Citation : SALDANHA v FUJITSU AUSTRALIA PTY LTD [2008] WAIRC 01732

Industrial Appeal Court - No power to extend time in which to appeal

Industrial Relations Act 1979 (WA)

Matkevich v New South Wales Technical & Further Education Commission (1995) 36 NSWLR 718

Patterson and James v Public Service Board of NSW (1984) 1 NSWLR 237

Re Carmody; Ex parte Glennan [2000] HCA 37; (2000) 173 ALR 145

Solomon v Psychologists Board of Western Australia [2001] WASCA 226

Woods v Bate (1989) 7 NSWLR 560

1 WHEELER JA: This matter comes before the Industrial Appeal Court based on the following events:

• 10 March 2008: Ms Saldanha filed a notice of application, pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA) (the IR Act) for alleged unpaid benefits pursuant to a contract of employment with the respondent.
• 26 August 2008: Commissioner Wood, having consulted the parties, requested the President to refer a question of law (concerning the commission's jurisdiction) to the Full Bench. The President referred the matter on the same day.
• 17 December 2008: the Full Bench delivered reasons answering the questions of law referred.
• 23 December 2008: an order that the questions be answered as indicated was sealed and deposited in the office of the Registrar (s 36 IR Act).
• 12 January 2009 to 17 February 2009: between these dates, Commissioner Wood notified the parties that, following the answers given to the two questions of law, he was considering issuing an order dismissing the application for want of jurisdiction, and the parties made submissions to him about that matter.
• 17 February 2009: Commissioner Wood dismissed Ms Saldanha's application for want of jurisdiction.
• 5 March 2009: Ms Saldanha filed a notice of appeal from the decision of the Full Bench answering the questions of law referred.

2 By s 90(2) of the IR Act, it is provided that an appeal from a decision of the Full Bench to the Industrial Appeal Court "shall be instituted within 21 days from the date of the decision against which the appeal is brought". Having regard to s 61(1)(b), (e) and (h) of the Interpretation Act 1984 (WA), it appears to me that the last day on which the notice of appeal could have been filed was 19 January 2009 (that is, 21 days from 23 December excluding that day, the Christmas and New Year public holidays and the weekend preceding the 19th).

3 Ms Saldanha applies for an extension of time within which to appeal on the basis that she understood that she could only lodge an appeal after the dismissal of her application by the Industrial Relations Commission for want of jurisdiction. That is, she mistakenly believed that she could not appeal until after 17 February 2009. Her affidavit in support of extension of time also deposes that she sought information from the Western Australian Industrial Relations Commission registry about appealing the decision of Commissioner Wood dismissing her application, and was given certain advice. It is not necessary to consider whether the material to which she deposes is an adequate explanation for the delay, unless the court has power to extend time.

4 There is a preliminary issue in this case, therefore, as to whether the appeal is competent.

5 It has often been noted that the right of appeal is a creature of statute. The rights that an appellant has are therefore those conferred by the statute. Further, the Industrial Appeal Court is itself a statutory court having a limited jurisdiction. There is in the IR Act no express power to extend the time within which an appellant may appeal to the Industrial Appeal Court. The relatively simple question which arises therefore is whether any power to extend time may be implied from the IR Act. In my view, it cannot.

6 An analogous case is that of Patterson and James v Public Service Board of NSW (1984) 1 NSWLR 237, a decision of the Court of Appeal of New South Wales. In that case, the Government & Related Employees Appeal Tribunal Act 1980 (NSW) (the GREAT Act) provided that an appeal on a question of law from the tribunal to the Court of Appeal "shall be made within 21 days after the tribunal's decision". A significant difference between the legislation in that case, and in this, is that in the GREAT Act the section conferring the right of appeal went on to add that an appeal "shall be made in accordance with the rules of the Supreme Court", and those rules did provide for the possibility of an extension of time, although they also provided, inconsistently with the GREAT Act, that an appeal must be instituted within 28 days (subject to any extension of time). In the present case, there is not even a reference in the Act to the Supreme Court or Court of Appeal Rules (which do, of course, provide for extensions of time).

7 Applying the principles referred to above, that is, that an appeal is a creature of statute, the Court of Appeal was unanimously of the view that no jurisdiction existed to extend the time within which to bring an appeal. That decision has been followed in New South Wales in Woods v Bate (1989) 7 NSWLR 560 and Matkevich v New South Wales Technical & Further Education Commission (1995) 36 NSWLR 718, has been referred to, apparently with approval, by Kirby J in Re Carmody; Ex parte Glennan [2000] HCA 37; (2000) 173 ALR 145 at [20] and followed in Western Australia by White J in Solomon v Psychologists Board of Western Australia [2001] WASCA 226.

8 In Patterson, Moffitt P considered the subject matter of the Act to be of significance. It dealt broadly with aspects of Public Service organisation, including questions of circumstances in which an officer of the Public Service might be dismissed. His Honour considered (at 240) that policy considerations suggested that there was legislative policy of ensuring certainty in relation to decisions of that kind, once the time limit for appeal had passed. In my view, similar policy considerations may be discerned in the IR Act. The "Objects" section, s 6, places emphasis on negotiation and agreement as a means of settling disputes. Section 90, which invests the court with jurisdiction to hear appeals from the Full Bench, confers jurisdiction only in the very limited circumstances of excess of jurisdiction in that the matter was not an industrial matter; error of law in erroneously construing any Act, regulation, award, industrial agreement or order; and want of procedural fairness. Taken together, these provisions indicate a legislative policy that negotiation rather than litigation is preferable, and that resort to the Industrial Appeal Court is to be permitted only in strictly limited circumstances. It would be consistent this court, after which this court would not have power to extend time. The reasons in Patterson, which, in my view, this court should apply, lead to a conclusion that the appeal is incompetent.

9 Further, there is in s 113, which confers regulation making power on the court, no indication that the court may make regulations providing for the extension of time for the doing of any act. Finally, in McCorry v Como Investments Pty Ltd (1989) 69 WAIG 1000, a question arose as to whether an appeal pursuant to s 90, alleged to have been made out of time, was competent. The case turned on the question of what was to be regarded as the "date of the decision" in that case, and the appeal was held to have been brought within time. However, no member of the Industrial Appeal Court questioned the assumption made in that case, that an appeal not instituted within 21 days would be incompetent.

10 Ms Saldanha, in her submissions, has referred to reg 26 of the Industrial Relations (Western Australian) Industrial Appeal Court Regulations 1980, which permits the court to waive procedural

requirements in certain circumstances. However, in the view that I take of s 90 of the IR Act, the requirement to institute the appeal within time is not a procedural requirement, but a precondition to the competence of the appeal. Ms Saldanha also referred in her written submissions to reg 2A, which deals with the time in which appeals may be instituted, pursuant to s 96K of the Act, against a decision of an Industrial Magistrates Court. This, however, as Ms Saldanha accepts, is not a decision of an Industrial Magistrates Court and neither s 96K nor the regulation in question is applicable. Similarly, the Crown Suits Act 1947 (WA) and the Limitation Act 1935 (WA), to which Ms Saldanha also refers, are irrelevant, since the time limit in the present instance is provided by the IR Act itself.

11 I would therefore strike out this appeal as incompetent.