I point out that in that cross-examination of Ms Smith the questions were directed to an extended period of time to pay the moneys the subject of her Worship's order. They did not extend in any way to the question of an appeal.
14 The principles applicable in considering an application to extend time to appeal are, in my view, well settled by the authorities. In Van Rooy Machinery Pty Ltd v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436 at pp 438-439 in [16] and [17], I endeavoured to set out those principles by reference to cases such as the Full Bench decisions in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at pp 5-6 and WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at pp 299-301 and the decision of Wright J, President, in LEP International Pty Ltd v Caine (2000) 97 IR 35 at pp 41-42. The approach so followed was approved by a Full Bench ( Wright J, President, Walton J, Vice-President and Glynn J) recently in De Simone Consulting Pty Ltd v Ison (No 2) (2000) NSWIRCom 269 at [3] and [4]. I have had regard to the principles so stated in considering the present matter.
15 Of particular relevance as to a satisfactory explanation being required for the delay in filing any appeal, I refer as apt to the case here what was said by Wright J, President in De Luxe Cab Co Ltd v Grenside (1999) 92 IR 384 at p 390, as follows:
As earlier noted in its judgment in Parkes Council, the Full Bench cited with approval the judgment of McHugh J in the High Court in Gallo v Dawson . His Honour, at 459 of the report, in turn cited with approval the following passage from the advice of the Judicial Committee in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12:
"The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion."
In my view, the material filed by the applicant fails, on any reasonable analysis of it, to provide any proper explanation of the failure to file the appeal within the time required. Although the factual circumstances are significantly different, the conclusion reached by the Full Bench in Parkes Council (at 304), in the following terms aptly describes the evidence relied upon here: "the evidence adduced by the applicant offered no adequate explanation why the notice of appeal was not filed in a regular manner. …"
16 I am reminded too in this respect of observations I made in Van Rooy Machinery (97 IR at p 442 in [33]), namely:
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.
17 That synthesis of the position was cited with approval by Wright J, President in Legge v Coffey Engineering Pty Ltd (2000) NSWIRCom 278 at [23].
18 Here, the reason advanced by Mr Kok for the delay was the advice he said Ms Smith gave him following the hearing before her Worship on 6 November 1998 that there was no right of appeal. I have set out earlier the salient pieces of the evidence concerning this aspect. I have to conclude, having in mind my earlier stated criticisms of it, that I find as unsatisfactory the evidence given by Mr Kok. It was inconsistent and lacked credibility. I gained the impression from his oral evidence that he was prepared to answer questions in a manner supportive of his case regardless of his earlier affidavit evidence - his explanation for the delay overall simply did not fit the period of the delay of about 23 months. The blunt statement made by Mr Kok that the fine was not paid after it was so ordered on 6 November 1998, and that he refused to pay, speaks much of his approach to this issue. That is particularly so having regard to his explanation that it was not until the first half of 2000 that enquiries by him of his lawyer customers following the bankruptcy notices led to knowledge that there was a right to appeal. I am not at all persuaded that Mr Kok ever intended to satisfy the orders against him. The bankruptcy notices, I infer, brought the realisation to Mr Kok that the respondent would pursue payment of the moneys due and that he should do something to avoid or forestall that action. The present application to extend time to appeal was that "something". I have to conclude, therefore, that I do not accept his evidence as establishing a proper and reasonable explanation for the delay; indeed, I consider the present application is but a further step in his attempt to avoid payment of the moneys ordered by the Local Court on 6 November 1998.
19 On the other hand, I accept as understandable and cogent the evidence of Ms Smith. I believe her evidence that she did not tell Mr Kok on 6 November 1998 he did not have a right of appeal.
20 My conclusions on the evidence before me as to Mr Kok's motivation in bringing this application, particularly having regard to the inordinate delay involved of about 23 months, receive support by reference to his conduct in the proceedings before her Worship. In the decision given on penalty her Worship said:
Nevertheless I have regard to the history of this matter which as I have found has not been without its attempts on the part of the defendants as it were to almost filibuster their way through numerous adjournments for a whole variety of reasons and today's most recent application having been denied them.