s.120 - Appeal to Full Bench

Extension of time in which to institute appeal - Australian Industrial Relations Commission Rules 2007 - rule 13(2) - object of rule - principles governing extension of time in appeal proceedings.

[1] Nathan Wellington has applied for an order extending time in which to lodge an application for leave to appeal (extension of time application) against the decision of Commissioner Thatcher given in Sydney on 11 May 2009 [2009] AIRC 465]. [1] The extension of time application was lodged on 1 June 2009. In the proceedings before the Commissioner Mr Wellington was the applicant and Express Publications Pty Limited (Express) was the respondent. Mr Wellington was pursuing a remedy under s.643(1)(a) of the Workplace Relations Act 1996 (WR Act) in respect of the termination of his employment.

[2] Rule 13(2) of the Australian Industrial Relations Commission Rules 2007 (Rules) provides that an appeal must be instituted within 21 days after the date of the decision appealed against or, on application, within such further time as is allowed by a Full Bench. The object of that part of the rule, in which the Commission may allow further time to appeal, is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. [2] Mr Wellington's extension of time application was lodged within 21 days of the date of the decision against which he seeks leave to appeal. Although nothing turns on that fact we note the extension of time application was made within the time allowed for an appeal.

[3] The extension of time application was allocated for hearing in the appeal sittings in Sydney on 23 and 24 June 2009. Included in the extension of time application are asserted issues of fact amounting to allegations of bias, a denial of procedural fairness in the conduct of the proceedings and errors in the Commissioner's findings on credibility and as to the facts. In light of the allegations contained within the extension of time application the matter was initially listed for mention before the member presiding in the appeal sittings to ascertain if Mr Wellington wished to have the extension of time application treated as his application for leave to appeal. Mr Wellington then declined to adopt it as such on the grounds that he required legal advice as to how he should properly construct his grounds of appeal. He reported that an appointment had been made for him to meet with a representative of Legal Aid on 19 June 2009. The matter accordingly was left on the basis it would be dealt with in the appeal sittings on 23 June 2009.

[4] In the hearing before the Full Bench on 23 June 2009, Mr Wellington pressed his application for an extension of time. He reported that he had attended a meeting with Legal Aid on 19 June 2009. Legal Aid is reported to have told him that it could not make a decision on an application for legal aid in the short time available before the listing of his extension of time application. He said that Legal Aid advised him that he should turn up on 19 June and report that he has no legal representation to push his case forward or to professionally utilise the law to his best opportunity. He further reported that Legal Aid had advised him that he should obtain a letter from his doctor showing that he was receiving medical treatment. Invited to make submissions in relation to his case Mr Wellington then proceeded to do so.

[5] The substance of Mr Wellington's submissions was that he has good reason for delay in instituting his appeal, that his case has merit and that he should be allowed further time in which to initiate the appeal in order that he may secure legal representation to fairly prepare and present his case on appeal. The delay, he contended, was due to his illness after receiving the Commissioner's reasons for decision and his unsuccessful attempts to secure legal advice. On the issue of merit he contended that the Commissioner had exhibited bias against him by his observations in the course of the hearing about time being taken by Mr Wellington in his own case and in his challenges to the case being put by Express. He said that he felt pressured by the Commissioner's observations and that he was not given a fair go. It was also suggested that the Commissioner made errors in his findings as to issues of credibility of witnesses for Express. Mr Wellington sought to make submissions also about events since the termination of his employment.

[6] Express opposed the grant of an extension of time and argued its case in terms of the principles set out in Brodie-Hann v MTV Publishing Ltd. [3] It submitted that there was no reasonable explanation for the delay in lodging a notice of appeal. Addressing the substantive issues of procedural fairness and the exercise of discretion Express contended that Mr Wellington had been given every opportunity to be heard at first instance. It further submitted that the Commissioner dealt with each party fairly during the hearing. The Commissioner, it was submitted, properly made concessions to Mr Wellington as a self represented litigant.

[7] Turning to the merits of case and the Commissioner's exercise of discretion at first instance, Express submitted that the evidence was mostly uncontested in relation to the events associated with the termination of employment. Mr Wellington's claims about the Commissioner's findings on credibility, Express submitted, are without foundation. It further submitted that the appeal, if instituted, would have no reasonable prospects of success.

Principles governing an application to extend time

[8] The principles enunciated in Brodie-Hann, upon which Express relies, were distilled from a number of Federal Court decisions dealing with applications for an extension of time in first instance cases. [4] In our view the principles applicable in determining an application for an extension of time in which to appeal vary slightly from the Brodie-Hann principles in first instance matters. Fundamentally, it is a question of whether granting an extension of time for leave to appeal out of time, is necessary to enable the Commission to do justice between the parties. In that regard we consider the following principles most apt:

• there should be adequate reasons which explain the delay;

• it is relevant to consider the prospects of success of the appeal. If it is clear that the appeal will fail in the sense that it is not 'arguable' or not 'fairly arguable', that may militate against granting an extension of time; [5]

• there should not be hardship or prejudice or injustice to the respondent.

[9] As noted above the application to extend time is made within the time allowed for appeals. The reason Mr Wellington wishes to extend the time is allow him an opportunity to secure legal advice and/or representation. It is a well recognised principle in Australian law that a person accused of a crime has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. There is no equivalent principle in civil matters. In fact there is no absolute common law right to legal representation and legal representation in the Commission is only by its leave in any event. That said Mr Wellington was entitled to a fair hearing and the question is whether the absence of legal representation on the appeal warrants an extension of time in which he might secure such representation.

[10] Mr Wellington was self represented in the proceedings at first instance. Express was represented by in-house counsel. An examination of the transcript of those proceedings suggests that Mr Wellington may have been at a disadvantage. Over the course of the three day hearing counsel for Express made no fewer than 130 objections to questions being asked by Mr Wellington. This is a reasonable indication of Mr Wellington's limited knowledge of practice and procedure. Applying the criteria prescribed by s.100(5)(a) and s.100(6) of the WR Act for determining applications for legal representation in proceedings before the Commission, we are compelled to say Mr Wellington has adequate reasons for extending the time to lodge his appeal.

[11] Mr Wellington contends he was denied procedural fairness in the first instance proceedings; that the Commissioner was biased and that the Commissioner erred in determining that the witnesses called by Express were credible. The allegations of procedural fairness and bias were said to be manifested in the Commissioner's observations about the amount of time Mr Wellington was taking to run his case and the consequent pressure he felt conducting his case. It is evident from a fair reading of the transcript of proceedings the Commissioner allowed Mr Wellington every reasonable opportunity to present his case. In our view the Commissioner exhibited considered patience and tolerance in allowing Mr Wellington considerable indulgences in the presentation of his own evidence and in cross-examination of the witnesses presented by Express. There are of course limits to such indulgences beyond which a miscarriage of justice is certain to occur. In our view Mr Wellington's claims of procedural fairness and bias are without foundation and unlikely to succeed on appeal.

[12] We are unable to discern any errors of judgment in the Commissioner's findings as to the credibility of witnesses. Accordingly, we think it unlikely Mr Wellington would be successful in the prosecution of any appeal on that ground.

[13] Express contends that it would be prejudiced by a grant of an extension of time. It contends that there is a real cost in relation to having to go through not only an appeal, but possibly to have the matter reheard again in circumstances where it might result in exactly the same result as what happened in the first round. Express submitted that the nature of the grounds of appeal would almost certainly necessitate a rehearing because of the issue of credibility. While we do not accept that the issue of credibility would necessarily require a rehearing we are satisfied that there would be some prejudice to the respondent.

[14] We accept that Mr Wellington would be assisted by legal representation and that his circumstances would justify a grant of leave of appearance to counsel in the circumstances of this case. He has however, had ample opportunity to seek out legal advice and/or assistance. In his submissions on the application for an extension of time Mr Wellington, in response to a question from the bench, stated:

"I called several pro bono based people. As soon as I mentioned at the state that the hearing was at, I was dropped like a leper I guess you might say, where they just didn't want to know about that."

[15] In light of our conclusions that the grounds of appeal are not fairly arguable we do not consider it appropriate to extend time for Mr Wellington to pursue his quest for legal assistance any further. We refuse the application for an extension of time in which to institute the appeal. An order to that effect will issue separately.

[1] [2009] AIRC 465.

[2] See Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257, 262.

[4] See Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344.

[5] Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516, [34].

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