Cavacuiti v Toyota Motor Corporation Australia Limited [2005] NSWIRComm 208 | Case summary

1 This is an application to extend time to appeal against a decision of Ritchie C given on 13 May 2005. In that decision Ms Armstrong, the respondent to the present application, successfully claimed that she was unfairly dismissed by her employer, Ms Notaras. In her application for unfair dismissal Ms Armstrong sought compensation of twenty six weeks representing the sum of $13,448. 2 Two major issues arose for consideration in the original proceedings. The first was a legal issue which required consideration as to whether Ms Armstrong's employment had been terminated (and therefore whether her claim that she was unfairly dismissed was within jurisdiction). 3 The second issue which proceeded upon the finding that there had been a termination was whether that termination or dismissal was harsh, unjust or unreasonable. 4 Upon finding that the dismissal was harsh, unreasonable and unjust Ritchie C awarded compensation in an amount of $10,000. 5 In relation to the present application for an extension of time in which to lodge an appeal against the decision of Ritchie C a number of preliminary observations should be made: (i) The application for extension of time was filed on 7 June 2005, twenty two days after the date of the decision of Ritchie C, (13 May, 2005). (ii) Under section 189 of the Industrial Relations Act 1996 an appeal under Part 7 of that Act must be made within twenty one days after the date of the decision appealed against, "Or within such time as the Full Bench or the Commission constituted by a presidential member allows". (iii) In this matter, to date no notice of appeal has been lodged. The application to extend time seeks an extension until some unspecified date in "mid July". During the hearing today of this application the applicant requested an extension of time until mid August in which to file a notice of appeal and mentioned that she would be relying on new evidence. (iv) In the application to extend time to appeal the applicant, Ms Notaras seeks an order extending time in which to appeal under section 187 of the Industrial Relations Act . Section 187 provides for appeals against a decision of the Commission constituted by a single member. (v) Such an appeal may only be made with the leave of the Full Bench: section 188(1). 6 Ms Notaras in these proceedings was requested to provide an explanation as to why there had been delay in filing the application for leave to appeal and appeal against the decision of Ritchie C. 7 The applicant explained that she did not know the procedures and was trying to acquaint herself with those procedures. She had rung the Department, (from which I glean she means the Commission), although, occasionally no one was available to take the call. Ms Notaras also said that she could not afford to pay for legal representation. She was running a small business and would have to run an appeal herself. 8 The justification for requiring an explanation for any appeal arises from the rules of court which must prima facie be obeyed; in order to justify a court extending the time during which some step in procedure is required to be taken, there must be some material upon which the court can exercise its jurisdiction: Ratnam v Cumarasamy (1965) 1 WLR 8 at 12. 9 The above reference to Ratnam v Cumarasamy was relied upon by Wright J, President in De Luxe Cab Company Limited (formerly known as De Luxe Red and Yellow Cabs Co-operative Trading Society Limited) v Grenside (1999) 92 IR 384 at 390. There his Honour held: In my view the material filed by the applicant fails on any reasonable analysis of it to provide any proper explanation of the failure to file the appeal within the time required... the evidence adduced by the applicant offered no adequate explanation why the notice of appeal was not filed in a regular manner. 10 In the De Luxe Cab Company case an application to extend time was filed in relation to a decision of the Chief Industrial Magistrate given on 26 March, 1998. The application to extend time was filed on 22 May, 1998. The grounds upon which the extension was sought included a contention that the Chief Industrial Magistrate's interpretation of a 'pay-in expense schedule' was erroneous and required clarification. 11 The reasons or explanation in that case for the delay in lodging the appeal included the fact that the applicant's corporate solicitor was injured and hospitalised between 9 June 1997 and November 1997 and a non legal representative took over the carriage of the matter. The corporate solicitor was unaware of the conduct of the proceedings before the Chief Industrial Magistrate and only first became aware of the Chief Industrial Magistrate's decision on 30 April 1998 (immediately after which he sought legal advice). 12 The respondent in the De Luxe Cab Company case opposed the extension of time application on three bases: (i) The respondent's claim at first instance was a modest one which utilised a simplified procedure in order for a quick disposal. (ii) The decision of the Chief Industrial Magistrate was open to him to make. (iii) The reasons or explanation put forward by the applicant for the delay, that is ill health, was irrelevant to the period in 1998. In addition, the applicant had both in-house and external lawyers and therefore could not reasonably claim inattention as a reasonable excuse for failing to follow the rules of the court. 13 Wright J, President, found that the applicant had a reasonably arguable case but that the explanation for failing to file the appeal in time was not a "satisfactory explanation". 14 In so finding his Honour emphasised that an applicant for an extension of time bears an obligation to provide the relevant factual material to enable the court to decide to exercise its discretion to grant an extension of time. 15 Skelly v Proud's Jewellers Pty Limited (1994) 53 IR 3 at 5-6; Cavacuiti v Toyota Motor Corporation Australia Limited (2002) 122 IR 247 are two authorities that have examined the usual discretionary factors which a court or commission may consider in these types of applications. According to both decisions such discretionary factors include: (a) there is a public interest in the prompt institution and prosecution of litigation before the Commission. It follows from this that a successful litigant is generally entitled to proceed upon the basis that a decision in his or her favour will stand in the absence of an appeal being filed within the time prescribed. (Put another way, a respondent has a "vested right to retain the judgment" unless the application is granted: Vilenius v Heingar (1962) 36 ALJR 200 at 201), (b) the discretion to extend time for filing an appeal will not be lightly or automatically exercised particularly if the application to extend time is made after the time for appeal has expired, (c) the fact that the respondent to such an application will not suffer any prejudice is not determinative of the matter, (d) the discretion will only be exercised in favour of an applicant upon proof that compliance with the rules will work an injustice against an applicant. This will require regard to 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. (and will in turn require the material put before the Commission so that it can satisfy itself that a refusal to extend time would provide an injustice), (e) the applicant's prospects of success of the appeal. Consideration 16 With all the principles and factors referred to above in mind, I turn now to the circumstances put before the Commission on this application.

17 No satisfactory explanation has been forthcoming to explain the delay in filing a notice of appeal. The applicant, Ms Notaras said she required time in which to procure transcripts and time to prepare. None of these reasons would justify the non filing of an application for leave to appeal and appeal, nor is the filing of an appeal notice in any way contingent upon provision before-hand of transcript, and, full and complete preparation for an appeal. 18 A further explanation given by the applicant is that she is unrepresented and unfamiliar with practices and procedures. This is simply not an acceptable explanation, particularly given the absence of any reason as to why some form of legal assistance or legal representation has not been sought and obtained by the applicant. In relation to that latter aspect the applicant simply observed that she would have to run the appeal herself because she could not afford to retain legal representation. In addition there is no material upon which any assessment may be made by the Commission of the necessity or desirability of legal assistance and/or representation in relation to any anticipated delay. 19 The applicant also contends in the application that an appeal notice has not been filed because she has a business to run which she says is very demanding of her time and she has to prepare tax returns and other tax related documentation. 20 Running a business, however demanding, is not a viable reason for failing to lodge an application for leave to appeal and appeal within time. Something else is clearly necessary to take these circumstances out of the realm of the ordinary. Running a business which places demands on an applicant's time is simply not of itself sufficient to satisfy the Commission that the application should be granted. 21 Another factor which the Commission must consider in these applications is whether an injustice arises if the application is not granted. The applicant has pointed to no injustice here today which might otherwise arise if the application were not granted. The applicant points to time needed to acquaint herself with the procedures and time in which to obtain transcript. 22 A third factor, although not determinative of the issue, is whether a respondent will suffer any prejudice if the application is granted. The applicant when asked whether the respondent would suffer any prejudice said that she did not think that the respondent would suffer any prejudice. The respondent when asked mentioned that she would be deprived of the compensation order made by Ritchie C. (The respondent through her counsel, Mr Heath, also informed the Court that at the time of the proceedings before Ritchie C she was pregnant). 23 A fourth factor concerning the applicant's prospects of success in the event that an application for leave to appeal and appeal is allowed, is that it is impossible to make a meaningful assessment of the applicant's prospects of success on an appeal in the absence of any application having been filed. From my cursory reading of the decision I am unable to discern any error in the Commissioner's decision. 24 In the absence of a satisfactory explanation for the delay; and, because to date no application for leave to appeal and appeal has been filed; and in the absence of any identified injustice if the application is not granted, I am not satisfied that I should grant the application in the exercise of my discretion. I therefore dismiss the application and make the following orders: 1. The application to extend time to appeal is refused. 2. If a costs application is pursued by the respondent in these proceedings, submissions are to be filed and served by the respondent on Ms Notaras by 4pm Tuesday, 21 June, 2005. 3. The applicant, Ms Notaras, has twenty one days from 21 June 2005 in which to reply to those submissions. Any reply which Ms Notaras chooses to make must be filed and served on the respondent within those twenty one days. ooo000ooo

Cavacuiti v Toyota Motor Corporation Australia Limited

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