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: