Cavacuiti and another v Toyota Motor Corporation Australia Limited

APPELLANT Mr S Cairns of counsel SOLICITOR Ms M Sultana LEGAL REPRESENTATIVES: Watson Stafford Solicitors RESPONDENT Mr A Hatcher of counsel UNION Transport Workers' Union of New South Wales

JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

19 March 2004 Matter No IRC03/7227 Bon McArthur Transport Pty Limited t/as McArthur Express and Hanbury Investments Pty Ltd Application by Bon McArthur Transport Pty Limited t/as McArthur Express to extend time to appeal and leave to appeal and appeal against an order of Commissioner Connor given on 14.7.2003 in Matter IRC 2103 of 2003 DECISION [2004] NSWIRComm 55

1 This is an application, pursuant to s189 of the Industrial Relations Act 1996 ('the Act'), filed by Bon McArthur Transport Pty Limited t/as McArthur Express ('the appellant') for an extension of time in which to appeal a decision and order of Connor C delivered on 14 July 2003 in Matter IRC2103 of 2003. Section 189(1) of the Act provides that an application to appeal must be made within 21 days after the date of the decision appealed against; in this case, 4 August 2003.

2 The Commissioner's decision related to a small claim lodged by the Transport Workers' Union of New South Wales ('the Union') on behalf of its member, Mr Leiv Bornecrantz, t/as Hanbury Investments Pty Ltd ('the respondent'), pursuant to s379 and s380 of the Act. Having been satisfied that all reasonable steps had been taken to advise the appellant of the proceedings and its failure to attend the hearing, the Commissioner heard the original matter ex parte. In the result, Connor C made the following order: 1 Bon McArthur Transport Pty Ltd shall pay the sum of $9,654.15 to Hanbury Investments Pty Ltd within 14 days.

2 This order shall take effect on and from Wednesday,(sic) Monday, 14 July 2003. I shall return to the Commissioner's decision later.

3 On 17 December 2003 the appellant filed an application for leave to appeal and appeal, pursuant to s187 and s188 of the Act and an application for an extension of time pursuant to s189. The application was supported by affidavits filed by the appellant's Credit Controller, Ms Sandra Sonneveld and the appellant's solicitor, Ms Michelle Joanne Sultana of Watson Stafford Solicitors.

4 The application to extend time to appeal came before the Acting President, Walton J, on 23 December 2003. At that time, the Union complained that it had not received the two affidavits filed by the appellant. The respondent would therefore be prejudiced if the application to extend time proceeded to hearing on that day. The Union requested, and was granted, an adjournment on that basis. After granting leave for the appeal to be amended and adjourning the proceedings, his Honour subsequently allocated the matter to me for hearing.

5 Mr Cairns, counsel for the appellant, submitted that, at no material time, had the appellant received notice of the proceedings before Connor C. He conceded, that while a notice had been sent to the address for McArthur Express at 1 Powers Road, Seven Hills, this was not the appellant's registered office for the purposes of proper service under s109(x) of the Corporations Act 2001, nor was personal service effected on a director of the company. The registered office was the address of the appellant's accountant.

6 It was said that the appellant only became aware of the earlier proceedings on 15 October 2003 when the Sheriff attended the appellant's premises (apparently at the same address earlier referred to) in order to satisfy a writ of execution arising from the orders made by Connor C. The appellant claimed it had only received a copy of the Certificate of Order from the Commission on 4 November 2003.

7 On the same day the Sheriff attended the appellant's premises, solicitors acting for the appellant, Watson Stafford, filed a notice of motion in the Local Court, seeking to have the Commissioner's decision and order set aside.

8 On or about 4 November the appellant's solicitor made inquiries at the Local Court and was advised that the notice of motion could not stay or set aside the Commissioner's decision as the decision had been made by the Industrial Relations Commission of New South Wales.

9 On or about 6 November the appellant filed a Statement of Claim to Subject Matter of Action or Execution to request the return of goods seized under the writ of execution.

10 Ms Michelle Sultana deposed that "immediately thereafter" the appellant filed an application for leave to appeal and appeal in the Commission. She said, that at all material times, the appellant had acted promptly concerning the matters before the Court and the Commission.

11 Mr Cairns observed that on 13 June and 7 July 2003, the appellant had sought, by way of letter of demand from its solicitors, particulars of the respondent's claim of underpayment. The appellant received no reply and no indication the matter was before the Commission. The appellant was entitled to know precisely the nature of the claims being made against it. To this day, it still does not know. Ms Sultana deposed that the appellant was not in a position to respond to the respondent's original claim, as particulars which had been sought remained unanswered.

12 The appellant's Credit Controller, Ms Sandra Sonneveld, deposed that she had instructed Watson Stafford on 13 June and 7 July to seek particulars of the respondent's claim. She had also instructed Watson Stafford in respect of the proceedings in the Local Court and the Commission.

13 Mr Hatcher of counsel, tendered evidence of the Union's notification of dispute sent on 16 April 2003, by facsimile, to the appellant's registered address - McArthur Express, 1 Powers Road, Seven Hills. This address was identified on the appellant's website as the Head Office, Sales and Administration.

14 Also tendered were three Form D - Appointment for Hearing notices sent from the Industrial Registrar for listings before Connor C on 7 May, 27 May and 14 July 2003. These notices were sent to the same address as above with attention to Mr Robert Retamal. It was put by Mr Hatcher (without demur from Mr Cairns) that Mr Retamal was the appellant's Operations Manager. Mr Hatcher said that there was no denial that the respondent had received these notices.

15 Mr Hatcher further submitted that there was no evidence that the appellant was unaware of the proceedings before Connor C. Indeed, Mr Cairns declined to press the only evidence on this point and it had been struck from the affidavits of Ms Sonneveld and Ms Sultana. In these circumstances it could not be said that there had been a denial of natural justice.

16 Mr Hatcher referred to the Commission's Rule dealing with service. Rule 105 is in these terms: 105 Service of process upon a corporation other than an organisation incorporated under the Act must be effected: a) by leaving any document with the secretary or other principal officer of the corporation; or

b) by tendering any document to that secretary or principal officer after indicating its nature; or

c) by leaving any document with a person at the registered office of the corporation; or

d) where the corporation has filed an address for service, by posting any document to that secretary or principal officer at that address or by leaving it at that address; or

e) where the corporation has not filed an address for service, by posting any document to that secretary or principal officer at the registered office of the corporation; or

f) where provision is made by any other Act for the service of a document on the corporation concerned, by serving a copy of any document in accordance with the provision. He submitted it was arguable whether the dispute notification was properly served. However, the appellant would not succeed in gaining an extension of time based on a failure to strictly comply with rules of service.

17 Mr Hatcher observed that, even giving the appellant the benefit of the doubt, it still waited six weeks after it knew it could not proceed in the Local Court, before filing this appeal. There was simply no explanation for this further delay.

18 Mr Hatcher put that even if there was a technical breach of the requirements of natural justice, such a finding was not enough. There arises a further consideration of the consequences of the breach; see CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia (2001) 110 IR 211.

19 Mr Hatcher submitted that the appellant was required to demonstrate that it had some prospects of success with the appeal. It had failed to do so. The appellant did not cite any grounds of appeal relating to error as to any matter of fact and/or law in respect to Connor C's decision. To grant an extension of time in these circumstances would constitute a futility.

20 Mr Hatcher referred the Commission to the principles to be applied to an application to extend time to appeal as summarised in Cavacuiti and another v Toyota Motor Corporation Australia Limited [2002] NSWIRComm 341. Applying these tests, Mr Hatcher submitted, that no injustice would be served by refusing the application. Moreover, the appellant had offered no reasonable explanation for the delay for filing the appeal and the delay was significant.

21 Mr Hatcher helpfully submitted that the principles to be applied to an application to extend time to appeal are those encapsulated in Cavacuiti and another v Toyota Motor Corporation Australia Limited. I would agree. I propose to quote it in some detail. Relevant General Principles 40 The principles to be applied to an application to extend time to appeal are set out in WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (1996) 70 IR 298, a judgment which I applied in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. It has also been considered and applied by Wright J, President, in Tadic v Beslic [2001] NSWIRComm 107; NSW Teachers' Federation v NSW Office of The Board of Studies [2000] NSWIRComm 1; LEP International Pty Ltd v Caine (2000) 97 IR 35 and De Luxe Cab Company Ltd (formerly known as Deluxe Red and Yellow Cabs Cooperative Trading Society Ltd) v Grenside (1999) 92 IR 384. 41 In WorkCover Authority of NSW (Inspector Salmon) v Parkes Council 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 therefore 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." 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 (1986) 12 FCR 187 (at 195); Gallo v Dawson (1990) 64 ALJR 458 (at 481); and Salter Rex & Co v Ghosh [1971] 2 QB 597 (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 (1994) 53 IR 3 (at 6) and LEP International v Caine (at [57]); whether there is a reasonable explanation for the failure to file the appeal within time (see LEP International v Caine (at [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 of New South Wales (Inspector Salmon) 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. 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.

22 At the outset, I would say that I have no hesitation in rejecting the appellant's contention that it was unaware of the proceedings before Connor C on 14 July 2003. Indeed, the appellant did not deny that it had received the notices of the listings. Nor was there any evidence that disclosed the appellant was unaware of the proceedings at first instance.

23 Moreover, on the appellant's own evidence, it had written to the respondent on 13 June and 7 July requesting further particulars of the claim for outstanding payments. The fact that the respondent did not reply is, to my mind, irrelevant. I note that the respondent's letter of demand of 8 June 2003 was itemised under 14 different amounts totalling the exact amount subsequently ordered by Connor C - namely $9,654.15.

24 Of more significance however, the appellant was advised on or about 4 November 2003 that it could not apply for a stay of the original proceedings in the Local Court as the originating matter had been before the Industrial Relations Commission. Obviously, that advice prompted the present appeal.

25 However, even allowing the appellant this concession, the appeal was still not filed until 17 December 2003; that is, not for a further six weeks. There was no evidence to explain this further delay and why the appeal had not been filed for six weeks after 4 November. Mr Cairns could offer no explanation for this additional delay. In these circumstances, I cannot reconcile the appellant's submission that, "immediately" after 6 November, the appellant filed the appeal.

26 Accordingly, I find that there was no explanation for the failure to file the appeal within time; let alone any reasonable explanation.

27 One of the appellant's principle arguments was that the notices of the original proceedings were invalid in that they were not sent to the appellant's registered office, in accordance with the Corporations Act. Although it might be said that this submission goes to the merits of the appeal proper, I propose to make the following observations in the context of the appellant's prospects of success of the appeal.

28 In Tadic v Beslic [2001] IRComm 107, Wright J, President, found that an application for an extension of time should be refused on the basis that the prospects of the appeal succeeding were extremely limited and it was unlikely that leave to appeal would be granted. The principles which apply to the granting of leave were settled in Knowles v Anglican Church (No 2) (1999) 95 IR 380. There the Full Bench stated (at 381): We have determined that the Commission should not grant leave to appeal pursuant to s188 of the Act. In doing so we do not propose to depart from the general policy and practice of the Commission not to give reasons for the refusal of leave. However, we do propose to make some observations as to the conduct of appeals where the grant of leave is required which are apposite in the present matter. First, as a Full Bench of this Commission noted in Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265, leave will not lightly or automatically be granted. The statutory scheme makes clear that the legislature intended to restrict access to appeals to appropriate cases meeting the public interest test stated in s188(2). These principles are also applicable to cases involving questions of jurisdiction. The raising of a jurisdictional issue by an appellant does not, of itself, establish a basis for the grant of leave; each case having to be judged against the statutory criterion. The Commission should have regard to the nature of the jurisdictional issue and whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction. Clearly, this consideration will involve a question as to whether the decision appealed from was inconsistent with established law and principle. Secondly, it will be relevant to the grant of leave to consider, amongst other factors, whether the appellant has brought, as in this matter, a substantially different case in the appeal. This is not to say that the admission of new evidence per se would have this result, but that the bringing of, in substance, a new or materially different case on appeal may constitute a basis for the refusal of an application for leave to appeal. In Caltex Petroleum Pty Ltd v Harmer (unreported, Matter No IRC2576 of 1999, 16 November 1999), the Full Bench stated: As to the second matter averted to above, we consider that leave would ordinarily, in the absence of changed circumstances, be refused where an appellant raises arguments or presses issues n the appeal which were not squarely raised at first instance; irrespective of whether the relief sought or the outcome contended for by the appellant remains the same or substantially the same… We agree with the principle so stated. Thirdly, it will be relevant to consider whether an appeal raises substantial and important considerations. The issues raised by an appellant as to the public interest considerations under s188(2) need to be evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application.

29 I turn then to the appellant's prospects for success in this appeal.

30 There was no dispute that the Industrial Registrar sent three notices of listing to McArthur Express, 1 Powers Road, Seven Hills - Attention: Mr Robert Retamal. Nor was there any contest that the appellant's Head Office is at the said address.

31 With due respect to Mr Cairns' submission, the issue is not whether there was some technical point to be taken as to the appellant's registered office for the purposes of the Corporations Act 2001, but, rather, whether the appellant was properly aware of the proceedings before Connor C. The Commissioner referred to this matter and said at p2 of his decision: The respondent to any action is prima facie entitled to have a matter heard in his presence, dispute his opponent's case, cross-examine his opponent's witnesses, call his own witnesses and give such other relevant evidence before the Court. I should ensure that by some mischance or accident McArthur Express has not been shut out of the proceedings and common justice demands, so far as can be given effect to without injustice to the other party, that the litigant who is absent should be allowed to come to court [Grimshaw v Dunbar (1953) 1 All ER 350 at p.355]. But a respondent employer may not escape his responsibilities by simply failing to appear in them. On each occasion formal advice of the proceedings has been sent to the registered address for McArthur Express - 1 Powers Road, Seven Hills - and further advice has been forwarded by facsimile transmission to its representative. I am satisfied that McArthur Express is aware of these proceedings and that it simply failed to attend them.

32 At this juncture, it would seem apposite to highlight the Commission's general duty "to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms" (s163(1)(c)). Even if it might be said that there was some technical breach of the rules, it does nor go to the heart of the matter and could not, on any view of it, constitute a denial of natural justice.

33 Like the Commissioner, I have no doubt that the appellant was aware of the proceedings and simply chose not to attend. It beggars belief that three formal notifications from the Industrial Registry to the appellant's Head Office would be ignored by the appellant's Operations Manager, or not referred on by him to someone else in relevant authority. Having regard for these observations, I would have serious reservations as to the appellant's prospects for the grant of leave to appeal; let alone for success on the appeal proper.

34 I am strengthened to this conclusion by the fact that the appellant at no time, either in the grounds for appeal (which had been amended) or through its evidence and submissions before me attacked the gravamen of Connor C's decision. It cited no error of fact and/or law made by the Commissioner at first instance. In these circumstances, I cannot imagine how the appellant could advance a compelling argument for the grant of leave or the appeal proper. I agree with Mr Hatcher that the grant of an extension of time to appeal would constitute a futility.

35 Moreover, I have real doubts as to whether the appeal raises substantial and important considerations or has wider implications for the jurisprudence of the Commission, such as to justify leave to appeal being granted.

36 I have also considered the length of the delay in exercising my discretion to refuse the application to extend time to appeal. To my mind, a delay of over four months must be considered as significant and, when balanced with the other factors I have earlier referred to, must represent a substantial hurdle for the appellant to overcome.

37 In consideration of all of the material and evidence put to the Commission in this case, I am satisfied that my refusal to extend time for the appeal would not constitute an injustice to the parties. Accordingly, I order that the application by Bon McArthur Transport Pty Limited t/as McArthur Express for an extension of time for leave to appeal and appeal in Matter IRC7227 of 2003 be refused. The application is dismissed.

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