Charisse Cachuela v Commissioner of Police

Industrial Relations Commission (NSW)|2025-02-07|Before: Taylor J

Solicitor: E Baxter (Respondent)

DECISION

The applicant, Ms Charisse Cachuela, seeks an order allowing additional time to appeal against the decision of Commissioner McDonald in Cachuela v Commissioner of Police, NSW Police Force [2024] NSWIRComm 1053 ("Decision") published on 23 August 2024.
Pursuant to s 189 of the Industrial Relations Act 1996 (NSW) an application for leave to appeal and appeal is to be filed within 21 days, unless further time is allowed by a Presidential Member. Ms Cachuela's application for leave to appeal and appeal was filed on 24 October 2024, 62 days after the Decision was handed down.
In the Decision, Commissioner McDonald dismissed Ms Cachuela's unfair dismissal application pursuant to Part 6 of Chapter 2 of the Industrial Relations Act for want of jurisdiction. Ms Cachuela's employment had been terminated five days before the end of her probationary period. The Commissioner, having considered whether the probationary period was reasonable and determined that it was, held that in those circumstances Ms Cachuela was in a class of persons excluded from the application of Part 6 of Chapter 2 of the Industrial Relations Act pursuant to s 83(2)(b) and reg 6(1)(c)(i) of the Industrial Relations (General) Regulation 2020 (NSW). Given the absence of jurisdiction, the Commissioner did not need to consider the merits of the claim, including matters going to whether the decision to dismiss was harsh, unjust or unreasonable.

Application for extension of time to appeal

In her application, Ms Cachuela sought to be allowed an additional 41 days to appeal for the following reasons: "3. I respectfully request an extension of time to file my appeal. Following the IRC decision on 23 August 2024, I have been concurrently managing a related Anti-Discrimination NSW matter with similar claims against the Commissioner of Police (CoP). My review of the Anti-Discrimination Act 1977, Disability Discrimination Act 1992, Government Sector Employment Act 2013, Government Sector Employment (General) Rules 2014, and Police Act 1990 revealed a misalignment in the application of the Police Act, which breached obligations by the CoP and resulted in the unreasonable annulment of my probation. 4. Given the complexity of these legal issues and my status as a self-represented, unemployed litigant, I require additional time to ensure my appeal is fully prepared to incorporate the newly uncovered grounds."

Principles to be applied when considering the issue of extension of time

The principles to be applied in an application for the extension of time for leave to appeal and appeal are well established and are summarised below: see Workcover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299-300; Carvacuiti v Toyota Motor Corporation Australia Ltd (2002) 122 IR 247; [2002] NSWIRComm 341 at [40]-[43].
Section 189 provides a wide discretion to grant leave where justice requires, having regard to the circumstances of the case.
The limitation period represents the legislature's judgement that it is in the public interest that such an action be litigated promptly and that a successful litigant can proceed on the basis that a decision in its favour will stand in the absence of an appeal being filed within the time prescribed. As such, it is for the applicant to show that his or her case is a justifiable exception to the usual rule.
Without limiting the matters that might be relevant in a particular case, regard is to be had to: 1. the length of the delay; 2. whether there is a reasonable explanation for the delay, which might include an error or mistake by a legal advisor; 3. the extent of any prejudice that would be suffered to each of the parties by reason of extending time or refusing the application; and 4. the prospects of the applicant succeeding in the appeal.

Extent of the delay

The application was filed 41 days out of time.

Whether there was a reasonable explanation for the failure to file the application within the required timeframe

There is no suggestion that Ms Cachuela was unaware of the relevant time limitation. In her second affidavit Ms Cachuela stated that the delay was due to "unforeseen and compelling circumstances beyond my control, not neglect or ignorance" (emphasis in the original).
In her first affidavit dated 25 November 2024, Ms Cachuela's evidence relevant to the reason for the delay was limited to a statement that the Commission had used an incorrect email address when confirming it had received her application for leave to appeal and appeal. As confirmed by Ms Cachuela at the hearing, any such error was not causative of the delay in filing her application.
In her second affidavit dated 16 December 2024, Ms Cachuela said the delay "arose from a confluence of exceptional and unavoidable circumstances" and provided evidence that during the relevant period: 1. She was a self-represented applicant in respect of an anti-discrimination complaint which required her to spend significant time, energy and focus to prepare a 13-page submission dated 21 October 2024; 2. Psychological evaluations, consultations and return-to work program participation took up time during August and September 2024. She provided a document which recorded she had attended a psychologist on 4 occasions in the period between the Decision being handed down and her filing her application to appeal; 3. She was engaged in a rental dispute before the NSW Civil and Administrative Tribunal that she commenced on 1 August 2024, in which she filed a 6-page submission along with documents on 15 October 2024; 4. She was "engaged in resolving ongoing maladministration by a former legal representative" in respect of earlier family law proceedings in respect of which she provided a short email exchange sent on 14 September 2024 which appeared to confirm the issue had been resolved; 5. She had ongoing family obligations arising from her mother's declining health for which the caregiving responsibility was significant, and in that regard attached a medical certificate referable to her mother being admitted to hospital on 26 March 2024; and 6. On 9 September 2024, she relocated to Sutherland Shire which involved logistical planning, storage arrangements, financial costs, utility updates and service delays.
While each of those matters took up time, they do not, either individually or collectively, provide an adequate explanation as to why she was prevented from filing the appeal within time, and indeed for a further 41 days. Indeed, her active involvement in other legal proceedings during the relevant period is inconsistent with the notion that she was unable to prepare and file the notice of appeal in the relevant period. Had the appeal been filed only a few days out of time a different conclusion may have been arguable, but the matters relied upon do not provide an adequate explanation for the 41-day delay.
Additionally, in respect of the 21 days within which Ms Cachuela had to file her appeal, Ms Cachuela's evidence as to other commitments was limited to attendance at two psychologist appointments on 29 August and 5 September respectively, her relocation to Sutherland Shire on 9 September and her attempt to settle the matter discussed below. The other obligations she relied upon were ones that fell after the 21-day period.
In Ms Cachuela's written submissions filed on 6 February 2025, she referred to having received a diagnosis of "permanent cognitive decline" in September 2018 that was a contributory factor to the delay in filing the appeal. There was no evidence to support that submission, including as to the nature of that disability or how it affected her ability to file her application, beyond evidence that she attended psychologist appointments.
I also note the evidence of the Commissioner of Police that on 8 September 2024, which was within the 21-day period to file an appeal, Ms Cachuela wrote to the Commissioner of Police's solicitors stating that she had obtained legal advice regarding an appeal of the Decision to the effect that there was a "strong basis" to contend the Decision was flawed. This serves to confirm that Ms Cachuela was aware of her capacity to appeal and appears to be inconsistent with the proposition that other demands on her time prevented her from being able to take steps to appeal the Decision within time.
In her written submissions Ms Cachuela relied on that correspondence and its reply, which she described as a genuine attempt to resolve her claim amicably, as itself providing a reason for the delay. I reject that submission.
In conclusion, while I have had due regard to Ms Cachuela's circumstances as an unemployed, self-represented litigant with health issues who during the relevant period was dealing with a variety of competing demands on her time including other proceedings, I am not satisfied that she has provided an adequate reason for the delay in filing her application.

Prospect of success of the application for leave to appeal and appeal

In considering an application for an extension of time in which to file an appeal, it is necessary to consider the prospects of the applicant succeeding in the appeal: Smith v Industrial Relations Secretary in respect of Local Land Services (No 3) [2024] NSWIRComm 1028 at [78].
This will, at least ordinarily, not involve a detailed evaluation of the prospects of success of the proposed appeal, and it will generally suffice for the applicant to demonstrate a fairly arguable case, at least if there is a reasonable explanation for delay and no significant prejudice to the opponent; but if either of those conditions is not satisfied, the applicant may be required to show that the proposed appeal has more than merely arguable prospects of success: Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [23].
In respect of an application under s 189, this requires the Commission to consider the likelihood of the appellant obtaining leave to appeal by virtue of s 188 of the Industrial Relations Act, including the likelihood of a finding that the issue is of such importance that not granting leave would go against the public interest.
In this regard I have considered Ms Cachuela's grounds for appeal. Each of the grounds are directed to the merits of the Commissioner of Police's decision to dismiss her, being matters which did not need to be considered in the Decision below. None of the grounds identify an error in the Decision. In particular, none are directed to the issue of whether the Commissioner erred in finding that Ms Cachuela's unfair dismissal application was beyond jurisdiction arising from the fact that she was dismissed during her probation period. Similarly, much of the evidence filed by Ms Cachuela in the proceedings before me was directed to the merits of the decision to dismiss, including as to whether it might amount to unlawful discriminatory conduct.
In her written submissions Ms Cachuela referred to s 243 of the Workers Compensation Act 1987 (NSW) and during oral submissions identified that the legal advice she had obtained shortly before the appeal period ended and which led her to attempt to settle the matter was to the effect that she could bring an application under the Workers Compensation Act to be reinstated. She referred to her evidence in that regard filed the day before the hearing (without leave) as a "recent development" relevant to her prospects of success on the appeal should an extension of time be allowed. Ms Cachuela has not made an application pursuant to s 243 of the Workers Compensation Act. No such application was before Commissioner McDonald. The potential existence of such an alternative claim is not relevant to the question of prospects of success of this appeal.
For those reasons, Ms Cachuela has not demonstrated that her application for leave to appeal and appeal has reasonable or indeed any prospects of success. In those circumstances it would not be in the public interest to allow the appeal to proceed out of time.
Even if Ms Cachuela had provided medical or other evidence sufficient to provide an adequate reason for the substantial delay, I would nevertheless have not allowed the extension of time because of the absence of any reasonable prospects of success.

Prejudice to the parties

If I do not grant the application, Ms Cachuela will suffer prejudice, namely she will not be able to pursue her appeal. Given my finding in respect of the prospects of success of her appeal if it were heard, I do not place much weight on that fact.
I accept the submissions of the Commissioner of Police that extending time to allow the appeal to proceed would cause the Commissioner of Police some inconvenience and cost. While relevant, it is not a factor upon which I place significant weight.

Conclusion

While Ms Cachuela is an unrepresented litigant with health issues who during the relevant period was dealing with a number of other significant demands on her time, she has not demonstrated an adequate reason for filing her application 41 days out of time.
Ms Cachuela's appeal grounds demonstrate no reasonable prospect of success on the appeal.
For those reasons, and having regard to all the evidence, I am not satisfied that justice requires that I allow Ms Cachuela further time to pursue her appeal. That decision brings these proceedings to an end.

Orders

The application to allow further time to file the appeal is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2025

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)