Mullins v Department of Education and Training

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Mullins v Dept of Education and Training [2006] NSWIRComm 1136 WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298

APPELLANT: No appearance LEGAL REPRESENTATIVES: RESPONDENT: Mr S Benson of counsel

• 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

KEITH MULLINS AND DEPARTMENT OF EDUCATION AND TRAINING

Application by Keith Mullins to extend time to appeal and leave to appeal and appeal against a decision of Commissioner Ritchie given on 8.9.2006 in matter no. IRC 5948 of 2005 and from a result of the Full Bench in matter no. IRC 3116 of 2006 given on 4.12.2006

1 Mr Keith Mullins seeks an order under s 191 of the Industrial Relations Act 1996 ('the Act'), extending time to appeal a decision of a Full Bench of the Commission, given on 4 December 2006, allowing Mr Mullins to discontinue an appeal which he had brought against a decision given by Commissioner Ritchie, on 8 September 2006 (see Mullins v Dept of Education and Training [2006] NSWIRComm 1136). 2 Commissioner Ritchie's decision concerned an application Mr Mullins had brought under s 93 of the Act, seeking reinstatement in his employment with the Department of Education and Training ('the Department'). Mr Mullins' case was that he had been constructively dismissed. The Commissioner concluded that there had been neither a termination of Mr Mullins' employment by the Department, or by him. In those circumstances, the Commissioner concluded that the Commission lacked jurisdiction to hear the application for reinstatement. 3 When Mr Mullins' appeal from Commissioner Ritchie's decision came before the Full Bench on 4 December 2006, Mr Mullins sought leave to discontinue the proceedings. That leave was granted. 4 In his application for extension of time to appeal, Mr Mullins referred to the circumstances in which he had sought a discontinuance of the appeal proceedings, which included advice which he had then received from his solicitor and that he had later been dismissed from his employment in January 2008. 5 This matter was listed for hearing on 15 May. There was no appearance for Mr Mullins, who could not be contacted by the Court. He later explained that he had not appeared, because he had taken a teaching position in Orange. He asked for the matter to be relisted in July, so that his application could be pressed. That request was refused, but Mr Mullins was given a further opportunity to make a written submission, in support of his application. By letter of 29 May, Mr Mullins submitted, amongst other things, that:

Additionally, my application for the extension of time (15.5.08) was as a result of new evidence by way of my dismissal by the Department of Education and Training (DET, 18.01.08). My dismissal as new evidence impacts on the hearing conducted and decision given by Commissioner Ritchie (8.9.06), to the effect that my teaching position's reinstatement could not and ought not to be finalized as a result of my not having been dismissed nor have I resigned hence my application for the extension of time (Matter 440/08) so that a final decision could be made forthwith. Furthermore and consistent with Commissioner Ritchie, Commissioner Cambridge's jurisdiction in dealing with my ordeal was stopped by Mr Patrick Quinn, for DET (Legal Services) on the 29th June 2006 on the basis that I have not been dismissed nor have I been asked to resign let alone resigned and therefore, in effect, legally in support of the new evidence by way of dismissal implications on my career for full reinstatement and compensation within IRC and DET policy guidelines and protocol.

In reference to the Full Bench (4.12.06), I have been granted discontinuance on the basis of legal suggestion and, according to my interpretation of discontinuance, I could revisit the matter should new evidence or significant change arise of which, exposed DET's official dealings with my ordeal. New evidence has arisen as noted and therefore ought to open the way for the IRC to resume its jurisdictional rights in dealing with my ordeal and fulfilling my lawful reinstatement and compensation by way of my right for natural justice, supported by the overwhelming evidence filed with the IRC, by me, regarding certain factions within DET (as documented), having misappropriated the "Employer" Industrial Instrument Protocol relevant to Workcover and Industrial Relations, GIO, State and Federal Legislation among others for which consequences have not been accounted to my knowledge.

Consequently, I respectfully request Your Honour's approval to extend time in relation to the aforementioned because, in the final analysis, my ordeal to this point (matters 440; 459/08) was not of my making (documented evidence) and therefore imperative that natural justice be served in accordance with the IRC's Mandate and in relation to my full entitlements as a result of DET negligence of duty of care in reference to the contravention of DET policies having impacted on my health and welfare relevant to the workplace since 16 November 2004 to 18 January 2008 let alone August 2003 on another site.

6 The Department opposed the leave sought, for various reasons which I will refer to below. Consideration 7 The law in relation to applications such as this is well settled. It is convenient to refer to what was said by the Full Bench in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at pp 299 - 301:

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 Ltd (1994) 53 IR 3 at 5-6 as followed by the Full Commission ( Cahill VP, 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 Ltd [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 therefor 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 [1978] 2 NZLR 86 at 92; and Jess v Scott 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.

8 This application is unusual, given that it seeks leave to appeal a decision of a Full Bench of the Commission, in which Mr Mullins was granted leave to discontinue the appeal proceedings, which he himself had sought. 9 Section 187 of the Act provides for a right of appeal against a decision of a single member of the Commission, to a Full Bench. As the respondent submitted, there is, however, no provision made in the Act for an appeal from a decision of a Full Bench of the Commission. To the contrary, s 179 of the Act provides: 179 Finality of decisions (1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal. (2) Proceedings of the Commission (however constituted) may not be prevented from being brought, prevented from being continued, terminated or called into question by any court or tribunal. (3) This section extends to proceedings brought in a court or tribunal in respect of a decision or proceedings of the Commission on an issue of fact or law. (4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of: (a) the Full Bench of the Commission in Court Session, or (b) the Commission in Court Session if the Full Bench refuses to give leave to appeal the decision. (5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise. (6) This section is 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. (7) In this section: decision includes any award or order 10 While s 189 of the Act permits the Commission to extend time to appeal, as I have noted, it is well settled that in exercising that discretion, the Commission must have regard to various matters relevant to the exercise of that discretion, including the appellant's prospects of success on appeal. Here, it would seem that the appeal can have no prospects of success at all, because there is simply no right to bring such an appeal. In his submissions Mr Mullins did not point to any other basis upon which could be argued that he could bring such an appeal. 11 That Mr Mullins acted on his solicitor's advice in seeking leave to discontinue his appeal from Commissioner Ritchie's decision, does not assist his application in these proceedings. Nor does the fact that he was later dismissed from his employment in January 2008. Mr Mullins then had a right to bring an application to the Commission, in relation to that dismissal, had he wished to do so. Indeed, it appears that he has, in fact, exercised that right. In his submissions, Mr Mullins made various references to those proceedings, which it is unnecessary to repeat. They have no relevance to the matters which here arise for determination. The disposal of this application has no bearing on the other proceedings Mr Mullins has taken. 12 To grant the leave now sought in these proceedings would be a futility. As the respondent submitted, in those circumstances, it would be wrong for the application for an extension of time to appeal to be granted. Other factors, including the nature of the decision which Mr Mullins wishes to complain about, namely a decision to grant him the leave to discontinue the proceedings, which he himself sought of the Full Bench, and the time at which that leave was granted, namely in December 2006 and when this application was brought, not until April 2008, also support the conclusion that a proper exercise of the discretion to extend time, could not permit the extension sought. Orders 13 For the reasons given, the application to extend time to appeal is refused.

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