John Ninness and ors v Miller Bulk Haulage Farming Co Pty Ltd [2008] NSWIRComm 183 | Case summary

1 There are several applications before the Court seeking an extension of time to appeal against decisions of the Chief Industrial Magistrate ("CIM"), made in May 2005. The application to extend time is more than three years out-of-time but the applicants contend that, essentially, the need for this course to be taken arises out of extraordinary circumstances for which they were not responsible and of which they had no knowledge. Not surprisingly, the respondent to the applications has vigorously opposed the extension of time sought by the applicants. 2 For the most part, the background to these applications can be briefly stated although dealing with the period from 2005 to 2007 involves a consideration of some evidence put in contention by the parties. Each of the applicants was employed by the respondent as a truck driver and it is alleged that the employment was governed by the Transport Industry (State) Award. The award required the payment, as varied from time-to-time, of a certain amount per kilometre driven and there was also an hourly rate payable. In relation to both the kilometres travelled and the hourly rate it was alleged that there was an underpayment by the respondent to each of the drivers over a period of time, the earliest claim dating back to 1998 and concluding in 2003 when the respondent ceased business. In late July 2004, applications were filed in the Chief Industrial Magistrate's Court seeking recovery of these payments under Ch 7 of the Industrial Relations Act 1996. The applications also alleged that, while employed travelling and working as long haul drivers, the alleged underpayments resulted in an underpayment of superannuation. In each application filed through their agent, the applicants sought access to the time and wage records and the mileage log for the previous six years and estimated that the claims for each applicant could amount to a sum of up to $50,000. The claims were lodged by Mr Brian Evans as agent for each applicant. Mr Evans was an industrial advocate and consultant and was the principal of a company identified in the Court records as Interim IRC Pty Ltd. Through Mr Evans' involvement in it, a successor to that company continued the matters although for present purposes, it only need be noted that Mr Evans alone was acting as agent for each of the applicants. This arrangement operated with the applicants' nominating one of the drivers, Mr Marcel Stanton, as the contact point with Mr Evans and the means by which information could be passed between the agent and the applicants and material gathered as required for the purposes of the claims in the CIM's court. 3 It was apparent from the terms of each of the claims that, while the applicants could nominate the award provision alleged to be breached, access to the respondent's records was required in order to calculate the precise claim for each of the applicants. It appears that Mr Evans informed the applicants that it was likely to be a lengthy process because of the need for a detailed inspection of the respondent's records and the daily timesheets over a period of six years in order to calculate the amounts alleged to be due under the award. Arrangements were made for the respondent's records to be made available to Mr Evans and it appears that an agreed adjournment of the proceedings occurred and Mr Evans proposed that, during the adjournment, he would conduct a detailed inspection of the records and calculate the claims. 4 The applications were mentioned on a number of occasions before the CIM sitting in Newcastle but for the purposes of the application for extension of time, the focus of the parties has been on the court records and the listing of these matters on 8 February 2005, 5 April 2005 and 3 May 2005. It should be stated at this time, despite requests for the transcript on these days, advice was received that the tape recordings of each proceeding had been unable to be located and that in the normal course, a transcript would not be produced and kept with each file. The result is that the parties have tendered the original court records and in particular the running bench sheet for each matter, and have been put in the position of making submissions about what the entries on the bench sheets mean and thereby, what can be deduced as occurring on each of the days in question. 5 The parties agree that, on 8 February 2005, Mr Evans appeared representing the applicants and Mr Austin of counsel appeared for the respondent company. On this occasion Mr Evans requested an adjournment to allow sufficient time to inspect the timebooks and mileage sheets that were to be produced to him by the defendant. He agrees that the matter was set down for further mention on 5 April 2005. Mr Evans' evidence is that, because of a debilitating illness, he was unable to appear on 5 April 2005 hearing and thereafter was unable to work in his industrial consultancy until he re-filed the same claims in late December 2007. 6 With one exception, the bench sheets show that, in February 2005, the matters were adjourned until 5 April 2005. On 5 April 2005, no appearances are recorded and the letter A in a circle appears, possibly indicating an adjournment. On 3 May 2005, no appearances are recorded but the box "withdrawn" is ticked. Underneath that entry against the box "Chief Industrial Magistrate", an A in a circle appears again with a signature that appears to be that of the CIM at the time, Mr Miller. The exception appears in the records concerning the claim filed on behalf of Mr Allan Featherstone. On the 5 April 2005, against the box "representative" a tick appears - the name "Evans" appears in the box next to this entry for 8 February 2005. Against the box "adjourned to" is the date 3/5/05 and against the box "for - mention" is a tick and over the box "for - mention" and "for - hearing" is the capital letter A in a circle. Below that entry is a written entry that appears to say "applicant to inform respondent" and then there is an initial in the box "Chief Industrial Magistrate". The entry for 3 May 2005 identifies no representatives for the applicants or the respondent but against the box "withdrawn" is a tick and against the box "Chief Industrial Magistrate" is a capital A in a circle together with the signature or initials apparently of Mr Miller. 7 The entries on Mr Featherstone's court bench sheet prompted counsel for the respondent to suggest to Mr Evans that in fact he did attend the 5 April 2005 mention of the matter and that he was directed by his Honour to inform the respondent of the further mention listed on 3 May 2005. Mr Evans' evidence was that, due to his illness, he did not attend the 5 April 2005 mention and had heard nothing from the court about the case being listed again before he took the step of re-filing the applications in December 2007. In cross-examination it was put to him that he may indeed have attended the 5 April 2005 mention but because of his illness had not remembered doing so. Mr Evans rejected that possibility. Counsel for the respondent, although appearing on the 8 February 2005 mention, accepted that he had not attended at the 8 April and 3 May 2005 mention of the matters. The parties agreed that they had not received any notification that the matters would be listed on 3 May 2005 before the CIM at the Newcastle court or that the matters could be terminated on that date. 8 It appears from the court bench sheet, however, that the matters were listed again for mention on 3 May 2005 and it appears that the CIM treated the matters as "withdrawn". There is nothing in the evidence before this Court to suggest that Mr Evans in fact withdrew the applications or had instructions to withdraw the applications or desired to withdraw the applications. The respondent frankly conceded that, not only were they unaware of the May proceedings, they were unaware that the matters were "withdrawn" until the applications were refiled in December 2007 which led to a consideration of the court records of the matters previously filed. There is nothing in the court records by way of correspondence or application indicating that the applicants withdrew the proceedings. Mr Evans' explanation for his non-appearance is the state of his health at that time and that has been subjected to some scrutiny and is a matter to which the Court will return. 9 To complete the chronology, on 18 April 2008 Mr Evans, on behalf of the applicants, filed a notice of motion in each of the new matters seeking the following orders: 1. That the applications filed at Newcastle on behalf of the plaintiffs on 21 July 2004 against the respondent Miller Bulk Haulage Pty Ltd be reinstated due to the long term ill health of the plaintiff's advocate and the absence of communication from the Court; 2. Alternatively, that the applications filed on behalf of the plaintiffs at Sydney on 17 December 2007 and the amended application filed in Newcastle on 6 March 2008 against the respondent Miller Farming Co Pty Ltd be joined with the applications filed at Newcastle on behalf of the plaintiffs on 21 July 2004. 10 The motion was dealt with by the CIM, his Honour Judge Hart, in May 2008. His Honour was of the view that he was unable to interfere with the order made by CIM Miller in May 2005 withdrawing the proceedings. Apparently, during the course of discussions with his Honour, it was suggested that the only course available to the applicants would be to appeal against the 2005 orders and that would involve an application for extension of time. On 2 July 2008, each of the applicants filed an application to extend time to appeal against the determination and orders of CIM Miller made in May 2005 and also attached the proposed grounds of appeal. 11 On the hearing of the application for extension of time, the applications filed by Kenneth Bailey (IRC 1042 of 2008) and Robert Hill (IRC 1044 of 2008) were withdrawn. Three affidavits from Mr Evans were read and he was cross-examined. A number of the applicants also filed affidavits in identical terms (except for Mr Stanton) verifying that they had authorised Interim IRC Pty Ltd trading as Interim WRC to initiate the claim during 2004 and that Mr Stanton was their representative with Mr Evans as consultant and they understood that Mr Evans would be undertaking the claim on their behalf against the company. They had been told by Mr Stanton the claims would take a long time and that each applicant would be contacted by Mr Stanton as and when progress occurred with the claims. Each of the applicants claimed that, during 2005, 2006 and 2007, they were concerned they were receiving little or any information and that situation was discussed regularly with Mr Stanton but he was unable to provide any information. Each applicant who provided an affidavit stated that he was never aware that Mr Evans had been ill and could not continue with the claim and if they had been aware of these difficulties, they would have arranged to have the claim dealt with by another consultant or solicitor. 12 Mr Stanton in his affidavit stated that, from time-to-time, he was in contact with Mr Evans following the lodgement of the claim. Mr Evans' preliminary advice was that the claim would take a considerable period of time as it would require detailed analysis of the time and wage records going back at least six years and that task would be time consuming. The other applicants had nominated Mr Stanton as their representative to deal with Mr Evans and his consultancy in relation to the claims and this step was taken to make communication easier. Mr Stanton said that, during 2005, 2006 and 2007, he became concerned because he had heard very little from Mr Evans - he had endeavoured to make contact with him and Mr Evans would not return of his calls. When he did get to speak to Mr Evans he was not able to obtain much information from him and he would be fobbed off with "indistinct" answers regarding the work supposedly being undertaken. Mr Stanton said he finally made contact with Mrs Evans in early September 2007 when she responded to a telephone message he had left. Mrs Evans advised him that she had taken over the management of the business because Mr Evans had been suffering from and continued to suffer from chronic fatigue syndrome. She advised Mr Stanton that Mr Evans was responding to the changes in medication and as generally recommended by the immunologist and had recommenced his work on the spreadsheets and the analysis of the respondent's documents. She said that Mr Evans was confident that he could complete the spreadsheets and the analysis by the end of October 2007 and would be able to recommence proceedings at that time. Mr Evans contacted Mr Stanton in December 2007 and advised that the work was completed to the extent that the applications could be reinstated. Mr Evans advised that the applications had to be refiled and that could only be done in Sydney. That task would be undertaken within the next few weeks. Mr Stanton stated that he was not previously aware that Mr Evans had been ill and could not continue with the claim and like the other applicants, stated that he would have arranged to have his claim taken over by another consultant or solicitor had he been aware that Mr Evans was not able to continue on his behalf. 13 In affidavit evidence, Mr Evans set out his long experience as an industrial consultant and as an advocate before industrial tribunals. He set out in some detail, which is not necessary to repeat here, his medical history beginning in November 2001 when he started to take the prescribed anti-inflammatory drug Celebrex. By March 2002, the daily dose of that medication had increased but had been reduced by September 2005 because of restrictions placed on the drug by the Federal Government. He said he suffered side effects during this time including dizziness, indigestion, abdominal pain, blurred vision, tiredness, fatigue and tinnitus. During December 2004 his health deteriorated to the extent that his company office located in Newcastle was vacated and closed due to his inability to continue work. From this time and for the following two and a half years he was unable to recall or remember many personal or work related matters due to fatigue and tiredness. He was unable to represent many clients due to these side effects and he had no recollection of a number of clients or the particulars of cases and he found he was in no position to refer these matters or any other industrial matters to other colleagues or solicitors as he simply had "no recollection of the work to be undertaken". 14 Mr Evans described the tedious nature of the detailed work necessary to calculate the claims for the applicants in the present matters, taking into account also the complexity of the award variations during the six year period under scrutiny. He stated that, while this task could normally be easily undertaken, his lack of focus and concentration meant that more than a few minutes work was impossible during the time of his illness. He had received no communication or contact from the respondent company, nor did he communicate with them due to his medical condition. The last communication he received from the respondent was an offer that was referred to him prior to the mention on 5 February 2005. 15 During the whole of 2005 Mr Evans continued to work but on very limited and restricted hours and described himself as undertaking "menial consulting work" from his home office. This was due to his lack of focus and concentration and the severe chronic fatigue he was suffering. During this period he was also taking large doses of multivitamins in an endeavour to combat the fatigue but was unaware that he was thereby indirectly contributing to an eventual iron "overload" problem. By mid-September 2005, the Cerebrex dose was reduced because of its side effects. 16 In January 2006, Mr Evans re-opened his Newcastle office as his health had slightly improved but he continued to operate on a restricted and limited basis until the end of June 2006. In this period he was undergoing regular medical examination as the fatigue and lack of concentration was not diminishing. He continued to suffer the side effects earlier referred to and they restricted and limited the work he was able to undertake. During this period he said he was unable to undertake complex work that required concentration or analysis as was required for these matters. 17 In late June 2006, Mr Evans attended a lunch with other tenants in his office and consumed a number of raw oysters. Some days later his health deteriorated to the extent that he could hardly function due to chronic fatigue. On or about 9 August 2006 he sought medical assistance and following a number of blood tests it was discovered that he had elevated iron levels and it was deduced that the toxin in the raw seafood he had consumed created a reaction to the iron in his blood which led to debilitating symptoms. From the beginning of 2005 until he was placed off work by his medical practitioner, he was financially supported by another family business. In mid-October 2006 his medical practitioner certified that he was unfit to conduct any normal duties and he was thereafter supported by income protection. In August - September 2006, Mr Evans was tested for a blood disorder and was referred for examination due to elevated iron levels and chronic fatigue. In mid-October 2006 he was placed "off work" until his medical condition improved and continued to be off work between mid-October 2006 until 30 July 2008. In April 2008, he was placed on limited duties, being four hours per day on two non-consecutive days per week. This was increased to three days of four hours per week in June and was being reviewed monthly thereafter. He again stated that, during this entire period, he suffered from chronic fatigue, lack of concentration, lack of focus, constant and severe headaches, chronic joint pain, pre-diabetes and occasional severe abdominal pains. Further examination detected an iron overload and resulted in a regular blood drain undertaken on a weekly basis between January and April 2007. Further tests in August - September 2007 led to a recommendation that he cease taking Celebrex immediately and he was placed on a strict diet. On ceasing taking Celebrex, Mr Evans stated that his health significantly improved to the extent that his powers of concentration had improved as had his focus and other symptoms that he had experienced such that he was able to undertake limited work. 18 Mr Evans reiterated that, due to his illness, he was unable to attend court for the mention on 5 April 2005. Enquiries at the court registry now led him to the belief that, on 5 April 2005, the CIM stated that if the parties did not appear on 3 May 2005 the case would be closed. Mr Evans stated that, neither his company nor the applicants were ever notified by the court that the matter would be closed or withdrawn if no appearances were entered by either party at the mention on 3 May 2005. Neither Mr Evans nor the applicants had received any telephone communication or correspondence from the court advising of this course and he believed that had been confirmed to him by the court registry when he made his enquiries in late January 2008. He regarded himself as being in no condition to appear before the court at any time from March 2005 until November - December 2007. He asserted that if he had been notified that the matter would be withdrawn at that time, the matters could have been handed back to the applicants or other representation arranged. 19 In oral evidence, Mr Evans said that the reason he filed the applications again in December 2007 was a matter of "practice". He had been an industrial relations practitioner for 32 years and it was his experience that, when matters had been adjourned sine die or the parties wanted to do so, they would refile if they wished to continue a matter at some later date and it was something he simply did naturally. He said there was no foundation for the practice, it was just something he adopted. In cross-examination, Mr Evans denied that he had exaggerated his illness and the difficulty he had in working and he emphasised that his inability to do any work was also a state of mind. He had no memory of the details of client matters and could not concentrate. Mr Evans accepted that his evidence was incorrect about the respondent not being represented at the hearing on 8 February 2005 but that was the best of his recollection when he swore his first affidavit. Mr Evans was shown the bench sheet for Mr Featherstone's case with a tick against his name in the previous column as being the representative in court at the April hearing. Mr Evans said he had never before seen bench sheets and although he had been shown that entry he said that he knew he was not present in court on that day. He was reminded that Mrs Fay Miller, a director of the respondent, had filed an affidavit saying that she had spoken to Mr Evans before the April hearing and that Mr Evans had told her that he would appear on that day and mention the matter for both parties because the company's counsel could not be present on that day. Mr Evans said he could not recall making that statement but accepted that it was a possibility. He did not accept that it was a possibility that he was wrong about not attending court for the April mention and had been told by the court registry that there was no appearance that day for any party. 20 The lapse in memory was still partially with Mr Evans to the present time and he accepted that he was in error in his affidavit in saying the last contact he had with the respondents was just before the February 2005 hearing and that indeed, he had contact with Mrs Miller in early March 2005 when the company records were provided to him. Despite memory problems, Mr Evans believed that he had only been in the CIM's court in February 2005 and then in February 2008 and he had not been in that court in the intervening period. Mr Evans also agreed that there was a conversation with Mrs Miller between May and July 2005 although he did not agree with all of her assertions about the content of that conversation. He accepted that there was a conversation about the spreadsheets and that the computer spreadsheet had become corrupted. He was doing a little bit of work on the spreadsheet and had continued to do that for a long period of time but was performing only a little bit of work at a time and he did it when he could. He continued to do that during 2005. While doing that work he did not contemplate the future progress of the claims. He had felt ill from 2004 and had been doing part of his work and then breaking off and that is what he did in relation to the spreadsheet calculations. While doing the spreadsheet work he had not contemplated the future progress of the matter. Mr Evans accepted that the only purpose of the work was to make progress with the applicants' claim although he did not have in mind at what stage the litigation had reached in the court. His experience as an industrial advocate told him that if a matter was to be called back on, the parties were notified. 21 Although Mr Evans only performed "bits and pieces" of work during 2005, he re-opened his office in January 2006. He opened the office with a different family company and it had a 120 contractors involved in labour hire work but that work was looked after by a bookkeeper and involved authorised payments. Mr Evans spent very little time in the office and there was little involved in getting the office up and working. He kept working restricted hours through 2006 but he would go to the office once or twice a week, but that was more to sit down and speak with the bookkeeper and contractors than to do consulting work. Mr Evans thought that the work he did in 2005 was approximately the same as the work he did in 2006. His health was marginally better at the beginning of 2006 because he had stopped taking the larger dose of Celebrex. Mr Evans confirmed that, from October 2006 to April 2008, he was medically certified as totally unfit for work and he did not recall working during that period. By September 2007, Mr Evans said he was feeling better and was aware that his wife had told Mr Stanton that he was beginning to work again on the calculations of the claim. The majority of that work, however, were calculations being performed by a processor and not by Mr Evans. He checked the detail but the formula had already been put into the database and the actual entry of the kilometres travelled by the applicants was inserted by another person. Mr Evans thought that this work would be completed by October 2007 but in fact it was not completed until December 2007 and that was when he informed Mr Stanton that the matters would be filed shortly. From September 2007, Mr Evans had worked on this matter as he could again concentrate. This work was performed although he was still certified as being medically unfit for any work but he said he was feeling better. The amount of work he could perform during this period was due to a state of mind: some days it was five minutes and sometimes it was more and that was the way he approached the task. 22 In relation to Mr Evans' evidence that he was not in a position to refer the cases to someone else, he reiterated that his disability was also a state of mind and he was doing whatever work he could and when he could not, he would stop. It was the furthest thing from his mind to tell Mr Stanton to get somebody else to progress the claim and his medical condition was becoming quite severe. He got to the situation where, if he had something in front of him, he would see if he could deal with it and if he could he would do so but as soon as he put it down within a couple of minutes he would have forgotten entirely what he was doing. 23 He accepted that Mr Stanton had telephoned him in the latter part of 2007 with some urgency concerning the progress of the case and agreed that he had "fobbed him off". He was not embarrassed by the delay but he knew the job had to be finished, he had undertaken the job and he wanted to finish it. It was not on his mind to ring Mr Stanton and tell him that he was ill and to suggest that Mr Stanton get somebody else to finish the case. He accepted that, if the court had notified him that the matter was going on, he could not have appeared and would have had to pass on the case. Making a telephone call about the case was a state of mind and it was not something he had contemplated during his illness. 24 After refiling the matters in December 2007, the first mention of those matters was in February 2008 and Mr Evans asked for the matters to be joined with the previous applications. Ultimately, that was the purpose of the notice of motion and he was still trying to establish whether he could have the matters joined. Mr Evans denied that, between May 2005 and December 2007, he became aware that the earlier matters had come to an end. He denied that it is why he filed fresh applications in December 2007. When asked if he had regarded the 2004 matters as still being on foot, why had he not simply asked for them to be relisted, Mr Evans replied that he was dealing with the people in the Sydney court and the people in the Newcastle court did not have the same knowledge. It was Mr Evans' practice and his experience with disputes and industrial matters that when there had been no movement in the matter or they had been stood over sine die, he would simply re-apply and that is what he did on this occasion. Mr Evans regarded the documents he filed in 2007 as not being fresh documents because they were the original 2004 applications. He had simply reprinted the 2004 applications and had filed them again and it had not occurred to him until it was put to him in cross-examination that he had filed fresh or new applications in 2007. 25 Mr Evans' treating doctor, Dr Graeme Scheman, filed a short affidavit stating that Mr Evans had been a patient since 2001 and had attended a number of doctors at the practice. He had read the contents of Mr Evans' affidavits in this matter and stated that the medical matters referred to correctly summarised the medical condition that he suffered and that, apart from an incorrect date, the affidavit correctly identified the dates he was prescribed medication and the symptoms from which he suffered as a result of that medication. Initially, Dr Scheman was required for cross-examination but there were difficulties in arranging for the doctor to attend court on the hearing date. Ultimately, counsel for the respondent did not object to Dr Scheman's affidavit being received into evidence and did not require him for cross-examination. 26 In cross-examination, Mr Stanton accepted that he was the contact person for the group of drivers and that he would pass on information to them provided by Mr Evans. It was his expectation that if he did not receive and pass on the information, the other applicants would not receive information about the claim. Mr Stanton said that he kept in touch with Mr Evans between 2005 and 2007 and telephoned him "quite a bit" but was told that everything was under control. Mr Stanton had telephoned Mr Evans between 20 and 30 times during the three-year period and the majority of those calls were initiated by him. There were probably more calls during the latter part of 2007 because he was putting pressure on because the other applicants wanted to know what was happening with the claim. There were times when he called Mr Evans but his calls were not returned and on other occasions he was "fobbed off". Mr Stanton was prepared to accept what he was told over that period of time and he relied on Mr Evans because Mr Evans knew what he was doing. Mr Stanton understood that Mr Evans' work on the spreadsheets was detailed and he had seen that work. It was time consuming and they understood that the claim would take some time before completion. He had no real concern about the matter until 2007. 27 For the respondent, an affidavit was filed by Mrs Fay Miller a director and secretary of the respondent company. Mrs Miller said that the respondent company ceased its haulage operations and rented out its Rutherford depot in 2003. In March 2005, Mr Evans attended the Rutherford office and collected the respondent's wage records for a number of employees. Mrs Miller was aware that the respondent's counsel, Mr Austin, would be overseas at the time of the next mention on 5 April 2005. She discussed this with Mr Evans and he stated that he would go to court and obtain an adjournment to give him time to look at the records. Mrs Miller did not hear from Mr Evans and the company records had not been returned so Mrs Miller contacted Mr Evans on a number of occasions. From telephone records it appeared she had contacted Mr Evans on 11 May 2005, 5 July 2005 and 7 July 2005. She had asked if Mr Evans was finished with the books and if he had prepared his calculations as she had not heard from him. Mr Evans told her that he would return the books as soon as possible but he was still working on them. The last conversation was on 7 July 2005 when Mrs Miller asked what was happening with the matter as she had not heard from Mr Evans. Mr Evans referred to his computer crashing and not knowing how long it would take to repair but he would contact her as soon as possible. Mrs Miller said that Mr Evans made no mention of him being sick or fatigued. 28 Having not heard anything further from Mr Evans after July 2005, Mrs Miller assumed that he had decided not to proceed with the claims. However, just before Christmas 2007, she was served with new applications. In April 2005, money had been set aside from company funds from the sale of the depot to meet part of the applicants' claim in case there was any merit in those claims. The company owed at that time and still owed Mr and Mrs Miller more than the amount set aside. In 2007, Mr and Mrs Miller had the company pay out about half of the money that had been set aside and that money had now been spent. Mrs Miller stated that she had no conversation with any of the applicants between July 2005 and Christmas 2007 that made her think that they were planning to maintain their claims but she did not recall speaking to any of the applicants at all during this period. 29 From cross-examination it became apparent that any disposal of records held by the company did not affect these claims and that the relevant records had been handed over to Mr Evans for the purposes of calculating the claim and were still available. Mrs Miller understood that, if the matter was before the court for adjournment or something of that nature, a lawyer would appear on behalf of the respondent company. The respondent's lawyers would inform her of what happened in court. Mrs Miller rejected the suggestion that she did not have a conversation with Mr Evans about having the matter adjourned at the April mention because the respondent's counsel was absent. She agreed that solicitors had been engaged to represent the company but she could not say whether it was usual for the solicitor to make arrangements with the applicants about adjournments and processes in the court. The respondent's solicitor had not asked her to make any arrangement with Mr Evans because of the absence of the respondent's counsel at the time of the April mention. Mrs Miller did not inform the respondent's solicitors of the arrangement she had made with Mr Evans about the April mention. Mrs Miller could not recall receiving a letter from her solicitors asking her to make arrangements with Mr Evans about the mention. It was put to Mrs Miller that, having engaged a solicitor and counsel, she could be mistaken about the arrangements that she spoke of with Mr Evans for the April mention but Mrs Miller said that she could not remember. Although contacting Mr Evans up to July 2005, Mrs Miller did not ask him or make any enquiries about an adjournment date or what happened at the last adjournment. She could not remember if she asked her solicitor to contact the court to find out about possible adjournment dates. Mrs Miller thought that the matter had gone away so she did not make any enquiries about it. When half the money set aside for the purposes of paying out any judgment in these cases was paid out to Mr and Mrs Miller, Mrs Miller agreed that she had made an assumption that the matter was not proceeding. She accepted that she could have checked with her solicitor or counsel but she did not do so. She would not have asked any of the applicants and had not heard or seen from any of them. DELIBERATION 30 There was no dispute between the parties as to the principles applicable to an application for extension of time to appeal. The relevant considerations are largely gathered in the judgment of the Full Bench in WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299-300: 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; [1964] 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 Cavacuitti v Toyota Motor Corp Aust Ltd (2002) 122 IR 247 the Vice-President, Walton J adopted what was said in Parkes Council and then stated: 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." 43 Accordingly, whilst I shall consider the principles agreed to by the parties and referred to earlier in the decision, in determining the application to extend time I shall ultimately be governed by the requirements of justice in this particular case 31 The above principles have been amplified by Cole J in Technical Team Projects Pty Ltd v Noble Dunn Pty Ltd & ors (1990) 20 NSWLR 221. In that case his Honour applied the following approaches: (a) the applicant has to satisfy the court that justice requires that his default should be overlooked and he must satisfy the court that there is some reasonable kind of explanation or excuse for his neglect of the rules; (b) an extension should only be granted if to refuse it would be unjust; (c) when considering whether justice requires time to be extended the whole of the position of the parties is to be considered, including: (i) that the appeal is not of right; (ii) the grant of extension of time is not futile; (iii) the prejudice that may accrue to the respondent if an extension of time is granted; (iv) whether the party itself has brought about some compliance with the rules; and (d) that the parties are entitled to assume that the litigation will be conducted in accordance with the primary rules imposing time limits. 32 The present case presents a curious combination of circumstances. In this case the extension of time covers a period in excess of three years. It may readily be accepted that some of the principles referred to above are of no immediate relevance: in the circumstances of this case it is entirely artificial to proceed on the basis that the respondent has a vested right to retain the judgment as the evidence demonstrates that, until February 2008, none of the parties were aware that the CIM in May 2005 had closed each of the files relating to the claims by the applicants on the basis that they were "withdrawn". While it is true that the respondents regarded the matter as having been concluded when in 2007 they had paid out to themselves half the monies set aside to meet any potential judgment against the respondent but they took that action without checking with the court, their solicitors, their counsel or the applicants whether in fact the matters had been discontinued. It might be human nature to "let sleeping dogs lie" but that approach can hardly sustain a serious complaint of prejudice to the respondent. This was not a case where the respondent was aware that the court had decided, because of the non-appearance of the parties, that the matters were "withdrawn" and therefore the respondent had no expectations arising from having secured a successful judgment as might occur in the normal course of litigation. The usual principles are based upon a respondent having argued for and being aware of the judgment attained at first instance and having legitimate expectations that, at the expiration of the appeal period, its position had been secured in the absence of an appeal being lodged. There is no basis for applying these considerations in the present case. 33 It can be readily accepted that an extension of time to cover a period in excess of three years is an extraordinary application and one that might not seriously be considered unless a persuasive case was made out by the applicant. However, the length of time, while it is an important factor, it is not, by itself, a disqualifying factor as all the circumstances need to be considered (see R v Brian Michael McCauley (1997) 142 FLR 399 where Levine J was not concerned about a period of three years to file a parity appeal, although a relevant consideration, but was more concerned to establish whether there was injustice warranting intervention by the court). In Wedesweiller and ors v Cole and ors (1982-83) 47 ALR 528, the Federal Court extended the time by 15 months to permit proceedings for review under the Administrative Decisions (Judicial Review) Act 1997 in circumstances where a large number of similar proceedings had been commenced within time and where all the matters arose out the one course of conduct namely, the standing-down of employees by the employer and their claim that they had been improperly stood-down and their salary improperly withheld from them. The time for bringing such an application was within 28 days of the decision challenged. The out of time application covered some further 153 employees from the same department and evidence was given of the difficultly in taking instructions from such a large number of people and the difficulty flowing from individual circumstances that did not permit a test case to be selected to govern all of the aggrieved employees. 34 The respondent department identified prejudice of two distinct kinds. Firstly, it said the re-awakening of the matter would have an adverse effect on good industrial relations that presently existed in the department and secondly, there was a possibility that relevant evidence may have been lost to the respondents because various officers in the department now either had no recollection of the events in question or had a much diminished recollection because of the lapse in time. Sheppard J in the Federal Court was more concerned with the second part of the prejudice claimed and stated that he also had to bear in mind that there were departmental records available from which potential witnesses could refresh their recollections and it was human experience that many persons called upon to recall past events were able to remember a good deal if their minds were properly applied to the problem. It was common experience, in any event, that evidence was given in many jurisdictions of events which took place many years before. While the fragility of human recollection was well known, generally speaking, reliable evidence of events long since passed was given daily in the courts of the country. Ultimately, his Honour was persuaded that the very lengthy delay in bringing these cases was not fatal because of the large number of closely related cases already in the list that were well advanced in their preparation for hearing. In agreeing to extend the time in the particular circumstances of this case, his Honour noted the discretion to extend time was invested in the court in completely unrestricted terms and no indication was given of the matters that the court was to consider: the discretion was therefore a very wide one. There would be cases that would be decided upon considerations that affect only the immediate parties, such as whether the delay had been satisfactorily explained, the prejudice which may be caused to an applicant by refusal of the application, prejudice that may be suffered by the government or a particular department if the application was granted and what the justice of the case required. In other cases, other considerations would be involved. 35 Sheppard J then referred to a particular approach that was considered to be deserving of comment (at 532): In Duff v Freijah (1982) 43 ALR at 485 , Northrop J said It is well established that delays by a solicitor are visited upon the client when those delays are relevant to limitation periods or matters involving want of prosecution. That is not, with great respect, a proposition which I would accept as having general application. It will be so in some cases, but it may not be so in others. It can be no general rule. In this regard I refer to what was said by the High Court in Sophorn v Nominal Defendant (1967) 96 CLR 469 with regard to a view of the Prothonotary of the Supreme Court of New South Wales to the contrary of that propounded by Northrop J. The court said (at 474-5): When the application was before the Prothonotary he appears to have adopted the view that a fixed general rule existed that when the failure to give notice within time could not be ascribed to the fault of the claimant but was attributable entirely to the fault on the part of his solicitor, that necessarily amounted to sufficient cause within the meaning of s 30(2)(b)(ii). Such a view is opposed to the principle laid down by Walsh J in Martin v Nominal Defendant (1954) 74 WN(NSW) 121 and it gained no support in the Full Court in the present case. No one, of course, doubts that such a consideration as the blamelessness of the claimant and the responsibility of the solicitor is very material. But every case must be determined on its own facts. Fixed formulae cannot be substituted for the wide words of the sub-section. 36 There are certain parallels between the present case and that dealt with by the Federal Court in Wedesweiller but they are by no means exactly the same type of case. In the present matters, the claims filed in 2007 allow consideration of the employment between 2001 and 2003 when the respondent ceased trading. If the extension of time is allowed and the appeal succeeds, the applicants will be able to pursue claims going back to 1998. The same issue will arise in both sets of proceedings. The only matter to vary will be the actual amount claimed being a reflection of the various hours worked and kilometres travelled from day to day during the periods covered by the claim. Unlike Wedesweiller, ultimately there is no issue that the relevant evidence has been lost to the respondent although it was initially thought that was the case. At the conclusion of the evidence, it was established that, for both periods, Mr Evans had been given the records of the respondent to make his calculations of the claim for each applicant and those records were available to the respondent. Thus, a very significant question of prejudice to the respondent does not arise in this application. In addition, it might be observed that in Wedesweiller the individual circumstances of each stand down were critical, but in the present case the essential information is documentary. 37 The respondent's case substantially, therefore, concentrated upon the conduct of Mr Evans in these proceedings. It was put firstly that the record in relation to Mr Featherstone's case by the placement of a tick in the appropriate box for identifying the person appearing for the applicant was indicative of the fact that Mr Evans was present at the April 2005 mention, as he had indicated to Mrs Miller, and that he had been instructed by the CIM to advise the respondent of the May mention and the fact that the matter would be concluded if the parties did not appear. I cannot accept that proposition. The records of the Newcastle court are entirely inadequate to establish that proposition and although Mr Evans' illness, amongst other things, affected his memory I accept his evidence that he did not appear at either the April or May 2005 mentions. His continued work on the calculations, albeit in a piecemeal fashion given his disability, is only explicable on the basis that he understood that the claim was still on foot: if Mr Evans had appeared at the April mention and was aware that if no one appeared on the May mention that the matters would be concluded, it would be an extraordinary thing for him to continue with tedious calculations up until 2007, given the debilitating nature of his illness. No objection was taken to Mr Evans' evidence that his enquiries of the Newcastle court staff had revealed that there were no appearances at the April and May 2005 hearings. It is of significance that no other court record relating to other claimants contained these indications, ticks or notations. In particular, only one bench sheet carried the note "applicant to inform respondent" but even in this case there is no notation to the effect that, if the parties did not appear on the next mention, the matter would be concluded. 38 The second line of argument, and the more substantial argument, was directed to the fact that Mr Evans had been sufficiently active between 2005 and 2007 to have taken the simple step of informing Mr Stanton that he was too ill to proceed with the case and to have it dealt with by somebody else even though he was suffering from a debilitating illness. At first blush, there is an attraction about this argument but Mr Evans' description of his illness, supported by a treating medical practitioner, shows that it was not only a physical disability but one that affected his mind and his concentration. In simple terms, Mr Evans could not bring himself to think about these matters unless something occurred to require him to give it attention and that did not occur between 2005 and 2007. Much like the respondent who was prepared to allow "sleeping dogs lie", in his condition Mr Evans may well have been content not to be bothered by these applications in the CIM's court until called upon to do so. It is a relevant consideration to the overall justice of the case that the respondent took no action to check with the court or their legal advisers as to the state of play, nor did the respondent move the Court to strike out the claims for want of prosecution. Up until 2007, the respondent thought the case was on foot until deciding that it was either not being pressed or was somehow concluded and Mr and Mrs Miller obtained access to half the money kept aside to meet any liability arising from the case. If the respondent believed that the matter was concluded or not being pressed, it is a telling point that it nevertheless paid out to Mr and Mrs Miller only half the money held aside to meet any liability arising from the claims. Contrary to the submissions for the respondent, taking these matters into account in determining the overall justice of the case does not reverse the onus otherwise lying with the applicants to make out a case for an extension of time. 39 The evidence does not show any culpable lack of diligence on behalf of the individual applicants. Mr Stanton was the contact point and he made 20 or 30 telephone calls to Mr Evans between 2005 and 2007 in attempting to ascertain the progress of the matters. Nothing was said to him that would put him on notice either that the claims had been concluded by the CIM or that Mr Evans' health was such that he was not able to progress the case in a timely manner. I am unable, therefore, to conclude that Mr Stanton representing the applicants or any of the individual applicants failed to promptly act in relation to their claim or that they share any culpability for the delay in the proceedings. 40 The position with Mr Evans is more difficult. It would have been of assistance to have more detailed medical evidence as to the nature of his illness and how it may have affected him, especially in relation to the relatively simple task of telephoning Mr Stanton and informing him that he was too ill to proceed with the case and to arrange for other representation. The short medical evidence, however, stands unchallenged and confirms Mr Evans' description of his illness and its symptoms and effects. His own evidence was that, not only was he physically debilitated but his mind was not functioning properly and that he had to be placed in a position of having to make a decision before, effectively, he attempted to do anything. Because there was no notice from the court or the respondent about any action on the matter, he was simply never placed in the position of having to make a decision and felt that he was still contributing by piecemeal work he was able to perform in completing the calculations for the claim. Nevertheless, it is difficult to understand how for a period of nearly three years, an experienced industrial consultant could have allowed the position to drift. During this period it might have occurred to him that it was a very long time since the court or the respondent had made any contact about the claims and that something should be done to regularise the process. Against these understandable concerns about his evidence, the medical evidence is supportive of Mr Evans' own evidence and on balance the Court accepts what he says about his incapacity to take any action during this period. 41 There were, however, some unsatisfactory aspects of Mr Evans' evidence. It appears, firstly, that he did perform work while being certified as totally unfit for work although he speaks of his condition improving. Secondly, the explanation for the refiling of the 2004 claims in 2007, is, to say the least curious. He adopted a personal practice that is at odds with the usual practice of industrials tribunals, let alone courts. While the Court, on balance, accepts Mr Evans' explanations for these matters, if his evidence was rejected the Court would, nevertheless, be required to consider the broader issue of doing justice between the parties. 42 If the view was ultimately taken that Mr Evans, although suffering a debilitating illness, was sufficiently fit to take the step of informing the applicants that they needed to engage new advisors in order to progress the case, none of the applicants were aware of that situation and any culpability would lie solely with Mr Evans. Having regard to the authorities discussed by Sheppard J in Wedesweiller, the circumstances disclosed in this case would warrant a conclusion that the applicants should not be penalised for the omissions and failures of their advocate and agent, especially in circumstances where the respondent is still in a position to defend the claims and has the necessary records available to defend the claims and will be required to defend at least part of the claims no matter what occurs in relation to the present application. In all the circumstances, the prejudice to the respondent can be properly described as slight. The prejudice to the applicants, however, is considerable: although not presently capable of precise calculation, their claims would be effectively halved.

John Ninness and ors v Miller Bulk Haulage Farming Co Pty Ltd

At a glance

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Judgment (19 paragraphs)

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Cases Cited (13)

Cited By (2)