Global Marketing Corp Pty Limited v Peter John Greenwood

GLOBAL MARKETING CORP PTY LIMITED AND PETER JOHN GREENWOOD Application by Global Marketing Corp Pty Limited to extend time to appeal and appeal from orders of Commissioner O'Neill given on 26 February 2004 in matter number IRC 5547 of 2003

1 This judgment concerns the appellant's application for an order extending time to appeal. The decision in question was given by Commissioner O'Neill on 26 February 2004, pursuant to s89 of the Industrial Relations Act 1996 ('the Act'), after an ex parte hearing. The appeal was filed on 14 April, well outside the 21 day time limit.

2 The application was supported by an affidavit of Andrew Roth, the appellant's telemarketing manager, sworn on 14 April. There was an issue as to whether or not the affidavit had been served. Nevertheless, after the parties conferred, the hearing continued and Mr Roth was not required for cross examination.

3 Mr Roth's affidavit asserted that he had appeared for the appellant before the Commissioner on 12 February, when directions were given as to the filing and service of statements. Mr Roth said that he was not aware of any further listing of the matter and that the first the appellant knew of the Commissioner's decision, was when a copy was faxed to it by the respondent on 26 March, together with the orders made.

4 The appellant then sought legal advice. It learned that it was out of time to file the appeal and steps were taken to pursue this application, which was filed on 14 April, given the intervening Easter period. It was asserted that the appellant had substantial matters to raise on the merits of the s84 application. A denial of natural justice was also asserted.

5 The grounds in support of the application for extension of time provided: 1. The appellant were (sic) only informed of the orders the subject of this appeal 29 days after the order were (sic) made when the lawyers for the other side sent a facsimile to the appellant enclosing a copy of the orders on 26 March 2004, which was a Friday. The appellant then sought legal advice and tried to establish what happened at the Commission, which process quickly ran into the Easter holiday period, although the appellant did attempt to file the appeal papers just before the Easter break on 8 April 2004.

2. The orders appealed against were made in the absence of the appellant and without the appellant's prior knowledge of the matter being listed on that day.

3. The appellant has substantial merits and evidence to present to the Commission in defence against the claim made against it, and ought to be given an opportunity and the natural justice to be heard on the substantial merits of the case.

4. The delays were relatively minor, particularly given the circumstances cited in paragraph 1 above.

6 The respondent disputed Mr Roth's account of the events in question. Various parts of the Court record below were tendered. They showed that the matter came before Commissioner O'Neill in conciliation on 29 October 2003. The conciliation was unsuccessful and the Commissioner listed the matter for hearing on 26 February, giving directions for the preparation of the matter for the hearing in the meantime. Mr Roth appeared for the appellant that day.

7 The respondent filed his material in November, in accordance with the directions given. The appellant failed to file and serve its material and the respondent sought the relisting of the matter. It was listed for further directions on 12 February. Mr Roth appeared again. Various matters were dealt with on that occasion, including an amended timetable for the filing of the appellant's material, by 23 February. The respondent was to put anything in reply by the date of hearing, 26 February. The respondent, however, neither filed any material, nor appeared at the hearing, which then proceeded ex parte.

8 The appellant argued that in the circumstances, the extension of time should be granted. The delay was not substantial; the appellant had not been legally represented; it had rather been represented by an employee, who, through inexperience, lack of understanding, or lack of organisation, had failed to appear at the hearing. It had substantial matters to put on the merits and should not be denied an opportunity to be heard.

9 The respondent argued that there had been a significant delay. The appellant had not been denied natural justice. It was aware of the listing, but had simply not responded to the Commission's directions and had failed to appear. The successful appellant should not now be denied the fruits of his victory. Justice could not thus be done.

10 The principles which apply to an application such as this are well settled. In Anthony Andrew Cavacuiti and another v Toyota Motor Corporation Australia Limited [2002] NSWIRComm 341, Walton J, conveniently summarised them at [40]: Relevant General Principles

40 The principles to be applied to an application to extend time to appeal are set out in WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (1996) 70 IR 298, a judgment which I applied in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. It has also been considered and applied by Wright J, President, in Tadic v Beslic [2001] NSWIRComm 107; NSW Teachers' Federation v NSW Office of The Board of Studies [2000] NSWIRComm 1; LEP International Pty Ltd v Caine (2000) 97 IR 35 and De Luxe Cab Company Ltd (formerly known as Deluxe Red and Yellow Cabs Cooperative Trading Society Ltd) v Grenside (1999) 92 IR 384.

41 In WorkCover Authority of NSW (Inspector Salmon) v Parkes Council the Full Bench of this Court summarised the relevant principles (at 299-301) as follows: The proper approach to adopt in a consideration of the application was common ground between the parties. Reference was made in that respect to the decision of the Full Commission ( Peterson and Schmidt JJ, and Connor CC) of the former Industrial Relations Commission of New South Wales in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 5-6 as followed by the Full Commission ( Cahill VP, Maidment J and French CC) in Brookes v Watling (1995) 61 IR 163 at 166-167. In those two cases the Full Commission cited recent authorities formulating the way in which the grant of an extension of time for the filing of an appeal should be considered: see Gallo v Dawson (1990) 64 ALJR 458; Jess v Scott (1986) 12 FCR 187; and Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601. From those cases, the following propositions may be drawn: (1) The grant of an extension of time is not automatic and the object of those rules which fix times for doing acts is to ensure they do not become instruments of injustice; the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262.

(2) The discretion can only be exercised in favour of an extension of time upon proof that compliance with the rules will work an injustice upon the applicant therefore which necessarily requires regard be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application to extend time: see Avery v No 2 Public Service Appeal Board [1978] 2 NZLR 86 at 92; and Jess v Scott at 194-195.

(3) An application for an extension of time in which to file an appeal always requires consideration of the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-264; and Mitchelson v Mitchelson (1979) 24 ALR 522 at 524.

(4) Upon the expiration of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: see Vilenius v Heingar (1962) 36 ALJR 200 at 201.

(5) There must be material upon which it can be satisfied that to refuse the application to extend time would constitute an injustice: see Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1965] 3 All ER 933 at 935.

(6) "The difference between two weeks and four weeks is not much (by which the time is to be extended) … We never like a litigant to suffer by the mistake of his lawyers": per Lord Denning in Ghosh at 601. In accepting the approach inherent in the above propositions, the Full Commission observed in Skelly (at 6): "The Commission's Rules require an appeal to be filed within 28 days of a decision. 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 extend 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."

42 In applying those principles to this matter I note some particular points of emphasis: 1. The exercise of the Commission's discretion to extend time to appeal is not constrained by the requirement of some court rules that special circumstances be demonstrated: Brady v Kennedy t/as "Sardines" (at 264). 2. There is a wide discretion to extend time where the justice of a particular case requires that outcome: Brady v Kennedy t/as "Sardines" (at 264); Tadic v Beslic at [22]. In exercising the discretion to extend time the Commission may consider a number of factors, such as the length of delay (see Jess v Scott (1986) 12 FCR 187 (at 195); Gallo v Dawson (1990) 64 ALJR 458 (at 481); and Salter Rex & Co v Ghosh [1971] 2 QB 597 (at 601); whether any prejudice would be suffered by the respondent by reason of the granting of the extension of time (see Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 (at 6) and LEP International v Caine (at [57]); whether there is a reasonable explanation for the failure to file the appeal within time (see LEP International v Caine (at [50]); whether the delay was due to an error or mistake by a legal advisor (see Brady v Kennedy t/as "Sardines" (at 269) and Skelly v Prouds Jewellers (at 6) and the prospects of the appellant succeeding in the appeal (see WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (at 299). However, the ultimate exercise of discretion is governed by the requirements of justice in a particular case. In Skelly v Prouds Jewellers it was held (at 6): "The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to the circumstances before it."

11 In this case, the basis of the appeal was a denial of natural justice, because it was asserted that the appellant was unaware of the hearing date and that in those circumstances, it was unfair that the matter was heard in its absence. This also provided the explanation for the delay in filing the appeal. It was put that the appellant only became aware of the decision after a copy was provided to it by the respondent on 26 March.

12 In advancing submissions for the appellant, it was conceded that the appellant was represented by Mr Roth in October 2003, when the matter was listed for hearing in February and that contrary to what was asserted in his affidavit, the transcript of the proceedings on 12 February, when Mr Roth also appeared, also made clear that the matter was to be heard on 26 February. The submission that Mr Roth was confused or disorganised, was not supported by anything in his affidavit.

13 To the contrary, the evidence suggested that the appellant was well aware of both the directions made by the Commission and the hearing date allocated and that despite further accommodation being made, the appellant simply made no efforts to adhere to the directions given. Even though this application and Mr Roth's affidavit asserted that the appellant has substantial matters of merit to advance, no material to support that assertion has been filed, despite the directions given by Commissioner O'Neill in October 2003 and February 2004.

14 Furthermore, it also became apparent from the submissions advanced, that the appellant approached its legal representatives at the latest on 27 February, when a telephone enquiry was made and advice given by the Commissioner's Assistant, that the Commissioner had made orders in the proceedings the previous day. The appellant's solicitor wrote to the Commission on 3 March. Copies of the Commissioner's decision and orders were later provided to the appellant on 12 March, again by the respondent on 17 March and again to the respondent's solicitors by the Commissioner's Assistant on 5 April. There was no attempt made to inspect the Commission file.

15 The delay in filing the appeal in those circumstances is difficult to understand. It was not a particularly lengthy delay, but on any view, even from the date upon which the appellant first received a copy of the decision and orders, the appeal was not filed within 21 days. There was no real explanation for this. It was difficult to understand, given the nature of the appeal papers. In any event, it cannot be ignored that in reality, the appellant was aware from the day after the decision, that orders had been made against it.

16 Even this might not have been an overwhelming point, had not the evidence shown that, contrary to the case which the appellant advanced, it was in fact, plainly on notice of the hearing date, since October 2003. In considering an application such as this, the appellant's prospects of success on appeal must be given consideration. On this evidence, they must necessarily be assessed as being low. An exparte hearing does not necessarily give rise to any denial of natural justice. What is required is that a party be given an opportunity to be heard, not that the party avail itself of that opportunity.

17 It is also clear enough that in circumstances where a party has not sought to take steps necessary to defend proceedings brought against it under the Act, and where it later changes its mind once it becomes aware of the orders made, that the consequences of setting aside a judgment in favour of the other side are considerable. Thereby the successful party, which has adhered to the Commission's directions and has appeared at the hearing and has made out a case on the evidence, is entirely deprived of the fruits of its victory.

18 That is of particular relevance in proceedings such as this. The respondent was legally represented in this case. Proceedings brought under s84 of the Act are generally conducted on a no costs basis. It follows that the balancing considerations available to a Court where costs orders may be made, are not available in proceedings such as this.

19 In this case, this consideration is of particular moment. Here, the appellant relied upon the fact that while the respondent had complained only of being owed some $2,000 to $3,000 in his application, the Commissioner had made an order of $7,000 in favour of the respondent. The Commissioner plainly took a negative view of the treatment the respondent had received. The risk that such a view will be taken necessarily arises when a party does not take steps to put on evidence and to appear at a hearing to defend a claim brought against it. In any event, the money order is not concerned with underpayment of wages, but the unfairness of the dismissal which the Commissioner found that the respondent had amply made out. The appeal does not seek to attack this aspect of the decision.

20 In all of those circumstances, I am well satisfied that the appellant has not made out the onus falling upon it. Justice could not permit the extension of time here sought.

Orders 21 For all of the reasons given, I am satisfied that the application for extension of time must be refused. I order accordingly. ------------------------

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