LEP International Pty Limited v Roger Caine

Industrial Relations Act 1996 s 179 s 188 s 189 s 190 LEGISLATION CITED : Industrial Relations Commission Rules 1996 (NSW) r 4 r 42 r 89(5) Supreme Court Rules 1970 (NSW) Pt 40 r 3 Ah Toy v Registrar of Companies for the Northern Territory (1985) 61 ALR 583 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 BNY Australia Limited v James (1992) 40 IR 1 Brady v Kennedy t/as "Sardines" (1999) 91 IR 258 Bromley v Housing Commission of New South Wales (1985) 3 NSWLR 407 Brookes v Watling (1995) 61 IR 163 Cole v Director-General of Department of Youth and Community Services (1986) 7 NSWLR 541 (1986) 15 IR 439 Commonwealth v Bank of N.S.W. (1949) 79 CLR 497 Daley v New South Wales Rugby League Limited (1995) 78 IR 247 CASES CITED : De Luxe Cab Company Limited (formerly known as Deluxe Red and Yellow Cabs Cooperative Trading Society Limited) v Grenside (unreported, Wright J President, 5 January 1999) Famonselle Pty Limited v Nairne (unreported, Hungerford J, 22 June 1990) Gallo v Dawson (1990) 93 ALR 479. Hannprint Pty Limited v Mita Copiers (Australia) Pty Limited (1996) 137 ALR 701 In re Dispute - Upper Hunter County Council Re Grading (No. 1) [1973] AR (NSW) 361 New South Wales Teachers' Federation v New South Wales Office of the Board of Studies [2000] NSWIRComm 1 Nicoletti v Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (1998) 86 IR 97 Nutshack Franchise Pty Limited v Smith (1999) 90 IR 355 Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 Virtue v New South Wales Department of Education and Training (unreported, Wright J President, 15 October 1999) WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 HEARING DATES: 02/10/2000; 02/11/2000 EXTEMPORE JUDGMENT DATE : 02/11/2000

APPELLANT Mr A Britt of Counsel Baker & McKenzie, Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr C Barton, Solicitor Freehill Hollingdale & Page

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

LEP INTERNATIONAL PTY LIMITED v ROGER CAINE Application for leave to appeal and appeal against a decision of Justice Glynn given on 17 November 1999 in Matter No. IRC98/2441.

1 On 6 December 1999 LEP International Pty Limited filed, or purported to file, an application for leave to appeal, an appeal and an application for a stay in relation to the decision of Glynn J in Matter No. IRC98/2441 of 21 October 1999 and as to the orders made by her Honour on 17 November 1999. I shall refer to that company as "the appellant". On 8 December, the appellant filed a Notice of Motion seeking an order extending time to appeal until that date. The grounds advanced in the Notice of Motion were framed in the alternative. It was contended primarily that the document filed on 6 December was filed within 21 days of the making of the orders by her Honour. Alternatively, it was contended that the period of extension of time sought was "relevantly modest" and inferentially that the Court should exercise its discretion to grant the extension.

2 Roger Caine, the respondent to both the purported Notice of Appeal and to the motion, opposes the application to extend time and submits that the Notice of Appeal was filed outside the relevant time limitations provided by the Industrial Relations Act 1996 (the Act) and the Industrial Relations Commission Rules 1996 (the Rules). This judgment deals with both of these issues.

3 It is necessary to set out briefly the factual circumstances of the matter. On 21 October 1999, Glynn J delivered judgment in the proceedings which had been commenced by the respondent against the appellant. Her Honour's judgment concluded at pages 35 - 36 thereof as follows: Pursuant to sub-ss (1), (3) and (5) of s 106 of the 1996 Act, the Commission in Court Session orders that the contract of employment be varied as from 1 January 1998 to include the following provisions: · the term of notice of termination, or of payment in lieu, shall be nine months; · the applicant shall receive thirty three weeks redundancy payments; · all payments are to be based on the applicant's full remuneration package amount of $96,000; · all payments already made on termination to the applicant are to be recalculated on the full remuneration package amount, and the difference between that amount and the moneys already paid, be paid to the applicant; · interest shall be paid at the appropriate Supreme Court scale as from 28 February 1998. · Credit shall be given for those payments already made by the respondent in relation to notice and redundancy. In making the above orders I take into account such matters as non transferable credits lost by the applicant. The applicant, in consultation with the respondent, is, within 14 days, to prepare, file and serve formal minutes of orders giving effect to my decision. The parties are to confer as to costs. If agreement cannot be reached, the Commission is to be advised, also within 14 days, in which case the matter may be relisted for further short submissions.

4 In accordance with the penultimate paragraph of her Honour's judgment the parties conferred and reached agreement as to proposed orders giving effect to her Honour's judgment. These orders were signed by her Honour on 17 November 1999 and were in the following terms: In accordance with the judgment of Justice Glynn dated 21 October 1999, the Commission in Court Session orders: (a) that the Applicant's contract of employment with the Respondent be varied as from 1 January 1998 by including the following provisions: (1) a term of notice of termination or of payment in lieu of notice of nine months based on the full remuneration package amount of $96,000; (2) a redundancy payment of 33 weeks based on the full remuneration package amount of $96,000; (3) payments already made to the Applicant on termination of employment be recalculated on the full remuneration package amount of $96,000 and the difference between the two amounts be paid; (4) interest at the appropriate Supreme Court scale from 28 February 1998; and (5) costs. (b) that the Respondent makes the following payments to the Applicant: (1) a payment in lieu of notice of $64,750.00 ($72,000.00 less $7,250 already paid); (2) a redundancy payment of $42,173.00 ($60,923.00 less $18,750.00 already paid); (3) a payment for annual leave of $4,797.41; (4) a payment for long service leave of $2,260.38; (5) interest calculated from 28 February 1998 until 21 October 1999 of $18,118.25; (6) interest calculated at the Supreme Court scale of 9.5% from 21 October 1999 up to the date the payments are made. (c) that the Respondent makes the payments referred to in paragraph (b) to the Applicant within 28 days of this Order being made. (d) that the Respondent shall pay the Applicant's costs as agreed or assessed.

5 On 2 December 1999 the appellant instructed its solicitors to seek leave to appeal, and to appeal, against her Honour's decision and orders; and, as earlier noted, relevant documentation was filed with the Registry on 6 December. If one calculates the time within which an appeal is to be lodged from the date of her Honour's orders, the documentation was lodged 2 days prior to the time for appeal expired. On the other hand, if time for lodging an appeal runs from the date of delivery of her Honour's judgment, then the appeal was lodged 25 days out of time.

6 In support of its primary application, the appellant relies upon s 189 of the Act, Rule 42 and the definitions of "date of decision" and "decision" in Rule 4. It is convenient to set out the terms of those provisions. Section 189 is in the following terms: (1) An appeal to a Full Bench of the Commission under this Part must be made within 21 days of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows. (2) Further time may be allowed, either before or after the end of that 21 day period.

7 Rule 42 provides: 42(1) [Time Limit for Appeal] Unless otherwise provided, an appeal must be made within 21 days after the date of the decision appealed against (or such further time as the Commission allows, before or after the expiration of that period). 42(2) [Application for Extension of Time] An application to extend time to appeal may be included in the notice of appeal or may be made by separate notice of motion. and the relevant definitions relied upon from Rule 4 are in the following terms: "date of decision", in relation to determining the period within which an appeal may be made, means the date on which the decision is announced, or where it is indicated that a written decision or reasons for decision are to be issued, the date when the written decision or reasons are made available, whichever is the later; "decision" includes an award, order, direction, contract determination or ruling.

8 The primary submission of the appellant is that the time for lodging the appeal does not run until the date the formal orders were made by her Honour on 17 November 1999. The relevant time is not the date of her Honour's judgment in October and the time within which this appeal should have been filed does not run from that date nor does it conclude 21 days thereafter.

9 Detailed reference was made to authority on behalf of the appellant. On the basis of that authority, it was submitted that her Honour's judgment did not become a "decision" until there was a decision of the suit by the Court and the suit is not finally determined until the making of orders or the disposal of the proceedings. Further, the "decision" for the purposes of r 4 means the ultimate or operative determination of the matter; the judgment of 21 October 1999 was incomplete without the making of orders and it is necessary, on appeal, for there to be final orders so that the exact effect of the decision can be gauged and legally tested. The judgment of her Honour envisaged the making of orders following the judgment but allowed scope for the parties to be heard on aspects of the proposed orders if agreement could not be reached (see page 36 of the judgment). Accordingly, the judgment did not announce the "decision" since it did not vary the contract under consideration in the proceedings and did not finally dispose of all matters between the parties. Further, proceedings under s 106 of the Act are not finally concluded until the making of the orders by the Court.

10 In elaboration of its alternative submission it was accepted that an extension of time is not automatic but the relevant discretion should be exercised to do justice between the parties and, in any event, the appellant is not required to demonstrate "special circumstances" to obtain an extension of time. Both s 189 and r 42 confer a wide discretion on the Commission to extend time; the period required for an extension is "relevantly modest" and the failure of the Commission to extend time will work an injustice upon the appellant particularly where, as here, the appellant has a satisfactory reason to explain the delay in commencing the appeal and the appellant has a reasonable prospect of succeeding on the appeal and the extension of time would not cause an injustice to the respondent.

11 I will return later to discuss the evidence of Mr Dunphy and the submissions of the parties as to the circumstances of the late, or possibly late, filing of the Notice of Appeal and the related issue as to the strength of the appellant's case.

12 In opposing the appellant's contentions that its appeal is in time and that, in the alternative, an extension of time should be granted, the respondent also makes detailed reference to relevant authorities. An important ingredient of its argument is the contention that Glynn J handed down her decision with respect to the respondent's claim for relief on 21 October 1999 and ordered that the contract of employment be varied in the terms set out in the judgment. The parties were directed to prepare formal Minutes of Orders giving effect to her Honour's decision and that the parties reached agreement on 11 November 1999 on the form of Minutes of Orders for the purposes of the judgment delivered on 21 October 1999.

13 Both the Act and the Rules in, respectively, s 189 and r 42, clearly state that an appeal must be made within 21 days after the date of the decision appealed against. That date is 21 October last year and it is to be observed that that was the date when the decision was announced and written reasons for it were provided to the parties. Accordingly, the respondent submits the time for lodging an appeal commenced to run from 21 October and the last day for making an appeal within the time stipulated was 11 November 1999. The application for leave to appeal was filed on 6 December which was 25 days late. Accordingly, the appellant can only proceed with the appeal if the Commission grants the appellant further time in which to file the appeal in accordance with s 189.

14 As to the appellant's alternative submission, the respondent submits that the relevant principles for the granting of an extension of time in which to appeal are set out in the decision of the Full Commission of the former Commission in Brookes v Watling (1995) 61 IR 163 at 166 - 167; a decision which, in turn, cites and relies upon the decision in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 5 - 6 and the judgment of McHugh J in the High Court in Gallo v Dawson (1990) 93 ALR 479.

15 In reliance upon those decisions, the respondent submits that the relevant matters for the Commission to take into account in determining whether or not to grant an extension of time are the reasons for the failure to file the appeal within time; the prospects of the appellant succeeding on appeal, including the prospects of the applicant obtaining leave to appeal; the history of the matter and the injustice to the respondent if the extension is granted. It is submitted that on a proper analysis of those considerations, the appellant does not have an adequate explanation for its failure to appeal within time. Further, bearing in mind that the appellant must obtain leave to appeal pursuant to s 188 of the Act, and the criteria upon which leave is to be considered, the matter could not be considered to be one where there are anything other than limited prospects of obtaining leave to appeal, or succeeding in relation to the appeal itself. It is not as if there is a reasonable basis on which the appellant can submit that her Honour made a legal error or acted upon wrong principle, or committed other appealable error in terms of the applicable principles. Accordingly, the appellant has little or no prospects of persuading a Full Bench that her Honour's discretion mis-carried. Further and finally, the appellant could not assert that it would suffer an injustice if it was not able to gain an extension of time within which to appeal.

16 Notwithstanding the detail and complexity of the most helpfully made submissions by Mr Britt of counsel for the appellant and Mr Barton, solicitor, for the respondent, I nevertheless consider that it is appropriate to deal with this matter on an extempore basis today.

17 In the decision I delivered last week in New South Wales Teachers' Federation v New South Wales Office of the Board of Studies [2000] NSWIRComm 1 at 9 and following, I held that the "drafter" of r 42 did not appear to appreciate that the relevant time for lodging an appeal was specified in s 189 of the Act. Upon an analysis of those provisions, I concluded that the time for lodging an appeal was laid down by s 189 and not r 42 and that, in particular, r 42(1) had no relevant practical effect. Nothing has been put to me in these proceedings which has persuaded me that that view was incorrect. Accordingly, I proceed on the basis that the provision which I need to consider in the present proceedings is s 189 and r 42 has no present relevance.

18 The question then arises for consideration is the meaning that should be given to the word "decision" in s 189(1) of the Act and consequently the time or date of the decision for the purposes of these proceedings. It appears that there has been no decision on that important question since the Act came into force in September 1996.

19 As earlier observed, the parties have cited a wealth of authority on the meaning of the word "decision". However, much of the authority as to that expression depends upon a variety of different statutory contexts and the task here is to interpret the present statutory provision in its own context and in the light of the significance of the statutory provision in which the relevant word appears. Clearly, I must be mindful of the important role of the appeal process in the functioning of the Commission under the Act and I must be mindful of the purposes and objects of the Act generally.

20 Inevitably the question I have to consider is the construction of s 189, and the relevant aspects thereof, in context and in the light of those considerations. Nevertheless, there are some general principles which are applicable. For example, it follows from the observations of Kirby P, when President of the Court of Appeal, in Cole v Director-General of Department of Youth and Community Services (1986) 7 NSWLR 541 at 543; (1986) 15 IR 439 at 440, that rights of appeal are generally to be considered as conferring a beneficial right which is not to be construed narrowly or artificially confined. Similarly, Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335 - 336 said: The fact that the Administrative Decisions (Judicial Review) Act 1977 is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word "decision".

21 When one takes into account the fact that the term "decision" in s 189(1) refers both to decisions of a court (namely the Commission in Court Session) and those of an industrial tribunal (that is the Commission sitting not as the Court Session) and to decisions in proceedings ranging from those of a traditional judicial nature to those of an arbitral kind, the approach of Mason CJ would indicate that the term should be given a broad rather than a narrow construction. Although there are many decisions on this issue (see, for example, Nicoletti v Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (1998) 86 IR 97 at 98 and Australian Broadcasting Tribunal v Bond at 335 - 338) such authorities inevitably involve construction of the particular statutory provisions being considered by the court. Further, it is not unusual in industrial proceedings, where the decision made at first instance is disputed and likely to be subject to appeal by a party that it be necessary and appropriate "for the preparation of a final order or award … so that the exact effect of the decision can be gauged and its legality tested": In re Dispute - Upper Hunter County Council Re Grading (No. 1) [1973] AR (NSW) 361 at 364. The dichotomy between decisions of a court or judicial body and those of an administrative tribunal which, for the purposes of this analysis, would include an industrial tribunal or arbitral body, is usefully discussed by Mason CJ in a judgment already referred to, Australian Broadcasting Tribunal v Bond at 335 and following.

22 I have already referred to his Honour's analysis of decisions of non judicial bodies; I should also add reference to that part of his Honour's discussion at 335 at which he indicates his preliminary but general view that a "decision" of the kind being considered was "not limited to a final decision disposing of the controversy between the parties", notwithstanding that his Honour, in the course of a detailed exegesis of the term in the instant case came to the conclusion that the word "decision" should be construed as meaning the ultimate or operative determination. The comment I have earlier referred to indicates his Honour's more general view on that issue; that is, that the term should generally be given a wide construction.

23 I consider that a similarly wide construction should be given to the relevant word in s 189 generally and also particularly in relation to non judicial decisions of the Commission. However, this matter is concerned with the particular circumstance of a decision given in proceedings where the Commission is exercising judicial powers and that leads me to return to that part of his Honour's judgment in which he discusses that issue. His Honour's judgment includes this passage at 335: In the context of judicial proceedings, the Privy Council has accepted that "the natural, obvious and prima-facie meaning of the word 'decision' is decision of the suit by the Court": see Rajah Tasadduq Rasul Kahn v Manik Chand (1902) LR 30 Ind. App. 35 at 39; The Commonwealth v Bank of N.S.W. (1949) 79 CLR 497 at 625. But here the relevant context is not that of a decision reached in curial or judicial proceedings, so that the meaning must be determined by reference to the text, scope and purpose of the statute itself. 24 It is to be observed that one of the authorities his Honour referred to was the judgment of the Privy Council in The Commonwealth v Bank of N.S.W. (the Bank Nationalisation Case). In that judgment their Lordships were considering the construction of a provision dealing with appeals to the Privy Council "from a decision of the High Court". In that context their Lordships said: "Decision" is an apt compendious word to cover "judgments, decrees, orders and sentences", an expression that occurs in s. 73. It was used in the comparable context of the Judicial Committee Acts of 1833 and 1843 as a general term to cover "determination, sentence, rule or order" and "order, sentence or decree". Further, though it is not necessarily a word of art, there is high authority for saying that even without such a context the "natural, obvious and prima-facie meaning of the word 'decision' is decision of the suit by the Court": see Rajah Tasadduq Rasul Kahn v Manik Chand (1902) LR 30 Ind. App. 35, where the question was whether in the Indian Civil Proceedings Code "decision" meant the formal expression of an adjudication in a suit or the statement made by the Judge of the grounds of a decree or order, and Lord Davey , delivering the opinion of this Board used the words that have been cited above.

25 It is clear from those authorities that the word "decision" used in the context of judicial proceedings usually refers to the final determination by the Court of the suit between the parties. That approach has been consistently applied by other courts although in varying contexts: see, for example, the judments of the Full Federal Court in Ah Toy v Registrar of Companies for the Northern Territory (1985) 61 ALR 583 at 588 and Hannprint Pty Limited v Mita Copiers (Australia) Pty Limited (1996) 137 ALR 701 at 710; cf the judgment of the Court of Appeal in Bromley v Housing Commission of New South Wales (1985) 3 NSWLR 407.

26 Those authorities make clear that the normal approach to judicial proceedings and decisions therein is that the relevant legal act from which an appeal lies is the formal order made by a court which disposes of or deals with the proceedings before the court and not a judgment in the sense, as it is often used in other contexts, of a convenient abbreviation or reference to reasons for judgment.

27 It is also clear from those authorities that appeals lie not against reasons for decision but a judgment in the sense earlier referred to: see, for example, Hannprint Pty Limited v Mita Copiers (Australia) Pty Limited at 711 and the cases cited there.

28 Although, for the reasons I have already given, it is clear that the relevant word in s 189 is to be given a wide meaning irrespective of the kind of proceedings the subject of the appeal, nevertheless, I propose to limit my consideration in this decision to the matter precisely in issue here, that is, an appeal from a judge of this Court issuing a decision or judgment in judicial proceedings pursuant to s 106 of the Act. However, it is appropriate, before coming to that level of particularity to look at one or two other relevant provisions in the Act.

29 In attempting to determine the meaning which should be given to the relevant words in s 189, regard should be given to other provisions in the Act, particularly for present purposes s 179, which relates to the finality, subject to rights of appeal, of decisions of members of the Commission. That section is in the following terms: 179 Finality of decisions (1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted):

(a) is final, and (b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise). (2) A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise) may not be given or made in relation to a decision or purported decision of the Commission, however constituted. (3) To avoid doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission.

30 It is clear, in my view, that the word "decision" is used in subsection (1) of s 179 in the same sense in which it is used in s 189. I leave aside at present whether a similar meaning is to be attached to the word as further defined or elaborated in subsection (3) of s 179. That may be reserved for another time. The way in which the word "decision" is referred to in subsection (1) of s 179 confirms the conclusion that the term "decision" is to be given a wide meaning.

31 Section 190 of the Act, which deals with the stay of decisions appealed against, should also be noted. That provision is in the following terms: 190 Stay of decision appealed against

If an appeal is made under this Part to a Full Bench of the Commission, the Full Bench or the Commission constituted by a Presidential Member may, on such terms as it considers appropriate, order that the decision concerned be wholly or partly stayed pending determination of the appeal or until further order of the Full Bench or Commission.

32 The reference in that section to the power of a member or the Full Bench to grant a stay provides a power to make an "order that the decision concerned be wholly or partly stayed …". That provision makes clear that the word "decision" is intended to include the order finally determining the suit or proceedings. For example, if the word "decision" was not given a meaning which included that act, then the power to grant stay orders including those usually made by the Commission, would be significantly limited. That would be an unlikely result.

33 For reasons already given I consider that the word "decision" in these provisions is sufficiently wide to include the notion of a judgment of a court in the general way that term has been referred to in the cases cited.

34 In other words, the section, so far as judicial proceedings is concerned, is intended to grant a right of appeal in relation to the final determination or adjudication of the suit by the final orders made or pronounced. However, although I consider the legislature has used the word "decision" to refer to judgments in that sense, I also consider that the legislature was using that word in such a way as to show an intention that the word have a wider meaning insofar as judicial proceedings are concerned. The intention of the legislature was also to include a decision or judgment of the kind given by her Honour in this matter on 21 October last year. Thus a right of appeal was given in both of the situations relevant here.

35 The above analysis, particularly insofar as it relates to the situation where the Court is dealing with proceedings under s 106, is consistent with the judgment of the Full Bench in Nutshack Franchise Pty Limited v Smith (1999) 90 IR 355 at 359 - 360 where it was said: We are able to say immediately, and contrary to Mr Coleman's submission, that the order made by Maidment J for the payment of money became effective on its making, even though no time was specified for the money to be paid, so that the payment was to be made within a reasonable time. So much, in our view, is trite law: see Holtby v Hodgson (1889) 24 QBD 103 at 107, 108 and the current formulation in the Supreme Court Rules 1970 (NSW), Pt 40, r 3 as applied by the Industrial Relations Commission Rules 1996 (NSW), Pt 13, r 89(5).

36 That judgment of the Full Bench made clear, by reference to the incorporation into the Commission's Rules by r 89(5) of Pt 40 r 3 of the Supreme Court Rules, that orders of the Commission, when pronounced in open court, have effect forthwith or, if not pronounced in open court, when made. That is to say, in s 106 proceedings, if orders finally disposing of the matter are pronounced when judgment and reasons are given, then the orders operate instanter. However, if, as happened in the present case, the judgment and reasons required the parties to provide, either by agreement or otherwise, short minutes of order, the final orders do not take effect until they are made by the Judge dealing with the matter or another judge if the original judge is unavailable.

37 Perhaps, as a footnote, I should indicate that the conclusion I have reached may not operate to enlarge the time for appeal where the question of costs is not initially dealt with. Costs are often dealt with after the proceedings are otherwise concluded. The fact that the costs issues are yet to be determined would not affect the finality otherwise of the orders pronounced or made. Indeed, that approach or principle is embodied in r 203(1) of the Commission's Rules which provides: The Commission may in any proceedings exercise its power and discretion as to costs at any stage of the proceedings or after the conclusion of the proceedings.

38 The conclusion I have reached can also be reached in these proceedings from a different process of reasoning. For example, if one considered that the term "decision" in s 189 was to be construed more narrowly and was limited to the final disposition of a matter, or perhaps in relation to interlocutory proceedings, the determination in a conclusive way of the interlocutory issue (see Nicoletti, Australian Broadcasting Tribunal v Bond and Bromley v Housing Commission of New South Wales), the issue requiring analysis is whether the judgment of Glynn J should be read as evidencing an intention, by its terms, to provide the final determination of the proceedings before the Court. I have earlier set out the operative terms of her Honour's judgment and I consider that the relevant intention is to be gauged by comparing the terms of the final part of her Honour's judgment with the statutory provisions which provided power to make the relevant decision and determination. As I observed in Virtue v New South Wales Department of Education and Training (unreported, 15 October 1999) at pages 36 - 37: For relief to be available or granted under s 106 there must be, logically or sequentially, the following steps: (1) a finding that the contract (as defined in s 105) is an unfair contract (also as defined in s 105 but also as elaborated in s 106(2)); (2) an order that the contract be declared wholly or partly void, or varied, pursuant to s 106(1); (3) an order as to the payment of money in terms of s 106(5) and subject to the terms of that provision. See, for example BNY Australia Limited v James (1992) 40 IR 1 at 2, 27, 36 - 38, 54 - 55.

It will happen in some cases, that an order of the kind referred to in step (3) is not necessary or appropriate (see, for example Daley v New South Wales Rugby League Limited (1995) 78 IR 247 at 287 - 288) but in order for step (3) to be taken, steps (1) and (2) are necessary. Similarly, the jurisdictional prerequisite to an order in terms of step (2) is a finding under the first step. 39 When one compares the relevant part of her Honour's judgment with the powers provided by s 106 as analysed in Virtue, it is clear that her Honour did not in the judgment of 21 October finally determine the matter before her but rather was indicating to the parties the matters that should be taken into account and acted upon in the final orders, yet to be made, and which orders would logically and sequentially deal with each of what I described in Virtue as the three separate steps. In no objective sense could it be said that the judgment represented or embodied the specific final orders that would be made by the Court in the proceedings. Accordingly, the intention to be gathered from the judgment in an objective sense was that the final decision in the proceedings was one yet to be made, albeit after the parties had had an opportunity of considering the detailed judgment delivered by her Honour, the reasons given, and possible agreement on the precise orders that should be made to effectuate the Court's determination of the proceedings.

40 Approaching the matter in that slightly different way leads to the conclusion that the time for appeal might not have commenced to run before her Honour made final orders. Certainly, on that analysis, the appeal was lodged in time. Nevertheless, I consider that the more appropriate view of s 189 is that a right of appeal occurred in this matter both at the time that her Honour delivered judgment and also at the time her Honour made final orders. Obviously, each case will need to be considered on its own terms but I do not consider that a narrow construction of the relevant term in s 189 is appropriate.

41 In the light of the conclusion I have reached on the primary issue to be determined, it is not necessary to deal in any great detail with the application to extend time. However, I consider that it is appropriate that I deal with it at least in short form. As I indicated in the decision delivered last week in New South Wales Teachers' Federation and New South Wales Office of The Board of Studies, a useful judgment which helpfully sets out relevant principles is that of a Full Bench of this Court in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299 - 301. A judgment which I have recently applied not only in the New South Wales Teachers' Federation case but also in The De Luxe Cab Company Limited (formerly known as Deluxe Red and Yellow Cabs Cooperative Trading Society Limited) v Grenside (unreported, 5 January 1999). It has also been considered and applied by Walton J, Vice-President, in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. Although the Court in the Parkes Council matter was considering a particular issue (an out of time prosecution appeal against sentence), nevertheless the Court made some more general observations which usefully synthesise the relevant principles and which can conveniently be extracted as follows: 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 Limited (1994) 53 IR 3 at 5 - 6 as followed by the Full Commission (Cahill V-P, 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 Limited [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 [1973] 2 NZLR 86 at 92; and Jess v Scott supra 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; [1965] 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 accepting the approach inherent in the above propositions, the Full Commission observed in Skelly (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.

42 I have also considered the discussion of the relevant principles in Brookes v Watling and in Skelly v Prouds Jewellers Pty Limited, Full Bench decisions referred to earlier, and in the Parkes Council judgment.

43 It is convenient now to refer briefly to some of the factual matters which have been placed before the Court and in one important respect the subject of a fact agreed between the parties. That agreed fact is in the following terms: Until 7 December 1999 the respondent was not aware the appellant decided to lodge an appeal.

44 The other important factual matters derive from the affidavit of 16 December 1999 of Mr Christopher Dunphy, the managing director of the appellant. Although the solicitor for the respondent wished to cross-examine Mr Dunphy, material was tendered which shows that because of illness he was out of the country and was not fit to travel. The solicitor for the respondent thus reluctantly accepted that the affidavit could be read but submitted strongly that its weight was greatly affected by the circumstances. This situation was, in my view, appropriately accepted by counsel for the appellant.

45 Mr Dunphy deposes that he is the officer of the appellant with carriage of the the proceedings both on appeal and at first instance. He provides a chronology which I do not detail here. It is sufficient to note that he received a copy of her Honour's judgment on the day it was issued. He had discussions soon thereafter with his lawyers as to the form of the proposed orders. He was apparently involved in the formulation of the terms of the orders finally agreed between the parties. He also indicates:

6. In order to determine whether the Appellant would lodge an application to appeal Her Honour Justice Glynn's decision I had to discuss this matter with the Board of LEP International New Zealand Ltd in New Zealand. The Appellant is a wholly owned subsidiary of LEP International New Zealand Ltd.
7. I am based in Melbourne and am required to travel both interstate and overseas in my employment. During the period from the end of October 1999 until the end of November I was required to undertake the following travel: (i) From 9 November to 12 November 1999, I was in Hong Kong attending a regional Chief Executive Officers' meeting. (ii) From 16 November to 19 November 1999, I was in Christchurch, New Zealand, attending and LEP sales meeting. (iii) From 24 November to 30 November 1999, I was in Auckland, New Zealand, attending to the Mainfreight press release, various institution fund managers meetings and briefing the Westpac Corporation Advisory Board on a recent acquisition. In addition to the overseas travel I was required to travel within Australia.
8. On 2 December 1999 I instructed solicitors to act on behalf of the Appellant and met with Mr Paul Brown of Baker & McKenzie, Solicitors, and counsel.
9. I did not have an opportunity to discuss or consider this matter with Counsel and my solicitors until 2 December 1999.
10. Following this meeting I instructed the solicitors and counsel to lodge an appeal.

46 It seems reasonably clear from the evidence, particularly when it is the subject of the scrutiny and analysis to which it was subjected by the solicitor for the respondent, that this is not a case where there is any question of default or oversight on the part of the appellant's lawyers. Their role in the final decision-making process to lodge the appeal was obviously quite limited. Their role was limited relevantly to receiving instructions on 2 December to lodge the appeal and ensuring that it was lodged on 6 December. What they did in the circumstances was entirely appropriate and nothing in these proceedings turns on it.

47 The crucial questions involve a consideration of why Mr Dunphy did not take appropriate and timely steps to progress the matter towards an appeal if that is what he or the appellant desired should be done.

48 Although his affidavit appears to leave out a number of important factual matters, such as the details of the matters he was engaged upon within Australia at the time, it is clear, and I so infer that he took the view, that he, in conjunction with the Board of the appellant's parent company in New Zealand, had to make the relevant decisions and because of his commitments it was not feasible to do that in a timely way. I have already determined that this appeal has been lodged in time because of the view I have taken as to the proper construction of s 189, but I emphasise I am dealing with this aspect on the basis of an alternative hypothesis and I am therefore considering the question of whether, if an extension of time was necessary, it should be granted. There are elements of the actions or inactions of Mr Dunphy which are capable of being criticised. It seems clear that, because of his commitments otherwise, he did not give this matter the priority that it should have been given.

49 However, it is appropriate to take into account that he did, in an appropriate and timely way, play an important role in ensuring the final orders to be made by her Honour were dealt with in a timely way and it is clear that in certain periods, at least proximate to time relevant to this issue, he was travelling extensively and was very busy.

50 As I said earlier, although some criticism could be levelled at his failure to take immediate and timely action in all of the circumstances, I do not consider that his conduct and thus the conduct of the appellant was such that there is not an available explanation for the lack of a timely appeal. The circumstances here revealed cannot be described as a substantial delay of the kind referred to by the Full Commission in Skelly v Prouds Jewellers. I accept completely the considerations of principle set out in that decision and the other Full Bench decision I have referred to. I also accept that appropriate weight should be given to the public interest, that a successful litigant such as the respondent is generally entitled to proceed on the basis that a decision in his favour will stand, particularly in the absence of an appeal being filed within the time prescribed and the absence of communication to a different effect to him. Further, that the discretion will not automatically be exercised, particularly if the application is made after the time for the appeal has expired.

51 The final consideration, as the authorities make clear, requires the Commission to take all relevant matters into account and endeavour to do justice between the parties having regard to all of those circumstances and those circumstances include 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. I accept and act on the basis that an application such as the present requires consideration of the prospects of the appellant succeeding in the appeal.

52 I will deal with the last matter first. I do not propose to detail the helpful submissions of both parties on this question. I make clear I consider that this question has to be considered in the context of the stage the proceedings have reached. I am not engaged in the task of deciding whether a Full Bench would actually grant leave to appeal. The question I have to consider overlaps with that question but they are essentially different questions.

53 I consider, on balance, but not without some hesitation, that it could not be said the strength of the appellant's case is such that that would be a factor which would tell against the grant of an extension of time. In that regard, I note this is not a case where there is in any sense an "all grounds" appeal. Rather, there are particular heads of appeal which have been the subject of specific submissions by the appellant's counsel by reference to particular aspects of her Honour's judgment where it is said her Honour erred or failed in a relevant sense to exercise her discretion appropriately. I have reached this conclusion notwithstanding the limitations on appeals in relation to such matters which were described by the Full Bench in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 392 - 393: The provisions of the Act as to appeals give primacy to first instance decision-making in a manner not earlier found in industrial legislation in this State. 54 In the present context, it could not be said the appeal was futile. In that regard see the discussion in Famonselle Pty Limited v Nairne (unreported, Hungerford J, 22 June 1990, page 7). It is also relevant, when looking at the overall context in which the present application is brought, to note the very specific grounds of appeal and that the appellant has been able to relate these in a very particular way to the aspects of her Honour's judgment which will be subject to scrutiny on appeal.

55 It is also relevant, in my view, to note what follows from this situation. A stay has been granted by consent which may be revisited, not as to the whole amount resulting from her Honour's judgment, but only as to somewhat more than half. In other words, a sum in the order of 40 per cent of the total judgment has already been paid by the appellant to the respondent and the issue as to the balance may well be revisited after the parties have had the opportunity of considering this judgment. Any potential injustice arising from the progress of this appeal may be appropriately dealt with in relation to any further consideration of the stay.

56 It is also relevant to consider the history of the proceedings overall and the conduct of the parties and of the consequences for the parties of the grant or refusal of the application to extend time. In my view the only inference available from the record, so far as it is before me, is the proceedings have been conducted in an appropriate way and in a way which could not have occurred without responsible and appropriate co-operation from those appearing for the present appellant. Indeed, there appear to be at least an implicit concession in that respect from the solicitor for the respondent. I consider that is an important and material consideration, having regard to the nature of the litigation and the overall consequences of the present matter.

57 I also consider that the question of any potential adverse effect to the respondent is capable of being dealt with, if appropriate, not only in the context of the further consideration of the stay but also in relation to the question of the costs of the appeal. I do not, in those circumstances, find prejudice of significance to the respondent if the application is granted and I consider that the appropriate exercise of discretion in the context of attempting to achieve justice between the parties would involve the exercise of discretion in favour of the grant of the application.

58 Lastly, in relation to this issue, although her Honour gave very clear parameters to the parties as to what the final orders should be, nevertheless the appellant did act in an appropriate, reasonable and timely way to ensure that the final orders were made. The fact that the appeal was lodged somewhat less than three weeks from the time those orders were made is a factor relevant to the consideration of the overall history and circumstances of the matter and in the context of those overall circumstances that is a material factor which again should be taken into account in the exercise of discretion in granting the application to extend time. I am satisfied that there is material before the Court which can satisfy it that to refuse the application would constitute an injustice to the appellant.

59 I have earlier raised with the parties the form of orders that would be appropriate. It is clear that it is not necessary formally to grant the actual application brought to extend time in the light of my conclusions as to both issues. The order that should be made should therefore deal with the matter in a way which is appropriate in those circumstances.

60 Similarly, and this is a matter which has been the subject of agreement between the parties, I should give effect to the concession made by counsel for the appellant that it was appropriate that, irrespective of the outcome of these proceedings, the appellant should pay the respondent's costs of this motion. That was an appropriate approach for the appellant to take in the circumstances and it is appropriate that I act upon it.

61 I accordingly make the following orders: 1. That the application for leave to appeal and notice of appeal lodged by the appellant on 6 December 1999 is, and is deemed to have been, lodged in accordance with the requirements of s 189 of the Industrial Relations Act 1996. 2. That LEP International Pty Limited is to pay the costs of Roger Caine of this notice of motion in a sum as agreed or, in default of agreement, as assessed. 3. That the proceedings be stood over for further directions at 10am on Friday, 10 March 2000. 4. Liberty to apply on reasonable notice in the meantime.

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