Davies v Kyogle Council

Industrial Relations Commission Rules LEGISLATION CITED: Industrial Relations Act 1996 Interpretation Act 1987 Workers Compensation Act 1987

Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Alan Thomas David & Ors (2006) 154 IR 297 Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 Direct Home Loan Corporation Pty Limited v Wiltshire (No 2) (2004) I137 IR 166 CASES CITED: Elka Simjanovska and Roads and Traffic Authority of New South Wales [2008] NSWIRComm 66 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Davies v Kyogle Council [2008] NSWIRComm 68 Davies v Kyogle Council [2008] NSWIRComm 70 National Australia Bank Ltd v Cassino (2002) 137 IR 1 Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 Strathfield Group Ltd v Hall (2002) 121 IR 158

HEARING DATES: 28 April 2008 EXTEMPORE JUDGMENT DATE: 28 April 2008

APPELLANT: Mr K Davies, unrepresented

LEGAL REPRESENTATIVES: RESPONDENT: Mr A Britt of counsel

Local Government and Shires Association of New South Wales

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: WALTON J, ACTING PRESIDENT SCHMIDT J BACKMAN J

APPLICATION BY KENNETH HENRY DAVIES FOR LEAVE TO APPEAL AND APPEAL AGAINST A INTERLOCUTORY HEARING OF JUSTICE BOLAND GIVEN ON 26.3.2008 IN MATTER NO. IRC 2238 OF 2007

DECISION OF THE COMMISSION EX-TEMPORE [2008] NSWIRComm 90

1 This is an application for leave to appeal and appeal against an interlocutory decision given by the President, Justice Boland, on 26 March 2008, during the course of a hearing that day. The proceedings before the President concerned an application brought by the appellant, Mr Davies, under s 242 of the Workers Compensation Act 1987, seeking reinstatement as an injured employee, in his former employment with the respondent, the Kyogle Council. The matter is listed for hearing in May. The decision the subject of these appeal proceedings concerned the question of whether or not certain documents had been properly served on Mr Davies. 2 Mr Davies' complaint was that a notice of motion and certain affidavits had not been served in accordance with the requirements of Rule 104 of the Commission's Rules. There was no issue between the parties that service had been effected by registered post, although Mr Davies had not collected that mail from the post office. A copy of the documents in question had also been emailed to Mr Davies. Mr Davies, however, complained that the emailed documents were incomplete. 3 The respondent's case was that service effected by registered post complied with the requirement of Rule 104, which provided that: 104 Service upon individuals Service of process upon any natural person must be effected: (a) by leaving any document to be served with the person, or (b) if any document to be served is not accepted, by putting the document down in the presence of the person to be served and indicating its nature, or (c) by leaving any document with any other person apparently above the age of 14 years at the residence or usual place of business of the person, or (d) by posting any document to the person or leaving it at the address for service filed by the person, or (e) where any person has not filed an address for service, by posting any document to the person at the residence or usual place of business of that person. 4 There was no issue that the documents had been sent by post, as the Rule required. The respondent argued that it was not responsible for Mr Davies' deliberate decision not to collect that registered post, having unquestionably received notice that it was available to be collected at the post office. It followed that it had been established that service had been effected in accordance with the Rules. In any event, the documents had also been emailed to Mr Davies. It was explained that the complaint as to the documents missing from the emailed version, related to summonses for production attached to the hard copy version of the documents served. They were summonses for production, which Mr Davies had himself issued. It followed that despite Mr Davies' failure to collect his post, he was on actual notice of the material served. 5 For his part, Mr Davies complained that it had not been convenient for him to collect the registered mail and that it should have been sent to him by post, as the Rule required. 6 After hearing the parties, the President concluded that service by registered post fell within the requirements of Rule 104. His Honour, nevertheless, addressed with Mr Davies, the timetable and directions given for the hearing of the matter, proposing an adjustment, which sought to address the practical difficulty which the alleged failure to serve the documents in question in accordance with the Rules, had created for Mr Davies. Mr Davies and the respondent both agreed with what his Honour proposed. The proceedings were adjourned accordingly. 7 Mr Davies, nevertheless, now complains that in concluding that the service which had been effected by registered mail, fell within the requirements of Rule 104, his Honour had erred; that he had failed to give reasons for his decision, which was contrary to the evidence and that it was also inconsistent with the provisions of the Interpretation Act 1987. Mr Davies also argued that the Rules did not permit service by email. 8 Mr Davies also sought a stay of the President's decision, which was refused by Staff J on 2 April 2008 (see Davies v Kyogle Council [2008] NSWIRComm 68). 9 Section 188(2) of the Industrial Relations Act 1996 ('the Act') requires that:

The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.

10 We initially called on Mr Davies to address us on the question of leave. This approach was consistent with the well established practice of the Commission, in relation to interlocutory appeals such as this. (See, for example, Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Alan Thomas David & Ors (2006) 154 IR 297; National Australia Bank Ltd v Cassino (2002) 137 IR 1; Direct Home Loan Corporation Pty Limited v Wiltshire (No 2) (2004) 137 IR 166 and Elka Simjanovska and Roads and Traffic Authority of New South Wales [2008] NSWIRComm 66.) 11 Mr Davies argued that this was not an interlocutory appeal, so that those principles did not apply. Mr Davies was incorrect in that submission. Clearly, Boland J's decision did not finally dispose of the application Mr Davies has made to the Commission, nor was this an appeal from such a decision. His Honour's decision concerned an interlocutory procedural question going to service of documents. 12 It is also well settled that leave to appeal will not be lightly granted. An appeal bench is ultimately concerned with correction of error. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265; De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at 482; Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 and Strathfield Group Ltd v Hall (2002) 121 IR 158 at [45].) Further, 'some issue of real significance in the interests of justice will need to be identified for such an application to succeed.' (See Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 at [4].) 13 In this case, none of these tests were satisfied. There was never any suggestion before Boland J that Mr Davies did not have the documents in question, save for an annexure, he had himself produced. Mr Davies' complaints that service by registered post, did not satisfy the requirements of the Rule, was plainly a complaint of a most technical nature, in the circumstances before his Honour. Such complaints, whether made by a lawyer, or by an unrepresented litigant, are not encouraged by this Commission, particularly in interlocutory appeals. In this case, the documents in question had also been provided by email, other than annexures which Mr Davies had himself created and served on the respondent. On any view, Mr Davies had been provided with the documents in question. Unsurprisingly then, Mr Davies was unable to demonstrate that he had suffered any real disadvantage or prejudice, from the way in which service was effected. His complaints on appeal concerned the time, costs and inconvenience involved in spending an hour as a bankrupt, with no car or assets, in collecting registered mail. This complaint, of course, had to be considered in circumstances where Mr Davies had the documents, albeit, by email. Furthermore, after the proceedings before Boland J on 26 March, Mr Davies, in fact, collected the registered mail in question. 14 The President, nevertheless, dealt with the practical difficulties which Mr Davies wished to raise, given that he was an unrepresented litigant. What his Honour then proposed, in order to accommodate Mr Davies' position, was accepted both by Mr Davies and by the respondent. 15 The approach which the Commission adopts to the question of leave, pays attention to the fact that both single members of the Commission and appeal benches are obliged, in exercising their functions, to observe the requirements of ss 146 and 163 of the Act, which respectively provide:

146 General functions of Commission (1) ... (2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to: (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy.

This subsection does not apply to proceedings before the Commission in Court Session that are criminal proceedings or that it determines are not appropriate.

Section 163 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) ...

16 These statutory exhortations help explain why interlocutory appeals such as this are discouraged by the Commission and why, when they are brought, they are often determined on the basis of leave. 17 The appeal in this case raised no issue of any practical significance, even for Mr Davies, let alone any issue going to the public interest. To the contrary, it was apparent that Mr Davies had suffered no real detriment from the way in which service of the documents in question had been effected, even given his failure to collect his registered mail. Furthermore, even if it were correct that his Honour had erred in the conclusions which he reached as to the proper construction of the Rules, which has not been determined, it ought not to be overlooked that in accordance with the provisions of Rule 88, his Honour could have reached the same result, by waiving strict compliance with the procedural requirements of Rule 104. That approach would have been entirely appropriate in the circumstances before his Honour. Not only did the approach taken by the President plainly address what justice between the parties called for in these circumstances, it was one which the parties both finally accepted. 18 We also observe that there was little utility in granting leave to appeal in this case. Mr Davies had the documents in question. As a result of the further directions given by Boland J on 26 March, his Honour considered the parties' respective cases, as to various issues then lying between them. Boland J gave a decision as to these matters on 8 April 2008 (see Davies v Kyogle Council [2008] NSWIRComm 70). Mr Davies has not appealed that decision. His substantive application is now listed for hearing before Boland J next week. The complaints advanced in this appeal, related to matters relevantly determined in the decision of 8 April. It followed that in a practical sense, in the proceedings below, nothing turns on the matters, the subject of this appeal. This consideration also disposes of the issues raised by Mr Davies in relation to the affidavits of Mr Smith. 19 We are well satisfied that in all of these circumstances, the interests of justice demand that leave to appeal be refused in this case. 20 We finally observe that the respondent also raised an objection that the appeal had wrongly been taken to the Industrial Court, rather than to a Full Bench of the Industrial Relations Commission. After hearing the parties, we granted Mr Davies leave to amend the appeal process in accordance with s 170 of the Act. A Full Bench of the Commission was then constituted to hear the appeal. These developments explain why Staff J dealt with the stay application, sitting as the Industrial Court and this appeal has been dealt with by a Full Bench of the Commission. Orders

21 For the reasons given, leave to appeal is refused. We order accordingly.

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