Chicken Extra Ingleburn Pty Ltd v Mina Hanna

LEGISLATION CITED: Industrial Relations Act 1996

City of Sydney Council v Satara [2007] NSWCA 148 CASES CITED: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Mealey v Council of the City of Sydney (2004) 132 IR 177 State of Queensland & Anor v J L Holdings Pty Ltd (1997) 189 CLR 146

Appellant: Mr M Magar on behalf of the company

LEGAL REPRESENTATIVES: Respondent: Mr D M Roberts of counsel Solicitors: Gergis Solicitors

CORAM: BOLAND J, President WALTON J, Vice-President KAVANAGH J Tuesday, 4 August 2009

Application by Chicken Extra Ingleburn Pty Limited for leave to appeal and appeal against a decision of Chief Industrial Magistrate Hart given on 13 November 2008 in matter No. CIM88525/08

1 Chicken Extra Ingleburn Pty Limited ('the appellant') seeks leave to appeal and to appeal the whole of the decision and orders of the Chief Industrial Magistrate of 12 November 2008 on the ground that 'the appellant's lack of legal representation affected procedural fairness in the proceedings.' On 23 December 2008, a notice of motion was filed by the appellant for a stay of the orders of the Chief Industrial Magistrate, which application was refused by Marks J on 15 January 2009.

2 It is necessary, in consideration of this appeal, to examine the circumstance before the Local Court which led to the Chief Industrial Magistrate's ex parte hearing on 12 November 2008 of the respondent's application under s 365 of the Industrial Relations Act 1996 for the recovery of monies. 3 The matter was first called on by the Chief Industrial Magistrate for production of documents under subpoena issued by the respondent to the appellant, the employer. There was no appearance by the appellant. The Chief Industrial Magistrate noted the file held a 'Notice of Ceasing to Act' by the solicitor who had been on the record representing the appellant. 4 When first called on for hearing, there was again no appearance by the appellant. The respondent submitted the matter proceed ex parte as the respondent was before the Local Court, ready to proceed, was legally represented by counsel and had, at Court, an interpreter. The matter was stood down the list for a further period. When finally called on for hearing, the Chief Industrial Magistrate determined to hear the matter ex parte. The respondent gave evidence and tendered documentary material. Mr D M Roberts, counsel for the respondent then addressed. 5 The Chief Industrial Magistrate, in delivering his decision, commented: In this matter I have heard the evidence that is placed before the court on behalf of the applicant. I have also read and considered materials that have been lodged on behalf of the respondent notwithstanding the fact that the proceedings were on an ex parte basis and that no one has come to the court today to represent the respondent company. I formed a view at an earlier stage that this was a matter that was clearly within the knowledge of the respondent and the respondent has had every opportunity to participate and had apparently elected not to. In those circumstances it was appropriate for me to proceed with the matter on an ex parte basis. The matter has been before the court on a number of occasions and in those circumstances I was of the view that it would be unjust to the applicant for the matter to be further delayed. 6 His Honour, after further reasoning, made findings of fact and then made the following orders:

1. Respondent to pay the applicant $10,931.40 (gross) for wages and leave. 2. Respondent to pay applicant $5,803.15 being for interest. 3. Respondent to pay into MTAA Superannuation FUND $720.78 Applicants membership number 6482859. 4. Respondent to pay into MTAA Superannuation FUND $382.33 being for interest in order 3. 5. Respondent to pay applicants costs as agreed or assessed by this court. You have 28 days to pay. 7 Evidence before the Full Bench satisfies a copy of these orders were forwarded to the appellant by the Local Court at the corporation's address on the record. 8 We are further satisfied the respondent also forwarded to the appellant a copy of the orders of the Chief Industrial Magistrate.

9 The appellant, on appeal, reveals, as does an examination of documentation in the Court file, the solicitors who filed the Notice of Ceasing to Act before the Local Court were instructed to file the appeal and the stay applications and represented the appellant before the Court on the stay application. 10 However, after the stay application was determined on 15 January 2009, a further Notice of Ceasing to Act for the appellant was filed by those solicitors. Evidence also confirms the solicitors notified the appellant of the filing of this Notice of Ceasing to Act. 11 On 27 April 2009, the appeal was listed before Boland J, President, for Directions. There was no appearance from the appellant. Directions as to the conduct of the leave to appeal and appeal were issued by the President and the date for the hearing of the appeal (16 July 2009) was fixed. The President's Directions were notified to the appellant. 12 On 23 June 2009, the appeal was re-listed before Walton J, Acting President, by application of the respondent who had notified the Full Bench there had been no compliance by the appellant with the President's Directions. Mr M Magar, an employee of the appellant, appeared before the Acting President. He announced his appearance after the mention was called on and proceeding. Directions were varied by the Acting President, as to the timetable to allow the appellant time to file all documentation and submissions as to leave to appeal and appeal in accordance with the Court's prior directions, but which timetable still permitted the appeal to proceed on the date set down for hearing by the President. 13 At 3.30pm on 29 June 2009, in accordance with Walton J's amended Directions, a bundle of unidentified documents was filed by the appellant, which documents had the Chief Industrial Magistrate's Court heading crossed out and the words, 'Industrial Relations Commission' handwritten on them. There were no submissions from the appellant either as to leave to appeal or as to the appeal. The bundle of unidentified documents was returned to the Registry for identification. 14 On 10 July 2009 (some 10 days later), the appellant requested (by facsimile transmission) a further 21 days to prepare all its documentation and submissions. No extension was granted and the appellant was informed the Full Bench would convene on 16 July 2009 (when the appeal was set down for hearing) and would consider any application for an adjournment on that date. 15 The respondent on 14 July 2009, filed submissions noting: 1. The Respondent has not been served with the Appellant's Appeal Books. 2. The Respondent has been served with: 1) Statement of Mark Magar dated 29 June 2009 and filed 29 June 2009. 2) Statement of Eddie Sidhom dated 26 June 2009 and filed 29 June 2009. 3. The Respondent has not been served with the Appellant's Submissions. 4. The Respondent relies on the facts and findings in the Court below. 5. In the absence of Appeal Books and the Submissions of the Appellant, the Respondent is unable to address submissions in reply 16 When the leave to appeal and appeal application was called on for hearing before the Full Bench on 16 July 2009, Mr Magar announced his appearance for the appellant. Mr Roberts, counsel for the respondent, objected to the standing of Mr Magar. He challenged Mr Magar's authority to appear for the appellant, submitting he was not a Director of the corporation, nor did he present any authorisation from the company to appear on its behalf. Mr Roberts further submitted that despite the orders of the Chief Industrial Magistrate and the decision of Marks J refusing the stay, no monies had been paid by the appellant to the respondent. Further, Mr Roberts contended the respondent was incurring continual costs, had consistently been represented by counsel on the appellant's appeal application and the appellant had persistently failed to do any act or thing to advance the appeal. The respondent made application for the appeal to be permanently stayed or dismissed. 17 Mr Magar, as to his appearance on behalf of the corporation, contended there had been no objections to the Directions hearing before Walton J, and he requested an adjournment and an extension of time. When asked by the Full Bench as to why an adjournment should be granted he said: The grounds are that I have made a mistake. I was supposed to have a solicitor to represent us but we decided to do it ourselves and I wasn't aware of the complication of appeal books and all of that. What I have done - I'm trying to put it all together. At the moment I have got some help. The reason why we are in this position is because of the previous solicitor. We were put in a position - and there was no appearance. 18 Mr Magar, when asked by the Full Bench as to the failure to comply with the order of the Chief Industrial Magistrate, answered: This is where I go back and say about the lack of communication and the issue with the previous solicitor. One of the major problems I had was accessing the copy of the file from my previous solicitor. I have made mistakes where I wasn't sure how to obtain the files when I have been going to the Downing Centre. That's where I went. Originally I requested for a copy and it was brought here and I only became aware of that recently. 19 As to the Full Bench's consideration of a stay on the appeal until the orders of the Chief Industrial Magistrate were complied with, the respondent opposed this alternative and submitted his client, a part-time employee, had found the litigation stressful, expensive and requested the litigation be brought to an end.

20 The Full Bench has power to grant the adjournment sought if justice requires that outcome (see s 162 of the Act). As the Court of Appeal in City of Sydney Council v Satara [2007] NSWCA 148 observed at [31]: A case which has been specially fixed for hearing at a date some months in the future should proceed to hearing unless to refuse an adjournment would prejudice a party to the point of denying justice: Watson v Watson (1968) 70 SR (NSW) 203 at 206 per Asprey JA; at 210-211 per Holmes JA. 21 The overall aim is the attainment of justice (State of Queensland & Anor v J L Holdings Pty Ltd (1997) 189 CLR 146). The Court must do what justice requires as between the parties to the appeal. The Full Bench must, in considering the appellant's adjournment application, determine whether the respondent to the appeal would be denied justice if the adjournment was granted. Alternatively, the Full Bench must determine whether to refuse the adjournment would prejudice the appellant to the point of denying it justice. 22 We have considered all the matters placed before us including, in the interests of justice, the various statements made by Mr Magar, even though he did not have a proper authority to act for the appellant. The appellant has not prosecuted this appeal satisfactorily or at all. The appellant's explanation that it has been badly served by its solicitors is an unacceptable explanation. The appellant's solicitors had filed a Notice of Ceasing to Act in the Court on 18 February 2009. The appellant has had five full months to prepare its appeal case. 23 The appellant, having chosen to be self-represented, failed to attend the Directions hearing before the President and was advised by the Court of those Directions for the preparation of the appeal. It then failed, over a period of two months, to comply with those orders and in consideration of its difficulty in complying with the President's orders, the Court amended the Directions and allowed the appellant a further week to file its appeal books and submissions. There was still no compliance with those directions. When given the extension of time, the appellant simply filed a bundle of documents which documents were identified by the respondent's counsel as documents which were 'identical to the statement(s) filed, and were considered by the CIM.' (the Chief Industrial Magistrate stated in his Decision he gave consideration to that material). We reject the submissions of the appellant, a legally registered corporation, that its failure to comply could be held to be a 'mistake' by the appellant and/or its failure was due to being let down by its legal representation. The appellant corporation, for the last five months, has chosen to be self-represented. That decision carries with it obligations. 24 Further, before the Full Bench, the appellant conceded it still had not complied with the Orders of the Chief Industrial Magistrate. No monies have been paid to the respondent since December 2008 and this circumstance must be considered in the context that the appellant failed in its stay application. 25 There is a public interest in the prompt conduct of litigation. This appeal has not been promptly prosecuted or prosecuted at all. We conclude that the appellant has not prosecuted the proceedings with due diligence (Mealey v Council of the City of Sydney (2004) 132 IR 177). It follows, in our view, that justice requires the adjournment application made by the appellant be refused. 26 There have been no submissions by the appellant on leave to appeal or on appeal save the submission the appellant was let down by its solicitors and/or the appellant made a 'mistake' in not complying with the Directions of the Court. However, this submission, if correct, does not explain the appellant's failure to prosecute the appeal. The appellant was fully aware that its lawyers had ceased to act and of its obligations in relation to the appeal. Nor has the appellant satisfactorily explained why the appellant failed to enter any appearance before the Chief Industrial Magistrate. 27 We are persuaded that the dictates of justice require that leave should not be granted (Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380). In this context, and given we have effectively no submissions on the sole ground of appeal, that is, the conduct of the matter before the Chief Industrial Magistrate, heard ex parte, was a breach of natural justice or affected by an absence of procedural fairness in the proceedings, we are further of the view the appeal should be dismissed.

28 Accordingly, we make the following orders: 1. If leave to appeal is required, leave to appeal is refused and the appeal is dismissed. If leave is not required, the appeal is dismissed.

2. The appellant shall pay the respondent's costs on appeal as agreed or as assessed.

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