Lord v Flight Centre Limited

CASES CITED: Jia Ju Huang v The Sunnyfield Association [2006] NSWIRComm 144

HEARING DATES: 29/05/06 EXTEMPORE JUDGMENT DATE: 05/29/2006

APPELLANT: Ms Melissa Lord

LEGAL REPRESENTATIVES: RESPONDENT: Mr John Whateley

• 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Melissa Lord to extend time to appeal and leave to appeal and appeal against a decision of Commissioner McLeay given on 22.2.2006 in matter no. IRC 1342 of 2005

1 This is an application to extend time to appeal from a decision given by Commissioner McLeay on 22 February 2006. The Commissioner dismissed the application brought by Ms Lord under s 84 of the Industrial Relations Act 1996 ('the Act') for want of prosecution, in accordance with Rule 146 of the Commission's Rules, because the application was not pursued with due diligence. No explanation of what caused the Commissioner to reach this conclusion appears in the decision and no other reasons for the decision were given. 2 The application for extension of time was filed on 19 April 2006. It seems that originally Miss Lord had tried to file an appeal from the Commissioner's decision on 4 April, but it was returned to her by the Registry, with advice of the need to make an application for extension of time. 3 Miss Lord appeared as an unrepresented litigant at the directions hearing in this matter. The respondent had been given notice by the Registry of the listing, but did not appear on that day. Subsequently, the Registrar notified the respondent of the hearing and the directions which had been made for the preparation of the matter for hearing, which required that an outline of submissions be filed by both parties. Neither party adhered to those directions. Oral submissions were advanced by both parties at the hearing. 4 Miss Lord's case was that she did not become aware of the Commissioner's decision until 5 March. On 7 March she wrote to the Commission querying the decision. On 13 March, she received advice that the application had been dismissed and the file closed, with reference made to what had occurred in proceedings on 9 December. Miss Lord complained that in further discussion and correspondence with officers of the Commission over the following fortnight, no mention was made of the process following the advice of the decision, nor was she advised of the appeal process available. 5 Miss Lord had learnt of her right to appeal from a friend, who was a solicitor, around 4 April. In the application for leave to appeal which she then sought to file, Miss Lord asserted that on 9 December 2005 she had been advised by a Commission officer that orders had been made that day requiring her to advise the Commission by 28 February of progress in Local Court proceedings between the parties. In fact, the transcript recorded that Ms Lord had been directed to approach the Commission by 17 February. Miss Lord wrote to the Commissioner on 28 February, but was advised that the proceedings had been dismissed. 6 The Local Court proceedings, which had been initiated by the respondent in April 2005, were dismissed on 21 March 2006, it seems, as Mr Whateley appearing for the respondent explained, because of the respondent's failure to comply with directions given to it by the Local Court. Fresh proceedings have now been commenced by the respondent against Miss Lord, which it will pursue against her.

Consideration 7 Section 189 of the Act requires that an appeal be filed within 21 days after date of the decision appealed against. It follows that Ms Lord became aware of the decision within that time frame, but did not attempt to file the appeal until 4 April, for reasons which she explained at the hearing. The further delay until 19 April, resulted from the advice later received from the Registry, of the need to make an application for extension of time to appeal. 8 The approach to be adopted to applications such as this is well settled. Justice must be done between the parties in the circumstances before the Commission and regard must be had to the history of the proceedings, the nature of the litigation, the consequences of the refusal of, or granting of the application and the prospect of success of the appeal. (See the recent discussion of the applicable authorities by Kavanagh J in Jia Ju Huang v The Sunnyfield Association [2006] NSWIRComm 144.) 9 Here it appears that the decision given by Commissioner McLeay in the unfair dismissal proceeding brought by Miss Lord under s 84 of the Act, followed conciliation proceedings conducted by the Commissioner in which the proceedings were adjourned by consent, while other proceedings between the parties before the Local Court, were dealt with. 10 In those proceedings the respondent had been seeking to recover moneys from Miss Lord, which she had allegedly wrongly obtained from a trust account. How the matter before the Commission came to be dismissed for want of prosecution on 22 February, is entirely unclear on the face of the Commissioner's decision. Comments in transcript are no substitute for reasons in a decision. (See Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33 at [41]) However, the transcript of 9 December suggests that the decision to dismiss did not result from an application made by the respondent, but rather from steps taken by the Commissioner herself. 11 It was common ground that the Commissioner later acted to dismiss the application for want of prosecution, without giving either party an opportunity to be heard, before that order was made. No explanation for the decision was given. 12 Miss Lord here complains about that dismissal, explaining that she had acted in accordance with her understanding of what the Commissioner had required on 9 December, but incorrect advice had been given to her by an officer of the Commission, as to the date by which the Commissioner required her to advise of progress in the Local Court. 13 The respondent made no complaint about the dismissal of the proceedings. Its attitude to the application for extension of time was that it was opposed, because Miss Lord had a history of failure to comply with timetables and directions given by the Commissioner, as the transcript of 9 December showed. 14 There may well be a proper basis for that submission. Nevertheless, I am satisfied, in the circumstances of this case, that justice requires that the application for extension of time to appeal must be granted. 15 On 9 December, the Commissioner forcefully raised with Miss Lord the need for her to communicate with her office as to progress in the Local Court proceedings:

Commissioner: I am putting on record now notice to you that if you did not comply with directions I will look at - I am not saying I will do this but I may do this - dismiss your application for want of prosecution. Do you understand that?

Commissioner: I have the power under the Act to do that, I have every right to do that, and I am giving you formal notice right now that that's what I will consider if you don't comply with any further instructions from this Commission.

Where any party has not done any act required to be done by or under the Act or any other Act or otherwise has not pursued the proceedings with due diligence, a tribunal may:

(a) order that the application be dismissed for want of prosecution, or

(b) fix a definite time for the doing of the act and at the same time order that upon non-compliance the application shall stand dismissed for want of prosecution or subsequently, in the event of non-compliance, order that it be dismissed, or

(c) make such further or other order as in the circumstances may seem just.

17 The Commissioner's decision does not explain why the view was later formed that Miss Lord had not pursued her application with due diligence. 18 It was common ground between the parties that the Commissioner did not give Miss Lord, or the respondent, an opportunity to be heard on that question, despite what had been said on 9 December. Real questions of natural justice arise, especially given the consequences of the Commissioner's decision. 19 As I have said, I am satisfied in all the circumstances of this case that the application for an extension of time should be granted, given the nature of the litigation, the history of the matter and the consequences of the refusal of that application, which I have outlined. Further, a decision made to dismiss an application brought under s 84 for want of prosecution, before conciliation has been concluded and without first giving the parties an opportunity to be heard, must mean that Ms Lord's appeal has prospects of success. Orders 20 For those reasons, I am satisfied that justice requires that the application be granted. I order accordingly. Any question of costs is reserved.

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