Ishak v Air Liquide Healthcare Pty Ltd

Lord v Flight Centre Limited (No 2) [2006] NSWIRComm 282 Jia Ju Huang v The Sunnyfield Association [2006] NSWIRComm 144 CASES CITED: MacIver v Hilton Nursing homes Pty Ltd (1999) NSWIRComm 152 Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 White v Mrs Murphy's Country Fried Chicken Pty Ltd and Ors (1984) AR 794 WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298

APPELLANT: Mr Alfred Ishak (in person)

LEGAL REPRESENTATIVES: RESPONDENT: Ms Jasmin Streimer

Application to extend time to appeal by Alfred Ishak against a decision of Chief Industrial Magistrate Hart given on 8.9.2005 in matter no. CIM124249/05 JUDGMENT

1 This judgment deals with an application made by Alfred Ishak to extend time to appeal the decision given by Chief Industrial Magistrate Hart on 8 September 2005. 2 The application was filed on 21 July 2006. An appeal from a decision of the Local Court is permitted by s 197 of the Industrial Relations Act 1996 ('the Act'), Mr Ishak having brought proceedings seeking to recover unpaid overtime alleged to be due to him from the respondent, by whom Mr Ishak was formerly employed. Section 189 of the Act requires that such appeals be brought within 21 days of the date of the decision, but grants the Court a discretion to extend that time. 3 Mr Ishak's application was brought in circumstances where he left Australia on 14 September 2005 and returned on 9 July 2006. He filed the application on 21 July. The case which he advanced in written submissions was that before his departure, he sought legal advice from staff in the Registry of the Industrial Relations Commission of New South Wales. He was advised that 'it would be better to submit the appeal when I come back from overseas'. That advice was confirmed on his return to Australia, when Registry staff advised that 'it would be alright to appeal the decision when I come back from overseas and only (sic) I would be required to complete a form for extension of time to appeal and pay the processing fee of $194'. 4 Mr Ishak had travelled to Egypt, where his aunt was seriously ill, in order to take care of family matters concerning a cousin who was a child orphan who his aunt cared for. Applications to transfer guardianship of his cousin to his mother were made, as well as an application to bring her to Australia. Mr Ishak also married while in Egypt and attended to the process of applying to bring his wife to Australia. 5 The respondent opposed the application. Its case was that Mr Ishak was first employed as a clerk in July 1996 and that his position was made redundant in February 2005. He then pursued an unfair dismissal claim under s 84 of the Act, which was settled in May 2005 on terms which permitted him to pursue a claim for alleged underpayment of overtime. That application was pursued in the Local Court in June 2005 and was dismissed by the Chief Industrial Magistrate in September. 6 The appellant was aware of the decision when it was given. No appeal was filed before he left Australia, even though there had been a period of a week to do so. The delay in filing the appeal was in excess of 10 months. Even after his return to Australia, the appeal was not filed for a further two weeks. The respondent was unaware of the appellant's absence and had understood that his inaction indicated acceptance of the decision. 7 The respondent's case in written submissions was that there was no evidence as to the basis of the assertions made in Mr Ishak's submissions. Its enquiries of the Registry indicated that Registry staff did not provide 'legal advice' of the kind the appellant asserted he had received. The Registry practice was to refer people who made such enquiries to others, who give such advice. Given the lack of information provided by the appellant as to who gave him the advice he purported to rely upon, his assertions ought not to be accepted. Given the absence of evidence as to who provided the alleged advice and the dates on which it was provided, the Court would not accept Mr Ishak's bare assertions. 8 The appellant had also provided no evidence in relation to the other matters relied upon, to explain the delay in filing the appeal. His submissions did not even make clear whether the trip taken was planned, or an emergency. 9 It was argued that an extension of time to appeal is not automatic and the discretion ought to be exercised for the sole purpose of doing justice between the parties. No injustice had been demonstrated by Mr Ishak in this case. The respondent had successfully resisted the claims brought against it. It would suffer an injustice if leave to appeal were granted, after such an extensive delay. 10 The notice of appeal asserted that the basis for the application for leave to appeal and appeal was that the decision was an 'unfair decision'. No error of principle was asserted. It was argued that this was not a basis upon which any appeal could succeed in proceedings such as this. An error of fact or law had to be established. The Chief Industrial Magistrate had applied the established principle which required that in order for overtime to be payable, overtime must be worked as required or directed by the employer. The appellant had failed to establish such a case on the evidence. It followed that the appeal had few prospects of success, a matter which also had to be taken into account. 11 At the hearing of the application Mr Ishak sought the opportunity to give evidence, having in mind the submissions which the respondent had advanced. There was no opposition to the course. In his evidence, Mr Ishak said: ISHAK: Yes. I called the Registry and there was a lady as far as I remember. She said if you are going overseas you better do the appeal when you come back. You have the right to appeal any decision from the Industrial Magistrate's Court. It can be appealed in the Industrial Commission and you can appeal this and if you are going, I said I am going overseas, she said if you are going overseas then you make the appeal when you come back and for just extension of time and that was an occasion on the phone.

I am very sure it is once or twice even I make this phone calls to the Registry and I went by myself to the Registry and they said there is application form, you just fill extension of time and it will be granted, like that's what you will do. It will be, you just pay the fees. I asked about how much was the fees and she said 190, not 94, 198 or something, so, and that's exactly what they told me in the Registry, that if you are not here, she said if you are not here you can't, I said if I submit an application now, she said you can't submit now when you are not going to be here for the hearing, it can't be processed, it can't happen, you have to be here when you do the, submit the application for extension of time.

Q. Did you ask for legal advice from the Registry? A. Probably, probably she waited on the phone and asked and asked someone, the legal advisor, and then she said that later on. I don't recall honestly but I made several calls about this matter and that's what the Registry have advised me.

Q. Mr Ishak, I put it to you that when you went to the Registry and you sought advice from the Registry, that the Registry told you that you should seek legal advice and that they could not dispense that advice, is that true? And they gave you phone numbers of free legal advice that you could contact? A. No they didn't give me any phone numbers, any phone numbers to call or anything, no.

Q. Did you tell the lady that you spoke with at the Registry how long you would be overseas for? A. No I didn't tell her how long. I didn't know how long I will take in my trip so she didn't know.

Q. You have also said that the lady in the Registry told you that if you filled in the forms that your extension of time would be granted. Did the lady in the Registry explain the process to you as to seeking an extension of time? A. She just said simply you fill, there is an extension of time that you can apply when you come back and the impression that I got it was a simple process that you will just be granted time, extension of time, if you are not here in the country.

Q. So the impression you got was that it would be granted but they didn't necessarily say it would definitely be granted if you filled in the form? A. No, they just said you will apply for extension of time. 13 Mr Ishak gave no evidence about the circumstances in which he had to travel overseas, but explained that it had arisen in an emergency, when his aunt fell ill and he was the only family member in Egypt or Australia who was not working and was able to care for her. 14 Ms Streimer, appearing for the respondent, argued that Mr Ishak's evidence did not address the reasons why he had gone overseas and otherwise did not assist him to satisfy the Court that his application ought to be granted. He had given the respondent no notice of his intention to appeal the decision, or of his lengthy absence overseas. He was advised of the process he would have to pursue on his return; he conceded that he had not informed the Registry of the period of his intended absence and he had still not addressed the principles which bound the Commission in considering his application. 15 In balancing the parties positions, it would be noted that the respondent was entitled to have understood that the decision had been accepted. It had not been notified of Mr Ishak's intention to appeal or his absence overseas. The case had but little prospect of success, given the appeal regime and established principles, in relation to the working of overtime not directed or required to be worked by the employer. It followed that the leave sought should be refused. 16 In further submissions, Mr Ishak argued that regard would be paid to the fact that he was not legally qualified and had not received legal advice, just advice from the Registry. He was not aware he should have informed the respondent of his desire to appeal the decision. It wasn't fair that he had worked overtime every day over six years of employment, without payment. That overtime was worth over $100,000. The Chief Industrial Magistrate's decision 17 In his decision of 8 September, the Chief Industrial Magistrate noted that Mr Ishak claimed that he was owed $74,365.20 in unpaid overtime, but claimed $9,990, having regard to the claim he advanced under the small claim process. The money claim reflected the applicant's estimate that he had worked in excess of two hours unpaid overtime per day. He had kept no records of the additional hours worked and did not assert that such hours were directed, or authorised to be worked by the respondent His case was that he performed the work because of the onerous nature of his duties and a fear that if he did not complete his work, that he would be dismissed, which also explained why he had not pursued a claim for payment until after the termination of his employment. 18 After reviewing the evidence called by the respondent to refute the claims made by Mr Ishak, the Chief Industrial Magistrate referred to White v Mrs Murphy's Country Fried Chicken Pty Ltd and Ors (1984) AR 794 at 801 and MacIver v Hilton Nursing Homes Pty Ltd (1999) NSWIRComm 152. His Honour concluded that in order to succeed, Mr Ishak had to demonstrate either that the claimed overtime was expressly authorised by the respondent, or impliedly authorised by it. The latter arising in circumstances where the duties required were not capable of being performed during ordinary working hours, but the employer required them to be performed in any event, so that overtime was required and was impliedly authorised to be worked by the employer. 19 On the evidence, his Honour concluded that Mr Ishak had demonstrated neither. The company had a policy which required prior authorisation for overtime to be worked. While it paid Mr Ishak overtime on one occasion, where there had been no authorisation for the overtime he claimed, Mr Ishak was warned that he was not to make such claims again. His clerical duties were not regarded to be urgent and the respondent did not require him to work overtime to complete them. 20 During his employment Mr Ishak made no further overtime claims. His Honour concluded at [26] - [27]:

26. The Court finds on the material presented by the parties that any additional hours worked by the applicant were worked voluntarily by him as a result of his obsessive fears and not as a consequence of him being exploited or unfairly overloaded in any way by his employer. The Court accepts the evidence submitted on behalf of the respondent to the effect that the tasks given to the respondent were basic in nature and in no way onerous.

27. The Court notes that anecdotal material would indicate that an increasing problem in the Australian workplace is the amount of unpaid overtime being worked by employees who are deliberately overloaded with work by their employers but are confronted with a refusal by the employer to pay for overtime. There is no evidence that the respondent in this case conducts its industrial relations in that fashion.

21 The approach to be adopted to applications such as this is well settled. Justice must be done between the parties in the circumstances before the Court and regard must be had to the history of the proceedings, the nature of the litigation, the consequences of the refusal of, or granting of the application and the prospect of success of the appeal. (See the recent discussion of the applicable authorities by Kavanagh J in Jia Ju Huang v The Sunnyfield Association [2006] NSWIRComm 144.) 22 As the respondent argued, these principles were discussed in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299-301:

(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 Limited [1978] V.R. 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 [1973] 2 N.Z.L.R. 86 at 92]; and Jess v. Scott [ supra at 194-195; 185].

(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] V.R. 871 at 872]; Hughes [ supra at 263-264]; and Mitchelson v. Mitchelson [1979] 24 A.L.R. 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 A.L.J.R. 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 W.L.R. 8 at 12; [1965] 3 All E.R. 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 [ supra at 601].

In accepting the approach inherent in the above propositions, the Full Commission observed in Skelly [ supra 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. 23 That approach is binding in these proceedings. 24 In this case, what must be considered is a very extensive delay in filing the appeal - in excess of 10 months, where there was plainly time for an appeal to have been filed before Mr Ishak left the country, albeit only a short time. Even after his return, there was a further delay in filing the application. 25 The extensive delay was sought to be explained, in large, part because of advice which Mr Ishak claimed in his written submissions and in his oral evidence at the hearing, had been given to him by unidentified members of the Registry staff on at least three separate occasions, twice by phone and once in person, before he went overseas. His understanding of that advice was that he could not file an appeal before he left to go overseas, because he had to be in Australia when the matter came on to be heard; that he could file an application for leave to extend time upon his return and that this was a formality, requiring only the payment of a filing fee. 26 That advice of the kind which Mr Ishak asserts he received might have been given by the Registry staff, seems most unusual, given the nature of the claimed advice, the relevant provisions of the Act and the functions of the Registry, which do not include giving advice of the kind Mr Ishak claims to have received. The advice Mr Ishak claims he received, is after all, quite incorrect, given the requirements of the Act and the principles which govern the Court's exercise of the discretion granted by the Act to extend time to appeal. Nevertheless, Mr Ishak was not cross examined as to the truth of the evidence which he gave and so it must be accepted that his understanding of whatever he was told by Registry staff members was that he could not file his application for leave to appeal and appeal before he went overseas and that an application for extension of time was a formality on his return. 27 That does not however, of itself lead to the conclusion that the application must be granted. All of the evidence and the submissions, including those advanced by the respondent, must be considered in the context of the applicable principles to which I have referred and which are binding. 28 Having failed to file an appeal within the time specified in the Act, in seeking an extension of time, an onus falls on Mr Ishak to demonstrate that the circumstances are such that the extension may properly be granted, as a matter of justice in the particular circumstances. Such extensions may never be granted lightly, or automatically. 29 As the respondent submitted, that it was never informed that Mr Ishak intended to appeal the decision upon his return to Australia, is a relevant factor. While Mr Ishak argued that he was not legally qualified and unaware that he should have done so, does not alter the fact that the Act obliged him to lodge an appeal within 21 days, if he wished to exercise that right. Simple prudence would suggest that the other party should be put on notice, if there was to be a delay, especially a long one and an intention later to seek an extension of time to appeal. 30 The result was that there was a very extensive delay in the filing of this application, a matter which cannot be overlooked. As the respondent submitted, it was in the circumstances, entitled to expect that it would not have to meet any challenge to the Chief Industrial Magistrate's decision. 31 Consideration must also be given to Mr Ishak's prospects of success on appeal. Under the Act there is no automatic right of appeal in cases such as this. Section 188 of the Act imposes a public interest test, in these terms: (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) 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. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister.

32 Given the nature of the claim advanced in the proceedings below - payment for overtime - and the reasons given by Chief Industrial Magistrate Hart for dismissing the appeal, namely that Mr Ishak had not established on the evidence that the overtime he claimed to have worked had been expressly or impliedly authorised by the respondent, it is difficult to see that Mr Ishak has much prospect of success on the appeal, even if he could satisfy the public interest test, having regard to the applicable principles, which his Honour applied. 33 That conclusion is reinforced by a consideration of the basis upon which Mr Ishak seeks to advance the appeal, namely "that it was unfair and contained several untrue and incorrect conclusions". Unfairness is not a basis upon which an appeal in a case such as this could be entertained on appeal, given the claim Mr Ishak advanced below and the applicable law. Mr Ishak pursued his claim under s 379 of the Act, which provides a small claims procedure for claims under $10,000, which are brought under Part 2 of Chapter 7 Enforcement, of the Act. The claims which may be pursued under the various provisions made in that Part of the Act, do not include claims of unfairness, for which provision is made in various ways, in other parts of the Act. 34 As to the other matters raised, namely errors allegedly made by the Chief Industrial Magistrate, it cannot be overlooked, as has often been observed by appeal benches, for instance in Lord v Flight Centre Limited (No 2) [2006] NSWIRComm 282, that:

5 It is well settled that leave to appeal will never be lightly granted and not when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance. 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].)

6 It is also well settled that '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 at [4].) If an appeal seeks, by and large, merely to challenge findings of fact or the exercise of a discretion, it will face a significant hurdle in obtaining leave. (See Box Valley Pty Ltd v Price (2000) 97 IR 484 [4].)

35 It is in these circumstances that the respondent argues that it ought not to be deprived of its vested right to retain the judgment given in September 2005. In reality, in his appeal, Mr Ishak seeks merely to challenge his Honour's conclusions on the evidence, a matter in respect of which it is unlikely that leave to appeal could be granted, consistently with the provisions of s 188 of the Act. That the appeal has little prospect of success, even if the extension of time sought were granted, is a matter which must also be taken into account. 36 The discretion to deprive the respondent of the right vested in the judgment below, must not lightly or automatically be granted, as was observed in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3. In this case, in my view, the inconvenience flowing from the application being granted, after such a long delay, cannot be overlooked, given the true nature of the appeal and its real prospects of success. To do so would be to fail to do justice between these parties. 37 For all of these reasons, I am satisfied that it would not be in the interests of justice that Mr Ishak's application be granted. Orders

38 For the reasons given, the application is dismissed. Mr Ishak is ordered to pay the respondent's costs, as agreed or assessed.

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