltd v Mita Copiers (Australia) Pty Ltd (1996) 137 ALR 701 at 710; cf the judgment of the Court of Appeal in Bromley v Housing Commission (NSW) (1985) 3 NSWLR 407. 26 Those authorities make clear that the normal approach to judicial proceedings and decisions therein is that the relevant legal act from which an appeal lies is the formal order made by a court which disposes of or deals with the proceedings before the Court and not a judgment in the sense, as it is often used in other contexts, of a convenient abbreviation or reference to reasons for judgment. 27 It is also clear from those authorities that appeals lie not against reasons for decision but a judgment in the sense earlier referred to: see, for example, Hannprint Pty Ltd v Mita Copiers (Australia) Pty Ltd (at 711) and the cases cited there. 28 . . . it is clear that the relevant word in s 189 is to be given a wide meaning irrespective of the kind of proceedings the subject of the appeal, nevertheless, I propose to limit my consideration in this decision to the matter precisely in issue here, that is, an appeal from a judge of this Court issuing a decision or judgment in judicial proceedings pursuant to s 106 of the Act. However, it is appropriate, before coming to that level of particularity to look at one or two other relevant provisions in the Act.

His Honour then examined the effect of the word "decision" as used in s179(1) and determined it was used in the same sense in which it is used in s189. His Honour referred back to his consideration of the word "decision" in s189 and concluded: 34 In other words, the section, so far as judicial proceedings are concerned, is intended to grant a right of appeal in relation to the final determination or adjudication of the suit by the final orders made or pronounced. However, although I consider the legislature has used the word "decision" to refer to judgments in that sense, I also consider that the legislature was using that word in such a way as to show an intention that the word have a wider meaning insofar as judicial proceedings are concerned. The intention of the legislature was also to include a decision or judgment of the kind given by her Honour in this matter on 21 October last year. Thus a right of appeal was given in both of the situations relevant here. . . . 36 . . . That is to say, in s 106 proceedings, if orders finally disposing of the matter are pronounced when judgment and reasons are given, then the orders operate instanter . However, if, as happened in the present case, the judgment and reasons required the parties to provide, either by agreement or otherwise, short minutes of order, the final orders do not take effect until they are made by the judge dealing with the matter or another judge if the original judge is unavailable. 39 In my consideration of this application (for an extension of time to appeal interlocutory judgments in a s106 application) of relevance also is the observation of Wright J, President in Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 (at 449): For relief to be available or granted under s 106 there must be, logically or sequentially, the following steps: (1) a finding that the contract (as defined in s 105) is an unfair contract (also as defined in s 105 but also as elaborated in s 106(2)); (2) an order that the contract be declared wholly or partly void, or varied, pursuant to s 106(1); (3) an order as to the payment of money in terms of s 106(5) and subject to the terms of that provision. See, for example BNY Australia Ltd v James (1992) 40 IR 1 at 2, 27, 36-38, 54-55. It will happen in some cases, that an order of the kind referred to in step (3) is not necessary or appropriate (see, for example Daley v New South Wales Rugby League Ltd (1995) 78 IR 247 at 287-288) but in order for step (3) to be taken, steps (1) and (2) are necessary. Similarly, the jurisdictional prerequisite to an order in terms of step (2) is a finding under the first step. . . .

40 Further, in Green v Brown (2002) 116 IR 21, the Full Bench considered, amongst other issues, whether an appeal in a s106 matter was filed within time. The Full Bench held: 32 There are two issues to be addressed in connection with whether the appeal and cross-appeal are within time. First, the appeal is from the judgment and orders of Schmidt J made on 2 December 1998, her judgment of 7 June 2000 and her Honour's judgment of 1 September 2000 and final orders of 8 September 2000. The appellants filed their application to appeal on 14 September 2000. The judgment and orders of 1 September and 8 September 2000 arose out of her Honour's judgment of 7 June 2000 and so no issue arises as to whether the appeal in relation to these judgments and orders were within time. The judgment of Schmidt J of 2 December 1998 may be properly described as an interlocutory judgment and pursuant to r 45 of the Industrial Relations Commission Rules 1996 (cf Pt 7 r 6 of the Industrial Court (Interim) Rules 1992 ) any decision made in any proceedings prior to a final decision in the proceedings is to be taken for the purposes of appeal to have been made on the same date as the date of the final decision. The effect of the rules is no different to the common law situation as it was understood: Nolan v Clifford (1904) 1 CLR 429; Crowley v Glissan (1905) 2 CLR 402. In any event, the present circumstances satisfy the common law as recently clarified by the High Court in Gerlach v Clifton Bricks Pty Ltd (2002) 76 ALJR 828 at 829. 41 On the above authorities "decision" in s189 means therefore final decision and any decision made prior to final decision for the purpose of appeal will take the date of the final decision and orders.

42 Given the above reasoning, it follows Boland J in Judgment 11 and the further Judgment 15 of 4 June 2003 with the associated orders of 14 July 2003, has not given a final "decision" in this matter. The final decision has yet to be made. His Honour has given further procedural orders for the preparation of his final determination which is the claim for compensation. This is the third step as referred to by Wright J, President in Virtue which, if relevant, has to be taken in a s106 hearing to reach a final decision. 43 In adopting the reasoning of Wright J, President in LEP International, s189 has effect and the applicants still hold a right to apply for leave to appeal and appeal the relevant judgments and orders after the final decision is handed down on all issues raised in the primary hearing before Boland J. The statutory time limit for appeals in relation to the relevant judgments and orders brought before me has therefore not yet commenced. All the judgments and orders of an interlocutory nature in the litigation will take the date of the final judgment for the purposes of the 21 day time limit under s189 of the Act for any application for leave to appeal and appeal. The statutory time limit of 21 days under s189 for the leave to appeal and appeal does not run until a final decision is handed down by Boland J. Therefore this application for a grant of an extension of time to file an application for leave to appeal and appeal the relevant interlocutory judgments and orders may be misguided.

44 My consideration of the application brought before me and opposed by the respondents may therefore well be otiose given the applicants still retain their right to appeal the relevant judgments after the Court reaches its final decision and publishes its final orders. No submission was made as to the effect of s189(1) nor Rules 42, 45 or 135 although the effect of the extension of time for nine days over the Christmas break granted under Rules 136(1) was relied upon in submissions by the applicants. 45 Learned senior counsel each representing a party to this application, however, seem to have agreed, given the date of the application, that there is need for a grant of an extension of time to file for leave to appeal and appeal taking into account the particular stage the hearing has reached and the dates the relevant judgments and orders were issued. 46 The applicants are, in effect, pressing for an extension of time to file a leave to appeal and appeal application in a matter which is part-heard before Boland J and before Boland J has reached his final decision. The applicants did not file an appeal within time against any of the three judgments and the orders. The respondents have opposed the application for the grant of an extension of time to each of the judgments and orders but have proceeded before me adopting the view this application is necessary. I will consider the submissions placed before me in that context. Relevant Principles for an Extension of Time 47 The principles guiding a determination in the use of a Court's discretion for the grant of an extension of time for the filing of an appeal were formulated by the Full Bench in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 (at 300): . . . (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 (sic) 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. . . .

48 In accepting the approach inherent in the above propositions, the Full Bench observed in Skelly (at 6): . . . 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. . . . and

In De Luxe Cab Co Ltd v Grenside (1999) 92 IR 384, Wright J, President, commented (at 390): . . . in its judgment Parkes Council , the Full Bench cited with approval the judgment of McHugh J in the High Court in Gallo v Dawson . His Honour, at 459 of the report, in turn cited with approval the following passage from the advice of the Judicial Committee in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion." 49 In the use of the discretion to grant an extension of time, Wright J, President, also noted in NSW Teachers' Federation & Ors v NSW Office of the Board of Studies [2001] NSWIRComm 1: [22] . . . the object of statutory provisions fixing a time to appeal is to ensure, so far as is reasonable, that the times fixed are obeyed. However, it is clear on the authorities that the times fixed - be they fixed by rules or statute - are not intended to be instruments of injustice and generally speaking the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties. In that regard the authorities make clear ( Parkes Council at 300): The discretion can only be exercised in favour of time upon proof that compliance with the rules will work an injustice upon the applicant therefor (sic) 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. 50 In applying the above six principles, Walton J, Vice- President in Cavacuiti v Toyota Motor Corp Australia Ltd (2002) 122 IR 247 referred to some additional "particular points of emphasis" [at 42]: . . . 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." 51 The principles as recited and the reasoning of the above authorities in the application of those principles guide me, in the use of my discretion, in determining this application.

Consideration 52 A determination as to the threshold issue of the jurisdiction of a Court to hear a claim must be made at the "appropriate" time in a proceedings (see Nagle (t/as WD & LJ & Sons) v Tilburg (1993) 51 IR 8) not necessarily as a preliminary issue but at the stage in the proceedings where the facts are established sufficient to make the determination. Boland J in Judgment No. 11 and 15 made his determination as to jurisdiction when he had before him the evidence sufficient to ground his decision. It follows any appeal as to the finding on jurisdiction of the Commission, a "determining" issue, if to be advanced, would in the ordinary course then be filed within the statutory time limit. This did not occur. The application before me now seeks an extension of time to make such an appeal. There is also a challenge to the power to grant injunctive relief as Boland J did in Judgment No. 9. The applicants have referred to this challenge as also a jurisdictional challenge. The application before me also seeks an extension of time to appeal this determination. The associated orders arising from Judgment No. 11 and 15 are also challenged.

53 I accept the applicants knew well the effect of the s189(1) requirement that within the Court an appeal is to be filed within 21 days of judgment. Section 189(1) requires an appeal must be filed within the statutory time limit of 21 days unless an extension is granted under s189(2) (emphasis added). 54 The grounds relied upon by the applicants for the grant of an extension of time were as follows: the "recent" developments in the law related to the jurisdiction of the Court under s106 of the Act through decisions of the NSW Court of Appeal (some decision of which have been appealed before the High Court with judgment reserved); the affect of amendments to s179 of the Act which require first a finalisation of all litigation before this Court prior to access to the Court of Appeal (in circumstances where the applicants have filed in the Court of Appeal); the nature and conduct of the proceedings before Boland J including the savings in costs that an appeal at this stage in the hearing would ensure.

55 The applicants firstly in support of their application for an extension of time and to explain their delay in appealing the three relevant judgments and the orders relied upon the line of authorities developed by the New South Wales Court of Appeal related to the jurisdiction of the court under s106 of the Act. The line of authorities does have the effect of limiting some claims advanced before the court for compensation for losses incurred outside a contract of employment. 56 I reject the proposition that, as asserted, this was a "recently" developed line of authority. These developments in the law began with a consideration in Mitchforce published on 13 June 2003. The applicants first relied upon this line of reasoning in filing in the Court of Appeal on 21 June 2005, some two years after the last relevant judgment and associated orders.

57 Further, the applicants filed no leave to appeal and appeal application against any of the three judgments or the associated orders of Boland J within time. In Judgment No. 9, identified as the injunction decision, the delay in giving notice of an intention to appeal before this Court is from 23 October 2001 to the date of the filing of the Notice of Motion on 20 January 2006, some four years and three months after judgment. As to Judgment No. 11, the jurisdiction and primary relief decision, the delay before the Court is from 19 December 2002 to 20 January 2006 four years after judgment. Judgment No. 15, the alternative relief decision, with Orders of 14 July 2003, was published two and a half years before this application was filed. 58 It is clear on the facts this is not a case where this was a short delay in filing a leave to appeal and appeal application nor a mistake by lawyers as to the time limit. The delay in the circumstance is significant in respect of each judgment and the orders whether one looks at the date of filing in the Court of Appeal or the date of filing of this application. I am able to infer it was a well informed decision taken by the applicants to not appeal any of the three relevant judgments or orders given they always had the benefit of the advice of senior counsel throughout the hearing. 59 The line of the Court of Appeal authorities relied upon by the applicants directs attention to the jurisdiction of the court under s106. Evidence before me reveals some objections were raised by the applicants in the hearing as to the jurisdiction of the Court to determine some of the claims pressed. Those objections varied. They were not necessarily based on the same jurisdictional grounds as considered by the line of authority developed by the Court of Appeal. However, it is not necessary in a consideration of an extension of time application for this court to determine what specific issues of jurisdiction were raised as objections in the hearing which would establish a ground of appeal. Such submissions would be relevant to any leave to appeal and appeal application.

60 The applicants further rely upon the effect of the amendments to s179 of the Act which came into effect on 9 December 2005 and now requires a final determination of issues by the Full Court of the Industrial Relations Commission before issues can be advanced in the Court of Appeal. The applicants concede it was the intention of Parliament that the Commission has jurisdiction to finalise all issues before any Notice of Motion would excite the supervisory jurisdiction of the Supreme Court. However, the applicants rely on the amendments to assert the question of delay can only be an issue to the date of filing before the Court of Appeal. I do not accept this proposition. The applicants chose to advance an appeal as to jurisdiction before the Court of Appeal. They had opportunity to advance appeals before this Court under the Act for at least 21 days after each judgment and, if then out of time, could have sought an extension of time for any proposed appeal on all of the three judgments. They failed to do so on three separate occasions be it to file within time or to file for an extension of time. 61 The conduct of the proceedings is relevant to my consideration. The application under s106 of the Act was filed on 27 October 2000. Boland J acknowledged the significance, importance and seriousness of the claim and adopted Court procedures to assist the parties towards a resolution of the dispute by way of an interlocutory decision and to separate the issue of liability from a hearing for possible compensatory orders. The effects of his Honour's procedural determinations was first to consider and then to order injunctive relief allowing the applicants time to sell and then to allow time for the respondents to issue termination notices and time for them to have effect. He then moved to his consideration on jurisdiction then considered whether there was an unfairness attracting consequential orders. The Orders were dated 14 July 2003. Whether it be to challenge the Court's power to issue injunctive relief or whether the challenge is that the particular claim is outside the ambit of s106 of the Act the issues related to the jurisdiction of the Court could have been advanced by an application within time before a Full Bench for leave to appeal and appeal. 62 The conduct of the parties in the litigation is also a relevant consideration. The applicants by their own conduct respected the decisions and orders of Boland J. I accept the applicants by their conduct gave no indication of an intention to appeal during any interlocutory stage in the proceedings. They co-operated with the respondents in the attempt to sell the dealership and issued termination orders within the timetable determined by Boland J. The matter went back before Boland J to determine the issue of jurisdiction and unfairness without appeal. After Boland J ruled on jurisdiction and found an unfairness in the contract, issues as to the effect of his determination then went back before him for clarification. The conduct of the applicants indicated compliance with the orders issued until the filing in the Court of Appeal some two years after the orders. It took a further six months before this application was filed. 63 The applicants assert the respondents' have not expeditiously acted to finalise these proceedings. However, Boland J in Judgment No. 16 (handed down after the judgments relevant to this application), when that proposition was argued before him in the respondents' costs application, held that the respondents had not been "dilatory" in prosecuting the proceedings. I have evidence before me of further steps taken by the respondents (since that view was expressed) to bring this litigation to finalisation sufficient to persuade me they have not been dilatory. I endorse the view of Boland J as to the conduct of the respondents within the litigation.

64 Since the orders were published there has been preparation for the final stage in the proceedings, namely, the Court's consideration of a possible compensation order. The respondents have already expended significant amounts of money. His Honour gave orders for a document to be filed identifying the outstanding issues. A draft amended summons quantifying the claim has been filed. There have been mentions before Boland J and before the Court of Appeal. Both parties have expended monies to advance the case to its final stage and I accept the respondents have expended considerable funds. The matter is further listed on 29 June 2006 before Boland J. 65 The respondents have asserted, in part, the applicants were motivated to move before the Court of Appeal in light of the application to further amend wherein the claim was quantified at approximately $245 million. The originating summons makes a claim for compensation. The Court adopts no inference as to the motivation of the respondents. Whether his Honour allows the amended summons outlining the claim for compensation is a matter for him not for this Court. 66 The applicants' submitted further costs would be saved if the appeal went forward at this stage in the litigation given the question of the jurisdiction of the Court is a "determining" issue. They contend an extension of time should be granted so the appeal could go forward at this stage and in order to save costs. This, I find, was the applicants' most substantial submission. However, the saving as to costs must be balanced with the respondents' submission that considerable costs have already been expended to prepare the compensation claim which, when determined, will finalise the litigation. Further, the respondents assert it will save costs if all issues are advanced in one appeal and this is especially so given the matter is in preparation for the final stage of a long and complicated litigation and in circumstances where the applicants have made clear there will be an appeal on all grounds. 67 If this matter proceeds to finality, the Court will make a further determination and, if appropriate, issue further orders. That decision and orders could be the basis for a further challenge along with all the relevant judgments and orders. Section 189 of the Act as has already been determined allows for an appeal within 21 days on all issues after the date of the final decision.

68 The applicants' prospects of success on appeal is also an issue. The applicants in submissions outlined their proposed grounds of appeal. They reveal a challenge to the jurisdiction of the Court to review the "overall" arrangements and asserted those arrangements did not directly relate to the performance of work in an industry. They asserted the findings of unfairness did not relate, in any direct manner, to the performance of work in an industry. In the draft grounds of appeal before me some findings of fact are challenged. It is asserted the Court lacked jurisdiction or power to make notional variations adjusting or creating legal rights and obligation between the parties (Judgments No. 9 and No. 11) and that the Court had no power to grant the type of interlocutory relief it had (Judgments No. 11 and No. 15 and orders). The appeal grounds outlined are most comprehensive and broad based. The grounds challenge not only the jurisdiction of the Court but raise other issues relating to findings of fact and the nature, content and terms of his Honour's determinations and orders. 69 The prospect of success by the applicants of such a broad based appeal is difficult to assess. The High Court Appeals (if applicable) are still to be determined. It is also of relevance to comment that cases must be determined on the law as it is then applicable. The respondents contend Boland J relied upon the case of Majik Markets as the relevant law at the time of the determination. It is an issue between the parties, therefore, whether the "recent" line of Court of Appeal authority would be applicable in the circumstances. 70 Further, reliance was also placed by the applicants on a determination by the Full Court to allow leave to appeal in O'Keefe and Hitchcock which were before the Court of Appeal and have been filed back in the Commission given the s179 amendment (the reasoning for the grant is not yet available). They were prosecutions brought within the criminal jurisdiction of the Court. I distinguish the two matters from the present application brought under s106 of the Act. 71 The applicants contend the Court of Appeal decisions would make it likely a Full Court would consider an application for leave to appeal favourably as it would therein be given an opportunity to interpret, apply and clarify where necessary the reasoning of the Court of Appeal. However, it is my view in a leave application the public interest would favour the finalisation of these lengthy proceedings before appeal. This is especially so in circumstances where the question of the Commission's jurisprudence is before the High Court, where the applicants have indicated they will appeal on all grounds and where the applicants still retain their right of appeal. It is in the public interest that there be prompt institution and prosecution of litigation. 72 The broad grounds relied upon in the proposed appeal document reveal a comprehensive attack on the decisions and orders of Boland J and raise challenges beyond the jurisdictional issue. The litigation is in preparation for the hearing as to a final decision and appropriate orders. The parties by their conduct have acted upon the relevant decisions and orders. I am of the view the delay in bringing any leave to appeal and appeal application, within time, has not been acceptably explained by the applicants. I accept the respondents have not been dilatory in prosecuting the claim. 73 The overriding consideration must be to do justice between the parties. In balancing the interest of the parties I give consideration to the vested right to judgment held by the respondents especially in a circumstance where both parties have acted upon the relevant judgments and orders while however acknowledging the applicants are entitled to challenge the relevant determinations of Boland J. I consider, on balance, that the exercise of the discretion should not favour the applicants at this final stage in the proceedings, particularly in circumstances where they retain the right to appeal the relevant decisions and orders. 74 Taking into account all the above factors, in the use of my discretion, I refuse the application for a grant of an extension of time to make application for leave to appeal and appeal the three relevant judgments and orders.

75 The respondents sought, in opposing the application, an order for costs. The applicants submitted costs of the application be costs in the cause. Costs normally follow the event and there is no reason why this practice should be varied. Accordingly, I allow costs to the respondents on the Notice of Motion to be paid forthwith.

Orders 1. The application for a grant of an extension of time to file a leave to appeal and appeal in Matter No. IRC5227 of 2000 in judgments published 23 October 2001, 19 December 2002, 4 June 2003 and orders of 14 July 2003 is refused.

2. The applicants shall pay the respondents costs on the Notice of Motion forthwith.

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