Kagan v Primus Telecommunications

Kagan v Primus Telecommunications - [2000] NSWIRComm 101 - NSWIRComm 2000 case summary — Zoe

[11]

… These things do take time and, as I indicated, it's not a question of an applicant deciding: yes, I am going to appeal the next day. It is just foolish to be told of twenty-one days and the applicant decides. One has to look at the merits and consider the evidence that was given and further to consider all aspects of costs, et cetera, that will be involved; and having pursued that as quickly as possible, after a decision was made the application has been filed. As I say, it's only a matter of five days, and including in that is a weekend, so a loss of three business days. 7 I have to say, viewed in that way, that I have difficulty in accepting a case has been made out to justify extending time to appeal. Given the matter was seen by the applicant as important one would think he would have acted with expedition. After all, for the purpose of the proper administration of justice time limits are set for the completion of litigation and parties, particularly those succeeding, are entitled to rely on those established time limits within which to order their positions. 8 Although the appeal here was but 5 days out of time, the applicant at the first instance proceedings was represented by counsel and it is somewhat difficult to imagine legal advice as to costs and his pre-occupation in pursuing alternative employment opportunities would have precluded the timely filing of an appeal. Also, of course, the applicant could have, but did not, sought further time to appeal before the 21-day limitation period had expired. Nevertheless, and making full allowance for his personal position, I note from his affidavit that the applicant is a divorced father of two children aged 6 years and 8 years and he shares 50 per cent residency with the children's mother. 9 If that was all that was involved, then, in my view, the following submission by Mr B K B Cross , counsel for the respondent, would be persuasive in requiring the refusal of the present application to extend time to bring a competent appeal : The Applicant does not claim to be unaware of the decision of Commissioner Neal or the time for appeal, and the prospect of an appeal were actually being considered. The time limit for appeal was apparently disregarded while the Applicant addressed other matters. There is no explanation of why an application to extend time to appeal was not made prior to the time for appeal expiring despite such an application being contemplated by sub-section 189(2) of the Act.

[13]

The Respondent, however, will suffer prejudice if the extension of time is granted. It will suffer the cost and inconvenience of the litigation not brought within the limitation period prescribed. … 10 The principles to be applied in considering the present issue are well settled. In Skelly v Prouds Jewellers Pty Ltd [1994] 53 IR 3, a Full Bench of the Commission constituted under the former Industrial Relations Act 1991 said at (p 6) : The Commission's rules require an appeal to be filed within 28 days of a decision. (I interpolate that under s189 of the present Act the period is 21 days) There is a public interest in the prompt institution and prosecution of litigation before the Commission. Indeed the Act is designed with this as a feature. It follows that a successful litigant before the Commission is generally entitled to proceed on the basis that a decision in its favour will stand, in the absence of an appeal being filed within the time prescribed. There is a discretion in the Commission to 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 of the circumstances before it. 11 Those principles were relied upon and affirmed by Walton J, Vice-President in Brady v Kennedy t/as "Sardines " (1999) 91 IR 258 at 263-264. His Honour also cited the propositions involved in this respect as collected in and summarised by a Full Bench of the Court ( Bauer , Hungerford and Schmidt JJ) in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299-301. They were referred to and followed by me recently in Van Rooy Machinery Pty Ltd v WorkCover Authority of New South Wales (Inspector Wolf) [2000] NSWIRComm 48 at paras 16 and 17. As I observed, however, in Van Rooy Machinery (at para 33) : Essentially, it seems to me, in deciding whether or not to grant an application to extend time to appeal comes down to the proposition of doing justice between the parties and ensuring the proper administration of justice. 12 A search for justice in the present case takes one to the grounds of appeal set out in the notice filed, as follows: 1. The Commissioner erred in finding that the value of business usage of the Appellant's motor vehicle should not be deducted in the calculation of " remuneration" for the purposes of sub-section 83(1)(b) of the said Act.

[30]

CROSS: And part of the basis of that evidence was the direction that the applicant provides information, particularly this tax form. Your Honour, I am just trying to draw your attention to the relevance of that taxation. 14 In the result, I saw both counsel in chambers in order to provide an opportunity to see whether this matter could, in some mutually satisfactory way, be compromised. Even at this late stage of the contested litigation, I am firmly of the view that if circumstances permit then parties should be afforded such an opportunity so as to resolve their differences in a cost effective and timely way. On resumption, and by arrangement with counsel, I adjourned the hearing until today to enable them to obtain instructions. Unfortunately, no agreement had been reached and I proceeded to judgment accordingly. 15 I am satisfied that this matter seems to raise a real and important question as to the meaning and operation of the word "remuneration" in s 83 of the Industrial Relations Act in the regular determination of unfair dismissal claims. It may well be, of course, that a Full Bench in the hearing of any appeal would disallow leave to appeal, but, I think, the question raised involves serious and practical issues which, at the least, are well arguable in that respect. That argument, in the interests of justice between the present parties and the orderly disposition of the many unfair dismissal claims which come before the Commission involving the level of an employee's remuneration for jurisdictional purposes, should be heard. 16 Shortly stated, the question raised, as I see it, is whether in calculating an employee's "remuneration", for the purposes of s 83(1)(b) of the Industrial Relations Act to determine if the statutory provisions apply to the dismissal, an amount included in the remuneration paid for business expenses (here, car usage) and expended for such expenses may be deducted to obtain the relevant remuneration level. 17 I am of the view, on balance in all the circumstances but not without some hesitation, that a delay in filing the appeal of 5 days for the reasons stated should not deny the applicant the opportunity to put what seems to be, at least logically, a well arguable case. I think that a just result between the parties would warrant an extension of time to appeal. 18 Accordingly, I order that time be extended to file the application for leave to appeal and appeal herein until 24 May 2000 so as to make the present process competent.

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