For the reasons set out above I am not satisfied that Ms Kumari has demonstrated that the reasons for delay were reasonable or that she has any reasonable prospects of success on the appeal.
For those reasons, I do not allow Ms Kumari further time to pursue her appeal.
[2]
The application to grant an extension of time to file the appeal is refused.
[3]
16 May 2025 - Typographical error in the word "Ex Tempore" corrected.
Parties
Applicant/Plaintiff:
Kumari
Respondent/Defendant:
State of New South Wales, NSW Treasury [2025] NSWIRComm 13
Legislation Cited (1)
Relations Act 1996
Cases Cited (4)
The discretion provided by s 189 of the Act is given for the purpose of enabling justice among the parties. Granting an extension of time is not an automatic right: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd[1978] VicRp 27; [1978] VR 257 at 262.
The limitation period represents the legislature's judgement that it is in the public interest that such an action be litigated promptly and that a successful litigant can proceed on the basis that a decision in its favour will stand in the absence of an appeal being filed within the time prescribed. As such, it is for Ms Kumari to show that her case is a justifiable exception to the usual rule.
The principles to be applied in an application for the extension of time for leave to appeal and appeal were set down in the case of Workcover Authority of New South Wales(Inspector Salmon and Parkes Council)(1996) 70 IR 298 and Carvacuiti v Toyota Motor Corporation Australia Ltd(2002) 122 IR 247; [2002] NSWIRComm 341 at [40]- [43].
More recently in Cachuela v Commissioner of Police[2025] NSWIRComm 1, the Commission determined that without limiting the considerations that may be relevant in a particular case, when considering the question of extension of time to appeal, regard must be had to:
In considering an application for an extension of time in which to file an appeal, it is necessary to consider the prospects of the applicant succeeding in the appeal: S_mith v Industrial Relations Secretary in respect of Local Land Services (No 3)_ [2024] NSWIRComm 1028 at [78].
This requires the Commission to determine the likelihood of Ms Kumari obtaining leave to appeal by virtue of s 188 of the Industrial Relations Act, including the prospect of a finding that the issue is of such importance that not granting leave would be against the public interest.
In this regard, it would generally suffice for an appellant to demonstrate a fairly arguable case. Where the appellant cannot demonstrate that there will not be significant prejudice to the respondent or provide a reasonable explanation for the delay, the appellant may be required to show that the proposed appeal has more than merely arguable prospects of success: Renshaw v New South Wales Lotteries Corporation Pty Ltd[2021] NSWCA 41 at [23].
This is an application for leave to appeal and appeal from an interlocutory decision. The Commission is ordinarily slow to grant leave to appeal interlocutory decisions.
Ms Kumari's grounds of appeal, as found in the application, assert high-level jurisdictional errors, errors of factual finding and improper treatment of evidence. It is unclear from the application itself how these errors relate to the Decision of Commissioner McDonald as the application as drafted does not attempt to identify any particular aspects of the Decision that are said to be in error.
The notice of motion that Commissioner McDonald dismissed proceeded on the basis that she had made a direction for the respondent to respond to Ms Kumari's communications which had not been complied with. In the Decision below, Commissioner McDonald found she had not made a direction but had merely made a suggestion for the respondent to respond to correspondence.
As to that, Ms Kumari has not pointed to any evidence that could arguably lead to the conclusion that the Commission had issued a direction for the respondent to respond to Ms Kumari.
When I drew this to the attention of Mr Thakur, he relied on two parts of the transcript, being transcript annexed to Exhibit 1 which is the Affidavit of Ms Kumari dated 13 May 2025. Taking the two pieces of transcript in chronological order, the first is an extract from the transcript of 4 April 2025, in which Mr Thakur identified that Commissioner McDonald said words to the effect that a direction had been made. Mr Thakur drew my attention to page three of the transcript, line 20, where Commissioner McDonald said as follows: