Dewcape Pty Ltd v WorkCover Authority of New South Wales

Industrial Relations Commission (NSW)|2007-02-22|Before: Wright J, Backman J

CITATION: Dewcape Pty Ltd v WorkCover Authority of New South Wales (Insp Jones) [2007] NSWIRComm 212

APPELLANTS: Dewcape Pty Ltd PARTIES: Andrew Ishak

RESPONDENT: WorkCover Authority of New South Wales (Inspector Jones)

Coroners Act 1980 ss 14, 14B LEGISLATION CITED: Criminal Appeal Act 1912 ss 5D, 5F Industrial Relations Act 1996 ss 187, 188, 196 Occupational Health and Safety Act 2000 ss 8, 26

Edwards Madigan Torzillo Briggs Pty Ltd v Mansell (2004) 139 IR 362 Gallo v Dawson (1990) 64 ALJR 458 Inspector Jones v Challita and Anor [2006] NSWIRComm 207 Inspector Jones v Dewcape Pty Limited & anor [2006] NSWIRComm 361 CASES CITED: John Holland Group Pty Ltd v Industrial Relations Court of NSW and Another [2006] NSWCA 93 Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (Inspector Childs) (2006) 158 IR 281 Morrison v Joy Manufacturing Co Pty Limited (2004) 137 IR 8 Ove Arup Pty Ltd & Ors v Industrial Court of NSW & Anor [2006] NSWCA 28 WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65

APPELLANTS: Mr R Bonnici of counsel Justin Lewis & Co, Lawyers (Mr Justin Lewis) LEGAL REPRESENTATIVES: RESPONDENT: Mr M Cahill of counsel WorkCover Authority of New South Wales (Ms Brooke Benson)

DEWCAPE PTY LTD AND ANOTHER v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR JONES)

Application by Dewcape Pty Ltd and another to extend time to appeal against judgment of Justice Backman given on 10 November 2006 in Matter Nos IRC 7539 and 7540 of 2004

JUDGMENT [2007] NSWIRComm 212 1 On 10 November 2006, Backman J delivered judgment in Inspector Jones v Dewcape Pty Limited & anor [2006] NSWIRComm 361. The proceedings before her Honour concerned an application by motion made by the defendants, Dewcape Pty Limited and Andrew Ishak, in the context of prosecution proceedings brought under the Occupational Health and Safety Act 2000, seeking orders that the proceedings against them be permanently stayed on the basis that they constituted an abuse of process. Orders were also sought, in the alternative, that if a permanent stay was not granted, an interim stay of proceedings be granted pending the final outcome of the coronial inquest into the matter. 2 The issues before her Honour were epitomised by her Honour in the following way: [6] The grounds and reasons set out in the Notice of Motion are numerous and many appear to overlap. During oral submissions, counsel for both defendants, Mr Bonnici informed the Court that there were three bases underlying the application. These were, first, that there is insufficient evidence contained in the brief of evidence upon which the prosecutor can make out the respective cases beyond reasonable doubt. (I should observe at this juncture that the brief of evidence was not tendered on the application although it was said to be relied upon by Mr Cahill , counsel for the prosecutor). A related basis which also emerged during oral submissions was an allegation made by the defendants that the inspector had failed to properly investigate the circumstances which gave rise to the charges. Secondly, it was asserted that the evidence of Mr Challita, the boom pump operator, will show that there is insufficient evidence upon which the prosecutor can proceed against the second defendant and that the available evidence has been improperly investigated. Thirdly, it was asserted that because of delay in the filing of the charges against both defendants, they have been "severely prejudiced".

[7] A further issue raised by the defendants, which appears to bear some connection, at least insofar as the defendants maintain, to the three bases outlined above, concerns their contention that a failure to hold a coronial inquest into Mr Budwee's death also amounts to an abuse of process. The issue of the inquest is also said to have some relevance to the present application because, as I understand the assertion, the prosecutor was waiting for an inquest to be held in order to gather sufficient evidence which he did not otherwise have and which was necessary to launch the prosecutions. When, some two days prior to the expiration of the time within which charges could be filed no inquest had been held, the prosecutor only then made a decision to file the charges. 3 In considering the notice of motion and the material before her by way of affidavit, her Honour observed: [9] Distilling the precise grounds and reasons upon which the defendants allege that the proceedings constitute an abuse of process from these two documents reveals considerable overlap between the grounds said to give rise to an abuse of process. I propose therefore to consider the grounds set out in the Notice of Motion together where there is obvious overlap.

[10] Grounds 1, 2, 5, 6 and 7 in the Notice of Motion appear to deal with the issue of delay. They are set out in full below: 1. A coronial inquest into the fatal accident of Marcel Budwee at 10 Stanley Street, Putney in the State of New South Wales on 8 January 2003 should have been held before any charges were laid against Andrew Ishak and or Dewcape Pty Limited.

The reason for prosecuting the Applicants does not appear to be based on the evidence, per se, or any recommendations, but on the fact that the Respondent realised that the limitation period of two years from the date of the accident had just days to run before it expired.

The police investigation into the matter indicated that as far as the Applicant is concerned there were no criminal charges to be laid.

Without a coronial inquest, which should have been mandatory in this case, and contrary to the recommendations and opinion of the police investigators involved, the Respondent unilaterally and without considered supporting evidence, decided to take out criminal prosecutions against the Applicants.

It was only after a Summons for Production was issued on behalf of the Applicants, that the police statements were supplied. 4 Subsequently in the judgment, her Honour noted that the defendants relied upon the report of a Senior Constable Winter, a police officer involved in the investigation of the death of Mr Budwee, who gave evidence on the notice of motion. In particular, reliance was placed upon the observation in Senior Constable Winter's report that "Police have no interest in Ishsk (sic) at this point of time insofar as criminal proceedings are concerned ...". 5 Her Honour observed (see paras [14] and following) that officers of the New South Wales Police are not empowered to commence proceedings for offences under the 2000 Act and the compilation of evidence by the Police in anticipation of the coronial inquest proceeded upon an entirely different set of considerations to the proceedings under that statute as the emphasis for the preparation of the brief for the inquest is on the cause of death which is not an element of an offence under the statute. Her Honour also observed that the Coroner is not compelled in all cases to hold an inquest (see ss 14 and 14B of the Coroners Act 1980) and that there is nothing in the 2000 Act which requires an inquest be held before proceedings may be commenced under it. 6 In para [18] of the judgment, her Honour set out certain grounds extracted in the defendants' notice of motion and prefaced this extract with the following words: [18] A number of overlapping grounds and reasons relied upon by the defendants in the Notice of Motion appear to deal with the contention that because Mr Challita was "directly responsible" or "most accountable" for the safety of Mr Budwee that there must therefore be a reasonable doubt as to the liability of the defendants, in particular the second defendant, who, it is asserted, was not present at the time of the accident, having left the worksite. ... 7 Her Honour dealt with these matters in the following way: [19] The fact that Mr Challita might be "most accountable" or "directly responsible" for Mr Budwee's safety (which fact may or may not be established at some later time) does not discharge the defendants from their statutory obligations to ensure Mr Budwee's safety, or in the case of an offence alleged under s 20(1), to take reasonable care for Mr Budwee's safety. It is now commonplace that modern construction sites may accommodate a head or principal contractor, and other contractors and sub-contractors. The services of outsourced labour are often utilised at such sites for the performance of tasks. In such circumstances the responsibility to maintain a safe system of work cannot be transferred or delegated by, for example, the principal contractor to a contractor or some other party at the site: see Inspector Stewart v Siemans Dematic Pty Ltd (formerly Mannesman Dematic Colby Pty Ltd) (No. 2) [2003] NSWIRComm 45 at [42]; WorkCover Authority (Inspector Patton) v Fletcher Construction Aust. Ltd (2002) 123 IR 121 at [40] - [42].

[20] In addition, the fact that the second defendant had apparently left the site at the time of the accident does not, without more, absolve him from the obligation to ensure safety under the Act. The Act is concerned with the identification of a failure (to ensure safety) which results in a risk to the safety of persons at work or at the workplace. The occurrence of an injury or accident at the workplace is of evidentiary value only and is not one of the elements of the offences charged against the defendants and which must be proved by the prosecutor beyond reasonable doubt: Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (Insp Ch'ng) (1999) 90 IR 432 at 452. 8 Her Honour then, at para [23] and following, noted that the remaining grounds relied upon by the defendants appeared to deal with the claim that the brief of evidence contained insufficient material upon which the prosecutor relied in order to make out the case or cases for the defendants beyond reasonable doubt. In dealing with those matters, her Honour found: [24] The anticipated expert evidence, or anticipated evidence as to the circumstances of Mr Budwee's death, are, as earlier indicated, not relevant to those matters which the prosecutor is required to prove beyond reasonable doubt, although this does not mean the circumstances of an injury or accident are without any evidentiary value. In Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 the Full Bench identified the elements of an offence under s 16(1) of the Occupational Health and Safety Act 1983, the predecessor section, in similar terms, to s 8(2) of the 2000 Act: 1. The defendant was an employer; 2. They were persons not employees exposed to risks to their health or safety; 3. The risk arose from the conduct of the defendant's undertaking; 4. The exposure to risk was at the defendant's place of work. [25] All of the matters relied upon by the defendants in order to substantiate their claim that the prosecutions were commenced with insufficient material to prove the offences therefore focus impermissibly on the accident instead of the risk to safety: South Sydney Rugby League Ltd v WorkCover Authority of NSW (Inspector Bestre) (2005) 142 IR 373 at [41] - [42]; Inspector Wolf v Port Kembla Copper Pty Limited [2006] NSWIRComm 341 at [21]. 9 Her Honour thus concluded: [26] It follows that none of the grounds and reasons set out in the defendants' Notice of Motion can successfully provide any basis upon which the proceedings may be permanently stayed in order to prevent an abuse of the Court's processes. Nor does the evidence or material relied upon in this application disclose any basis upon which an interim stay of the proceedings can be justified pending the outcome of a coronial inquest. No relevant prejudice to the defendants which might be suffered if the proceedings were to continue is apparent or has been made out: R v O'Meara [2001] NSWCCA 201 at [38]. 10 The proceedings before her Honour in Matter Nos IRC 7539 and 7540 of 2004, having been the subject of her Honour's decision on the notice of motion were then referred for reallocation. Because it was necessary to ascertain the state of the proceedings and if, as had been assumed by her Honour, the proceedings were (in the event of lack of success of the notice of motion) to be the subject of a plea of not guilty, it was necessary to ascertain the length of any such proceedings. 11 When the proceedings came before the Court on 11 December 2006, the solicitor for the defendants sought an adjournment because he had difficulties in obtaining advice from counsel because he was interstate and also because of the health problems of the Director of the first defendant. It was also indicated that the defendants were considering their position in respect of the situation where Backman J had been involved in related appeal proceedings. 12 The adjournment was granted and the matters again came before the Court on 20 December. At that time, the solicitor for the defendants indicated that there were continuing difficulties in obtaining counsel's advice in relation to the matter. There was a preliminary indication from the defendants that they were likely to appeal Backman J's decision in respect of the notice of motion. 13 Directions were accordingly made to permit the defendants to file and serve any application for extension of time to appeal from the decision of her Honour provided such application was made no later than Thursday 25 January 2007. Provision was also made for the reserving of time to deal with any such application. The defendants were also required, by Thursday 1 February 2007 to file and serve their submissions in support of any application for extension of time that they might have filed by the last week in January. 14 On 25 January 2007 the defendants filed an application to extend time to appeal against the decision of Backman J of 10 November 2006. The application was regarded as involving a new set of proceedings which were numbered IRC 90 of 2007. (For ease of reference I shall continue to refer to the applicants in the current proceedings as "the defendants". References to the prosecutor are of course references to the prosecutor in the proceedings before Backman J and the respondent in these proceedings). The documents filed by the defendants were an application to extend time to appeal and an affidavit in support by the defendants' solicitors sworn on 25 January 2007. No separate written submissions were filed either with those documents or subsequently on or before 1 February 2007. 15 As a result of there being no written submissions filed, the matter was relisted on 13 February 2007 at the request of the prosecutor and during those proceedings the solicitors for the defendants indicated that his affidavit contained the submissions that his clients relied upon in relation to the proceedings. When pressed as to which part of the affidavit contained the submissions in support of the application it was indicated that paragraphs 18 and 19 comprised the relevant parts of the affidavit. Those paragraphs read as follows: There was simply insufficient time for Applicants representatives to become fully aware of the situation, liaise with Counsel, and give a considered opinion of the merits of the Appeal. A reasonable apprehension of prejudgment could be inferred from the fact that pertinent aspects of evidence were not referred to and seemingly not considered. 16 Also at the directions hearing on 13 February, counsel for the prosecutor raised some concerns about the defendants' application to extend time and indicated that, on the basis of the terms of the application, certain jurisdictional issues would be raised. The defendants were also advised by the Court that their submissions in support of the application set out in paragraphs 18 and 19 of the affidavit (as noted above) were not adequate in terms of the kind of submissions that the Court could reasonably expect in such matters. 17 Accordingly, further directions were made to ensure that the defendants' application for extension of time could be dealt with at the hearing fixed. In accordance with those directions the following further submissions were filed: (1) 15 February 2007 - prosecutor's submission re jurisdiction of the Court as to the application to extend time;

(2) 20 February 2007 - submissions by the defendants in support of the application to extend time, including as to jurisdictional issues; and

(3) 21 February 2007 - prosecutor's submissions in reply. 18 In the light of the various submissions in the proceedings, including those as to jurisdiction, it is convenient to return to the terms of the application to extend time. That application indicates that it relates to an appeal to be brought under ss 187 and 188 of the Industrial Relations Act 1996 and (as advised by the defendants' solicitor at the directions hearing on 13 February) it sets out as the grounds for claiming an extension of time. It also sets out the grounds, which if the application for extension of time is granted, would be the defendants' grounds of appeal, in the following terms: s Reasonable Apprehension of perceived bias.

s Pertinent aspects of evidence not referred to and seemingly not considered.

s Procedural fairness and interests of justice. 19 It followed, so it was submitted, that "the preliminary issue here relates to the position of Justice Backman in that the real nature of this application pertains to the interests of justice and the aspect of perceived bias". 20 The defendants argued that therefore, in such circumstances the jurisdictional question raised by the prosecutor (to which reference will later be made) based on s 5F of the Criminal Appeal Act 1912 should not strictly arise and be allowed to preclude the appeal or the leave application. It was contended that it was not now the relevant time to argue the jurisdictional point. 21 In developing these grounds, Mr R Bonnici of counsel, who appeared for the defendants submitted, in summary, that the judgment handed down by Backman J on 10 November 2006 dismissing the applicants' application for a permanent stay of the principal proceedings (when read in the light of the fact that Backman J also sat on the Crown appeal against the sentences imposed on Mr Pump Pty Ltd and Mr Buddy Challita with respect to offences against the Act arising out of the same incident) gave rise to a perception of bias and/or prejudgment of issues relevant to the alleged abuse of process raised in the proceedings before Backman J. 22 It is thus appropriate at this point to refer to the Full Bench decision delivered on 28 June 2006 which is a relevant ingredient in the defendants' application to extend time. That judgment was in Inspector Jones v Challita and Anor [2006] NSWIRComm 207. The Full Bench was comprised of the Vice-President, Backman J and myself and the proceedings involved an appeal under s 196 of the Industrial Relations Act 1996 and s 5D of the Criminal Appeal Act 1912 against the inadequacy of sentences imposed by Staff J in relation to prosecutions of a Mr Challita under s 26 of the 2000 Act and of a company known as Mr Pump Pty Ltd ("Mr Pump") under s 8(1) of the same statute. In dealing with the appeal the Full Bench dismissed the appeal in respect of Mr Challita but upheld it in respect of the company. The penalty imposed at first instance was set aside and the defendant company was fined $75,000. It is reasonable to observe that the proceedings which led to that Full Bench decision, and the Full Bench decision itself, were relatively typical examples of appeals against inadequacy of sentence and decisions in respect of such appeals. 23 The background to the issues that arose in the appeal was that on 7 January 2003, Mr Pump, a supplier of concrete pumping and placing services, was contracted to provide a concrete placing boom and crew at a worksite on the following day. On that day, Mr Buddy Challita, a Boom Pump Operator and employee of Mr Pump was assigned to operate the concrete placing boom. A second employee of Mr Pump Pty Ltd, Mr Marcel Budwee, was assigned to assist Mr Challita. After completing the concrete pour, as the boom was being folded, Mr Challita slewed it into the foliage of a tree through which ran power lines. Because of very strong winds, the power lines were blowing back and forth within the foliage of the tree. Mr Budwee, who had been directed to clear the lines with a sponge, was found lying on the ground, having been apparently electrocuted.

24 Dewcape Pty Ltd, the applicant in this matter, was the head contractor at the site. It was retained to supervise the subcontractors. Mr Ishak was the Project Manager at the site. Arising out of the incident, Dewcape was prosecuted under s 8(2) and Mr Ishak was prosecuted under s 8(2) and s 26(1) (the latter defendant was also prosecuted, in the alternative, under s 26(1) of the Act).

25 In his submissions on jurisdiction, the prosecutor pointed out that the proceedings were commenced under the relevant provisions of the 2000 statute and that her Honour's decision dealt with a notice of motion seeking orders for permanent or interim stays of proceedings. It was also observed that s 196(1) of the Industrial Relations Act provides: 196 Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission.

It was thus contended that that provision operates to exclude the appeal provisions contained in ss 187 and 188 of the Industrial Relations Act which are the provisions on which the defendants purport to rely in the present application to extend time. 26 Consequently, the prosecutor submits that there is clear authority in the judgment of the Full Bench in Morrison v Joy Manufacturing Co Pty Limited (2004) 137 IR 8 that: (a) A judgment with respect to an Application for a Permanent Stay of Criminal Proceedings is "interlocutory" in nature; and

(b) Section 196 of the Industrial Relations Act 1996 does not give rise to a right of appeal from an interlocutory order of a judicial member sitting at first instance in the criminal jurisdiction of this Court. 27 In support of this submission, counsel for the prosecutor relied upon a number of other judgments, including those of the Full Bench in Edwards Madigan Torzillo Briggs Pty Ltd v Mansell (2004) 139 IR 362 and of the Court of Appeal in Ove Arup Pty Ltd & Ors v Industrial Court of NSW & Anor [2006] NSWCA 28 and John Holland Group Pty Ltd v Industrial Relations Court of NSW and Another [2006] NSWCA 93, thus submitting that the application to extend time to appeal should be dismissed with costs on the basis that: (a) Sections 187 and 188 of the Industrial Relations Act 1996 have no application to the subject proceedings; and

(b) Section 196 of the Industrial Relations Act 1996 and, through the operation of that section, Section 5F of the Criminal Appeal Act 1912 do not provide for an appeal from an interlocutory judgment of a single judge in the summary criminal jurisdiction of the Court: Joy Manufacturing .

28 The prosecutor also submitted that the defendants' application lacked merit and should also be refused on that basis. Consideration 29 The issue in this application whether the defendants should be granted an extension of time to appeal the decision of her Honour, should be resolved in the negative. 30 The principles relevant to the determination of an application such as the present were recently considered by the Full Bench in Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (Inspector Childs) (2006) 158 IR 281, where the Court held at [28]: In any event, whether or not this Full Bench should grant an extension of time to the applicants is a matter entirely within the Court's discretion. However, whilst the discretion to extend time is a broad one in this case, the discretion is given for the sole reason of enabling the court to do justice between the parties which means that the discretion will usually only be exercised in favour of an applicant upon proof that strict compliance with the relevant provision will work an injustice upon the applicant: Gallo v Dawson (1990) 64 ALJR 458 at 459; WorkCover Authority (NSW) v Parkes Council (1996) 70 IR 298 at 299-301. In order to determine whether the relevant provision will work an injustice, it is necessary to have regard to the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson per McHugh J citing Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; and Jess v Scott (1986) 12 FCR 187 at 194-195. Also, as McHugh JA observed in Gallo v Dawson (1990) 64 ALJR 458 at 459 it is always necessary, in cases such as the present, to consider the applicant's prospects of succeeding on the appeal. Accordingly, it is appropriate to also consider, and rule upon, the prosecutor's submissions on jurisdiction since, if correct, the defendants have no prospects of succeeding on the appeal. 31 However, although I consider that the prosecutor's jurisdictional arguments are sound and should be accepted on the bases they are put, the merits of the defendants' case are such that the application should be refused primarily on the basis of lack of merit. 32 There is little merit in the reasons for delay in filing the appeal. The affidavit evidence of Mr Lewis, the solicitor for the applicants, is that he became aware of the decision of the Full Bench in the related proceedings (Inspector Jones v Challita and Anor) on 14 August 2006 and that he sent a copy of that judgment to his clients on that day. It would have been clear at that time that her Honour was a member of the appeal Bench. 33 Backman J had heard the applicant's notice of motion for a stay of proceedings on 14 and 16 March 2006. The hearing of the appeal in the related proceedings occurred on 2 June 2006 with the Full Bench delivering its decision on 28 June 2006. Her Honour delivered her decision in relation to the application for a permanent stay of those proceedings on 10 November 2006. 34 The matters then came before me on 11 December 2006 to take the pleas after the time for lodging an appeal had already expired. The solicitor for the defendant sought an adjournment on the basis that he had been unable to arrange a conference with counsel and obtain instructions from his client in respect of lodging an appeal. The matter was adjourned to 20 December 2006 with the observations that any application to extend time would be considered on its merits which could become decidedly adverse if a final view was not reached on the next occasion. When the matter came before me on 20 December 2006, the defendants advised they had instructions to appeal her Honour's decision. Leave was given for any application to extend time to appeal to be filed by 25 January 2007. 35 Mr Lewis in explaining the delay said in his affidavit evidence that "there was simply insufficient time for the applicants' representatives to become fully aware of the situation, liaise with counsel and give a considered opinion on the merits of the appeal". The solicitor's explanation does not constitute an adequate basis to extend the time to file an appeal which was well out of time. To grant an extension would be to provide the applicants with an indulgence that they have not shown is merited. 36 An important ingredient in the defendants' case is the allegation that the proceedings before her Honour were tainted by pre-judgment because of her Honour sitting in the appeal proceedings referred to. Leaving aside the likely waiver arising from the defendants' knowledge since August 2006 of her Honour's membership of the Full Bench, it is clear that any such allegation must be determined objectively in the light of the facts and history of the matter and must be firmly established (WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65 at [15] to [16]). 37 When the defendants' allegation is tested in that way it is plain that there is no basis to it. The earlier part of these reasons sets out detailed extracts from, and consideration of, her Honour's judgment. A careful analysis of her Honour's reasons reveals no basis for the defendants' complaint. I am unable to find in the applicants' submissions the identification of any specific errors of fact or law alleged to be made by her Honour, nor matters of pre-judgment, perceived or otherwise. In any event, examination of her Honour's judgment reveals that the defendants' motion was misconceived and her Honour correctly dismissed it. 38 As earlier observed, I accept the prosecutor's submissions as to jurisdiction. It is clear that any appeal against her Honour's decision would lie under s 196 and not ss 187 and 188 but that no appeal in fact lies under s 196. As contended by Mr Cahill of counsel, there is no doubt that a judgment refusing an application for a permanent stay of a prosecution is an "interlocutory judgment": see Edwards Madigan Torzillo Briggs Pty Ltd. 39 Further, the Court does not have jurisdiction to entertain an appeal from an interlocutory decision of a single judge sitting in the summary jurisdiction of the Court. There is clear authority in the judgment of the Full Bench in Morrison v Joy Manufacturing Co Pty Limited that a judgment with respect to an application for a permanent stay of criminal proceedings is "interlocutory" in nature and that s 196 of the Industrial Relations Act 1996 does not give rise to a right of appeal from an interlocutory order of a judicial member sitting at first instance in the criminal jurisdiction of this Court. This decision was applied by the Full Bench in Edward Madigan Torzillo Briggs Pty Ltd at [24], [29] and [30]. 40 The proper application of the principles, as earlier discussed, leads to the refusal of the application.

41 The Court makes the following orders: 1. The application for an extension of time to appeal the decision and orders of Backman J in Matter Nos IRC 7539 and 7540 of 2004 is refused.

Costs of the application to extend time to appeal are reserved.

The proceedings in Matter Nos IRC 7539 and 7540 of 2004 are listed before the Court at 9.45am on Wednesday 10 October 2007 for directions and fixing of dates for hearing.

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.

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