DE SIMONE CONSULTING PTY LTD v ISON

JUDGMENT:

• 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Wednesday, 31 May 2000 Matter No IRC 2235 of 2000 DE SIMONE CONSULTING PTY LIMITED v JOHN ISON Application to extend time to appeal against a decision of a Local Court constituted by an industrial magistrate, Ms P Staunton, given on 2 March 2000 in Matter No CIM 947 of 1998. JUDGMENT (extempore) 1 This is an application by De Simone Consulting Pty Limited under s 189 of the Industrial Relations Act 1996 to extend time to appeal. The appeal is sought to be brought against an order made on 2 March 2000 by a Local Court, constituted by Ms P Staunton sitting as an industrial magistrate, for the payment to John Ison of proportionate long service leave in the amount of $9,006.65 due under s 4(2) of the Long Service Leave Act 1955. Her Worship assessed costs in the sum of $8,500 in favour of Mr Ison and ordered the payment of interest. The appeal challenges the whole of the orders so made. 2 The present application to extend time was filed on 22 May 2000 with a supporting affidavit from the applicant's solicitor and together with the proposed application for leave to appeal and appeal. Given the time for filing an appeal is 21 days under s 189 of the Industrial Relations Act , the appeal has been brought just on 2 months late. However, it is necessary to point out that her Worship actually gave judgment in this matter on 7 October 1999 as to the substantive issue concerning the long service leave payment and it was the remaining issues as to costs and interest which were dealt with on 2 March 2000. In that sense, then, the appeal against the long service leave issue was brought nearly 7 months late. However, formal orders were made on all matters on 2 March 2000, albeit orders on the long service leave payment arguably were made on 7 October 1999; for present purposes I am prepared to take the operative date as being 2 March 2000. Of course, the fact that judgment or reasons for judgment were delivered on 7 October 1999 will be a relevant discretionary matter in considering the question of an extension of time. 3 In the application to extend time the reasons why the appeal was not filed within time were stated in the following way : 1. The orders of Industrial Magistrate Staunton were given in transcript on 2 March 2000.

The solicitor for the Applicant did not attend any of the hearings before Industrial Magistrate Staunton and, in particular, did not attend the hearing on 2 March 2000.

The counsel preparing the appeal papers did not attend any of the hearings before Industrial Magistrate Staunton and, in particular, did not attend the hearing on 2 March 2000.

The Applicant did not make notes of the hearings before Industrial Magistrate Staunton and, in particular, did not make notes of the hearing on 2 March 2000.

The solicitor for the Applicant requested on 9 March 2000 copies of the transcript of all hearings before Industrial Magistrate Staunton.

The Applicant obtained on 29 March 2000 a copy of the transcript of the first hearing on 22 July 1999.

The solicitor for the Applicant enquired of the Industrial Registry on 10 April 2000 as to a copy of the transcript of the hearing on 2 March 2000.

The Applicant obtained on 3 May 2000 a copy of the transcript of the hearing on 2 March 2000.

The solicitor for the Applicant and the counsel preparing the appeal papers were not in positions to settle the appeal papers in the absence of the transcripts of the hearings. 4 The grounds for an extension of time were stated in this way: 1. The Applicant was not able to obtain a copy of the transcript of the hearing on 22 July 1999 until 29 March 2000.

2. The Applicant was not able to obtain a copy of the transcript of the hearing on 2 March 2000 until 3 May 2000.

3. The solicitor for the Applicant advised the solicitors for the Respondent on 9 March 2000 of the intention of the Applicant to appeal against the orders made on 2 March 2000.

4. The solicitor for the Applicant advised the solicitors for the Respondent on 29 March 2000 of the delay in obtaining the final transcript.

5. The Respondent has been aware of the intention of the Applicant to appeal since 9 March 2000. 5 Essentially, it seems to me, the delay in filing process arose from alleged difficulties in obtaining in a timely way the transcript of the relevant proceedings before her Worship, although it is to be noted that no complaint was made about timely access to the reasons for judgment delivered by her Worship on 7 October 1999. 6 In his affidavit sworn on 19 May 2000 in support of the application, Peter Simon Lustig said : 2. I was the solicitor for the applicant in the proceedings below. In respect of those proceedings, I briefed Elizabeth Collins ("Collins") of counsel. I am informed by Collins and by my client's managing director, Giuseppe De Simone ("De Simone") and verily believe that this matter proceeded for hearing before an Industrial Magistrate, Staunton, on Thursday 22 July 1999. Both Collins and De Simone were present at that time. I was not present myself. The decision was reserved.

3. I am informed by Collins and De Simone and verily believe that the reasons for judgment were handed down by Industrial Magistrate Staunton on 7 October 1999. I am informed by Collins and verily believe that both she and her colleague, appearing for Ison, were unable to attend and as such, it was arranged that the judgment would simply be collected with the issues of costs being reserved. 7 Mr Lustig then detailed in his affidavit communications he had with the Registry of this Court between 9 March 2000 and 29 March 2000 concerning efforts to obtain the transcript which, apparently, he obtained by early April 2000. The notice of appeal was then prepared and filed on 22 May 2000. 8 In his submissions in support of leave, Mr M S White of counsel relied on this chronology as reasonably explaining the delay. I do not agree. It raises as many questions as it answers. The fact is that the delay of 2 months in preparing the appeal notice, let alone the period of 7 months referred to, cannot, in my view, be properly attributed to the transcript problem. The obligation of legal representatives is to take notes of proceedings, even absent transcript, and, in any event, the written reasons for judgment of her Worship on 7 October 1999 were available. 9 This requires reference to the proposed notice of appeal. A review of it shows, in my view, that the questions raised by the appeal, the reasons for leave to appeal and the grounds of appeal could all properly have been prepared without the transcript. I do not criticise the generality of the material contained in the notice of appeal, suffice it to say that it is in general terms but at least raises the required subject matters to be challenged with sufficient particularity. In any case, the notice of appeal could have been amended. 10 The principles which have been applied in considering an application to extend time to appeal were addressed recently by me in Van Rooy Machinery Pty Ltd v WorkCover Authority of New South Wales (Inspector Wolf) [2000] NSWIRComm 48 published on 21 March 2000. The relevant principles were set out by reference to the authorities at paras 16 and 17 therein. I find it sufficient for present purposes, however, to refer to the earlier decision of a Full Bench in Skelly v Prouds Jewellers Pty Ltd [1994] 53 IR 3, a decision referred to by me in Van Rooy Machinery . In Skelly, the Full Bench observed (at p 6): The Commission's Rules require an appeal to be filed within 28 days of a decision. (I interpolate here that under the present Rules it is now 21 days) There is a public interest in the prompt institution and prosecution of litigation before the Commission. Indeed, the Act is designed with this as a feature. It follows that a successful litigant before the Commission is generally entitled to proceed on the basis that a decision in its favour will stand, in the absence of an appeal being filed within the time prescribed. There is a discretion in the Commission to extent the time for filing an appeal. Such a discretion will not however be lightly or automatically exercised, particularly if the application is made after the time for appeal has expired. The fact that there will be no prejudice to a respondent party by an extension of time being granted is one factor which the Commission will take into account, but will not be solely determinative of the matter. In this context the cost and inconvenience of litigation not brought within the limitation period prescribed is a matter to which regard may properly be had when an application for extension of time is made. The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to all the circumstances before it. 11 Having in mind that passage, I made the following observations in Van Rooy Machinery (at para 33) : Essentially, it seems, to me in deciding whether or not to grant an application to extend time to appeal comes down to the proposition of doing justice between the parties and ensuring the proper administration of justice.

I affirm that view. 12 Mr White referred to the other matters raised by the appeal as justifying the extension of time to deal with them. Those other matters are conveniently summarised in the questions raised by the appeal as set out in the notice and are in the following terms: 1. The construction of section 4(11)(c) and section 12 of the Long Service Leave Act 1955 (NSW).

2. The correctness or otherwise of the conclusion by the Industrial Magistrate that part of a purchase was transmitted for the purposes of section 4(11)(c) upon the sale and purchase of fixed assets, stock and a trademark of the business.

3. The correctness or otherwise of the approach of the Industrial Magistrate in calculating the payment due to the worker under section 12 of the Long Service Leave Act 1955.

4. The correctness or otherwise of the refusal of the Industrial Magistrate to order that the payment due to the worker under section 12 of the Long Service Leave Act 1955 was subject to PAYE deductions in accordance with the laws of the Commonwealth of Australia.

5. The correctness or otherwise of the decision of the Industrial Magistrate to order interest based on a principal ( sic ) of the gross amount of long service leave payable to the worker rather than the nett amount payable to him after deduction of PAYE taxation which would have been the amount payable to the worker had the payment been made in the ordinary course of business.

6. The correctness or otherwise of the approach of the Industrial Magistrate to make an order for costs. 13 I point out too, of course, that the appeal which is sought to be brought is not an appeal as of right but requires leave to appeal under s 188 of the Industrial Relations Act . It was no doubt for that reason that the applicant here included in the notice of appeal, quite properly, reasons why leave to appeal should be granted. Those reasons essentially related to the public interest consideration in respect of each of the grounds of appeal and questions raised by the appeal which I have referred to; I do not see it as necessary to deal with those aspects. Suffice it to say, however, that the allegation of public interest being attracted needs to be made out, not as a mere assertion but as a proper basis according to the circumstances of the case. 14 Mr D H Patch of counsel, in opposing the application to extend time, referred to each of the grounds of appeal, resulting in the position on his submission that the prospects of the appeal succeeding were small. I inferred from that that the question of leave to appeal would be opposed. When one reviews the notice of appeal as to the questions raised, the reasons for leave to appeal and the grounds of appeal, my view is that the submissions made by Mr Patch were soundly based and make out a case against the grant of an extension of time to appeal. 15 I am far from satisfied, I have to say, that the issues raised in the notice of appeal would be likely to be answered in favour of the applicant. Certainly, I am far from satisfied, in any event, that the public interest would be attracted sufficient to justify the grant of leave to appeal; the applicant in that respect would be highly unlikely, in my view, to succeed. 16 I may illustrate the point in this way. The construction of a statute is always a matter which raises a legal question, but, I have to say, the construction of the Long Service Leave Act in terms of the issue of the transmission of a business has been the subject over the years of many authoritative pronouncements in terms of meaning and approach. It seems to me that the issue raised in the present matter is largely an issue of fact, that is, applying the facts as found by her Worship to the statutory provision and, very much in the particular circumstances of this case, drawing a conclusion therefrom. It is difficult, therefore, to see public interest considerations. 17 A second illustration may be made by reference to the approach adopted by her Worship in calculating the payment of long service leave due to the respondent, having in mind the deduction which was made for an earlier payment to him. It appears from what counsel informed me today that that indeed was not an assessment made by her Worship but rather she adopted the figures as tendered by the then complainant (the present respondent) without any challenge thereto by the defendant (the present applicant). One might reasonably think that such an issue, if it raised matters of public interest, would have been articulated at some length and in detail in the proceedings at first instance. That it was not, I think, acts against the exercise of discretion to extend time to appeal. 18 Another and third illustration raised as supporting an extension of time was the question concerning the failure by her Worship to order the payment due to the respondent to exclude PAYE taxation deductions. I see nothing unusual in her Worship's approach in this respect, and, again, it seems this matter was not canvassed in the proceedings at first instance. In any event, the order has been made for the payment of an amount for long service leave and if there be taxation implications then, of course, in the hands of the present respondent as the recipient thereof appropriate disclosures may be made. It does not seem to me to raise, as the notice of appeal would suggest, the important question of compliance with the laws of the Commonwealth. I do not see this matter on its particular facts as in any way being determinative of such questions. 19 I do not deal with all of the grounds relied on in the notice of appeal. Mr Patch has referred to each of them in detail and, as I have said, I accept his submissions as not supporting the likelihood of the appeal being upheld. 20 Finally, I should mention one aspect which has loomed large in my mind in considering this present application and that is the essentially unexplained delay in filing an appeal between 7 October 1999 when her Worship gave judgment and 2 March 2000 when the questions of costs and interest were determined, a period of nearly 5 months. I do not think one can merely refer, as the applicant did, to the 2 March 2000 date and say that the appeal was filed but some 2 months late. There is nothing in the material before me which would satisfactorily explain that delay. Even if the orders were actually made on 2 March 2000 and not 7 October 1999, as a matter of discretion it seems to me that the conduct of the applicant during that period, having in mind that her Worship determined the substantive issue of liability on 7 October 1999, should have been explained; that it was not is, in my view, against the exercise of discretion to permit an appeal to be filed even 2 months out of time. 21 On balance, and having in mind the appropriate principles to apply, I am not satisfied that the applicant has satisfactorily explained the reasons for delay, nor in relation to the other matters has the applicant made out a case sufficient to justify the grant of an extension of time to appeal. For the reasons which I have put, the application to extend time to appeal is refused and I so order. The notice of appeal is therefore incompetent.

(Submissions were heard on costs) 22 In my view, costs should follow the event in this application and I propose to make a costs order on a party-party basis. In that respect, the respondent has quantified costs in the amount of $1,200, which I must say is a fairly modest amount and I think is not unreasonable. I would be concerned in considering costs to make an order which would not be simply productive of additional costs as I think one should always in a matter of this nature endeavour to contain costs. Accordingly, I order that the applicant pay the respondent's costs of the application which I assess in the amount of $1,000.

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