Cavacuiti and Another v Toyota Motor Corporation Australia Ltd

10 December 2004 Matter No IRC 6421 of 2004

RICARDO DA SILVA AND SUNLAKE REAL ESTATE PTY LTD T/AS L J HOOKER MORISSET

Application by Ricardo Da Silva to extend time to appeal and appeal against a decision of Deputy President Harrison given on 11 October 2004 in Matter No IRC 7378 of 2003 JUDGMENT [2004] NSWIRComm 381

1. This is an application pursuant to s 189(2) of the Industrial Relations Act 1996 ("the Act") by Ricardo Da Silva ("the applicant") for an extension of time in which to appeal a decision of Deputy President Harrison of 11 October 2004. In that decision, the Deputy President dismissed, for want of prosecution, an application brought by the applicant pursuant to s 84 of the Act for relief from unfair dismissal. 2. Section 189(1) required any appeal to be filed by 1 November 2004, unless further time was granted. 3. On 3 November 2004, the applicant filed an application to extend time to appeal. The applicant contended that he had lodged the application in the Newcastle Registry of the Industrial Relations Commission of New South Wales on Friday 29 October 2004 where he was advised that it was not necessary to lodge an application for leave to appeal and appeal at that time. 4. The ground for claiming an extension of time was that the applicant had been unwell for an extended period. 5. The application was heard on 19 November 2004. The applicant appeared in person and Mr L Schur, the owner of Sunlake Real Estate Pty Ltd t/as L J Hooker Morisset, appeared for the respondent. 6. It was common ground that neither party appeared at the hearing of the matter on 8 October 2004. Each party advanced a reason for their non attendance. Attempts to contact the applicant on 8 October 2004 proved unsuccessful. The respondent, when contacted by telephone by his Honour's Associate on 8 October 2004, made an application that the matter be dismissed for want of prosecution. This application was granted to by his Honour without hearing the applicant. Each party had filed and served statements of evidence in accordance with directions given by the Commission prior to the date fixed for the hearing of the matter. 7. Mr Schur opposed the application to extend time for the filing of an appeal. 8. After hearing the parties, I directed that the applicant file and serve by 26 November 2004, an application for leave to appeal and appeal the decision of Deputy President Harrison and evidence substantiating the grounds for an extension of time. These directions were complied with. 9. The applicant filed a statutory declaration deposing that he was suffering from the flu between 10 September 2004 until 5 November 2004. He had presented at the Emergency Department of Wyong Hospital on 8 November 2004 complaining of severe chest pains and difficulty in breathing. Medical records confirming this attendance were annexed to the statutory declaration as were the medical records of his partner who presented at the Emergency Department of Wyong Hospital on 12 October 2004 also complaining of the flu. As a result of a fall she was also diagnosed to have suffered a fractured elbow. 10. The respondent was directed to file any additional submissions upon which he relied by 3 December 2004. The respondent complied with this direction. 11. Rule 7 of the Industrial Relations Commission Rules 1996 deals with the filing of documents. It is in the following terms: Registrar to receive and submit all documents filed (1) All proceedings before a tribunal must be commenced in the office of the Registry in Sydney. (1A) Notwithstanding any other provision of these rules, sub-rule (1) of this rule does not apply to the commencement of proceedings before the Chief Industrial Magistrate or other industrial magistrate. Such proceedings shall be commenced in the Office of the Clerk of the Local Court at the Downing Centre, 143-147 Liverpool Street, Sydney. (2) The Registrar must endorse the date of lodgment on all process. (3) Where the signature of the Registrar is required on any document, a rubber stamp or other facsimile of that signature may be affixed to the document by such officer as the Registrar authorises. 12. This rule requires all proceedings to be filed in what may described as the principal registry although proceedings may be lodged at regional registries and forwarded to the principal registry. Proceedings lodged at regional registries are not taken to have been commenced until received in the principal registry. (Rule 7 may therefore require consideration). 13. In my view, the circumstances of this matter require that an extension of time be granted (if indeed the application was out of time). It would be unjust in the extreme if an extension of time was not granted in this matter. 14. In addition, in Mealey and the Council of the City of Sydney [2004] NSWIRComm 58 the Full Bench (Walton J Vice-President, Sams DP, Tabbaa C) stated at [49]-[50]: 49 It is a fundamental right of any party to litigation to be given reasonable notice of any substantive application moved by the opposing party. A fortiori when the effect of such an application is to finalise the proceedings without trial. By dent of the operation of r147, the effect of dismissal, absent the exercising of a right of appeal, is final. An appellant is unable to bring fresh proceedings. 50 We would make it clear that before a matter can be dismissed under r146, parties must be afforded an opportunity to be heard on the issue. Without this opportunity being given to an applicant, we consider that the Commission would not be in a position to be able to form a proper view of the application. This need not necessarily require the procedure advocated for the appellant under rr68 and 69 (see r69(2)). We note, however, that if dismissal of the proceedings was raised by an appropriate notice of motion and with reasonable notice being afforded to the respondent to the notice of motion, then a failure to attend the proceedings might well result in the application being granted. We emphasise that this was not the case in the proceedings before the Deputy President. 15. It follows, it seems to me, that the appellant having been denied any notice of the application to have his matter dismissed for want of prosecution, has prospects of succeeding in the appeal. 16. The principles for granting 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 which was followed by Walton J Vice-President in Cavacuiti and Another v Toyota Motor Corporation Australia Ltd (2002) 122 IR 247. 17. In determining this application, I am ultimately governed by the requirements of justice. In my view it is in the overall interests of justice, that an extension of time be granted to bring the application for leave to appeal and appeal. 18. I accordingly do so. 19. In view of the parties residing outside of Sydney, I propose to make the following provisional directions. In doing so, I dispense with compliance with Practice Direction No 1. 1. Pursuant to r 84 of the Industrial Relations Commission Rules, I waive compliance with r 46 which would have required the appellant to file appeal books in this matter within 28 days of filing his appeal. 2. The appellant shall, by 4.00 pm on 31 January 2005, file four copies of, and serve: (i) a detailed outline of submissions in relation to the appeal; (ii) a chronology. 3. The respondent shall, by 4.00 pm on 11 March 2005, file four copies of, and serve: (i) a detailed outline of submissions in reply as to the appeal; (ii) if the respondent considers it necessary, a chronology in reply which shall be limited to those areas where the respondent disputes matters set out in the appellant's chronology. 4. The appellant shall, by 4.00 pm on 31 March 2005, file four copies of, and serve replies to the documents filed and served by the respondent. 5. Unless the Industrial Registrar is advised in writing within 14 days of the date of this decision of any objection to the provisional directions, such directions shall become final and binding on the parties. The parties will be advised of a date for the hearing of the appeal in due course.

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