Ng and North Coast Area Health Service & Anor [2008] NSWIRComm 91 - NSWIRComm 2008 case summary — Zoe

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Ng and North Coast Area Health Service & Anor [2008] NSWIRComm 91

[2008] NSWIRComm 91

Industrial Relations Commission (NSW)|2008-07-01|Before: Staff J

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Court

Industrial Relations Commission (NSW)

Decision date

2008-07-01

Before

Staff J

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

CITATION: Ng and North Coast Area Health Service & Anor [2008] NSWIRComm 91 This decision has been amended. Please see the end of the judgment for a list of the amendments.

[2]

APPELLANT Leong Fook Ng PARTIES: RESPONDENTS North Coast Area Health Service Director General of New South Wales Department of Health

[3]

Appeal - Time to appeal - Whether appeal filed within statutory time limit - Whether extension of time to appeal necessary - Decision dismissing application for relief - Subsequently decision re costs - Application for leave to appeal and to appeal filed within 21 days of decision re costs but outside statutory time limit in respect of decision dealing with the substance of proceedings - Appeal re costs within time - Whether time for appeal is enlarged where the question of costs is not initially dealt with at the conclusion of substantive proceedings - Held - A decision in respect of costs does not give a right of appeal to an earlier final decision, particularly a decision dealing with the substance of the proceedings - Appeal against final decision out of time - Application for extension of time to appeal substantive decision refused - Negligible prospects of success - Principles relevant to appeals from interlocutory decisions - Principles relevant to applications for extension of time to appeal - Industrial Relations Act 1996 (NSW) s 189 - Industrial Relations Commission Rules 1996 (NSW) r 45 CATCHWORDS: Administrative Law - Appeal - Time to appeal - Whether appeal filed within statutory time limit - Whether extension of time to appeal necessary - Decision dismissing application for relief - Subsequently decision re costs - Application for leave to appeal and to appeal filed within 21 days of decision re costs but outside statutory time limit in respect of decision dealing with the substance of proceedings - Appeal re costs within time - Whether time for appeal is enlarged where the question of costs is not initially dealt with at the conclusion of substantive proceedings - Held - A decision in respect of costs does not give a right of appeal to an earlier final decision, particularly a decision dealing with the substance of the proceedings - Appeal against final decision out of time - Application for extension of time to appeal substantive decision refused - Negligible prospects of success - Principles relevant to appeals from interlocutory decisions - Principles relevant to applications for extension of time to appeal - Industrial Relations Act 1996 (NSW) s 189 - Industrial Relations Commission Rules 1996 (NSW) r 45

[10]

1 On 16 January 2008, Dr Leong Fook Ng ("Dr Ng") filed an application for leave to appeal, and if leave is granted, to appeal against a decision of Deputy President Harrison given on 18 July 2007, dismissing an application for relief from unfair dismissal and a decision given on 19 December 2007, ordering Dr Ng to pay the North Coast Area Health Service and the Director-General of the NSW Department of Health ("respondents") costs on an indemnity basis: Ng v North Coast Area Health Service And Another [2007] NSWIRComm 173 ("Ng (No 1)") and Dr Leong Fook Ng v North Coast Area Health Service (No 2) [2007] NSWIRComm 311 ("Ng (No 2)"). 2 At the directions hearing of the appeal before Walton J Vice-President on 11 February 2008, the respondents raised an issue in respect of whether the appeal against Ng (No 1) was out of time. 3 On 4 March 2008, Dr Ng filed a notice of motion seeking an extension of time pursuant to s 189(1) of the Industrial Relations Act 1996 ("the Act") to appeal in respect of the notice of appeal "insofar as it is required". 4 The applicant relied on the following grounds and reasons for the extension of time: (i) The applicant was unaware that for the purposes of an appeal time commenced to run prior to the making of final orders in the proceedings; (ii) That the consequence of requiring a party to appeal only against a costs order in circumstances where he/she has not previously appealed against the substantive order is that the party is bound by the findings on the substantive matter notwithstanding that they may be wrong; (iii) The findings of the learned Deputy President in the substantive matter were made in circumstances where the matters raised before the learned Deputy President were not before him for determination. 5 The notice of motion was supported by an affidavit of Mr Denis Fitzpatrick, solicitor for Dr Ng sworn on 5 March 2008. Mr Fitzpatrick annexed to his affidavit a facsimile copy of a letter from the respondents' solicitors to the Commission dated 14 June 2007. This letter foreshadowed an application for an order for costs. The letter relevantly provided: We wish to advise that the NCAHS would like to make an application for an Order for costs in the above matter. We anticipate being able to file a brief Affidavit going to the matters that the NCAHS asserts establish either: 1. That the applicant (Dr Ng) filed an application that was frivolous or vexatious; or 2. Alternatively instituted proceedings without reasonable cause; or 3. Alternatively, unreasonably failed to agree a settlement of the claim. The NCAHS will move the Commission pursuant to section 181(2) of the Industrial Relations Act 1996. ... cc. Solicitor for Dr Ng Denis Fitzpatrick Solicitors 6 Although the letter made provision for the respondents' solicitors to forward a copy to the appellant's solicitors, a copy was not received by Mr Fitzpatrick until 9 August 2007. There was no evidence called that clarified whether the letter was originally forwarded to the appellant's solicitors on 14 June 2007. Apparently, no reference was made to the application for costs during the proceedings before the Deputy President on 19 June 2007. The respondents advised that they had instructed their agent to make an application for costs when the Deputy President delivered his reasons for decision on 18 July 2007. However, the agent was running late and missed the delivering of reasons by the Deputy President. 7 Mr Fitzpatrick stated that at the time he received the letter, he was of the view that the Deputy President's decision would not be complete until the costs issue was determined. It was his understanding that the time for lodging an appeal would commence once the Deputy President had determined the issue of costs. He stated that Dr Ng was also unaware that before 19 December 2007 (the date of the costs decision) that the 28 day period for lodging an appeal had commenced. Mr Rogers of counsel, who appeared for Dr Ng acknowledged that the time for lodging an appeal was 21 days.

[16]

[35] I find that Dr Ng was not dismissed from his employment by the Respondent. [36] It cannot be held that the Respondent's standing down of Dr Ng from duty on full pay whilst an enquiry was being undertaken into concerns expressed by colleagues was a termination or intention to terminate employment so as to be a constructive dismissal. The enquiry was not complete, no conclusion had been reached and Dr Ng continued to be paid. [37] The action of Dr Ng to remove himself from the New South Wales Medical Register brought to an end his ability to continue in a contract of employment with the Respondent in circumstances which do not give rise to jurisdiction of the Commission to entertain an application for relief from unfair dismissal. [38] The application is dismissed. Submissions 14 At the outset, Mr S Benson of counsel, who appeared for the respondents, confirmed that there was no challenge to the notice of appeal in respect of the Ng (No 2) decision dated 19 December 2007 as being out of time. 15 Mr Rogers submitted that the notice of motion invited the Court to make a determination whether time is in fact required to be extended to permit the application for leave to appeal and appeal. 16 Mr Rogers pointed to the Deputy President's failure to determine the issue of frustration as giving rise to a manifest denial of natural justice to Dr Ng. 17 Mr Rogers referred to the judgment of Wright J President, in LEP Pty Limited v Caine (1999) 97 IR 35 at [37], submitting that to the extent that his Honour observed that the conclusion that his Honour reached in that matter may not operate to enlarge the time for appeal where the question of costs is not initially dealt with, his Honour did not make an affirmative or "final finding". Counsel submitted that this specific issue was not argued before his Honour and that to the extent that his Honour reached this conclusion his Honour was wrong. 18 Counsel submitted that by the time Dr Ng was aware of the costs application, he was out of time. His instructing solicitor had formed the view, and advised Dr Ng that the time was enlarged as a result of the costs application. 19 Mr Rogers submitted that in the event that I determined that an extension of time was required, that the applicable principles were well known. Counsel referred to a judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 where his Honour set out the applicable principles. 20 Counsel further submitted, relying on a judgment of Moore J in Mooney v W & B Morieson Pty Ltd (1997) 145 ALR 224 at 226 that it is not necessary in all cases for there to be an acceptable explanation before time is extended. Moore J referred to the observations of Branson J in Vel v Human Rights and Equal Opportunity Commission (Fed C of A, 16 April 1997, unreported) where her Honour set out the principles enunciated by Wilcox J in Hunter Valley Developments Pty Ltd and then said: Hill J in Kim Hyun Tai v Bolkus (1996) 42 ALD 249 at 252 noted that the first of Wilcox J's guidelines requires modification since the Full Court decision of Comcare v A'Hearn (1993) 119 ALR 85; that is, that it is possible that the justice of a particular situation might require an extension of time even when the applicant fails to give an explanation for the delay. Hill J in Kim Hyun Tai v Bolkus at 252 stated: "Certainly it may be expected that an explanation will be given and the strength or otherwise of that explanation will be a relevant matter to be considered. So, too, would failure to give any explanation at all. But I would not wish to foreclose the possibility that the justice of allowing an extension of time was so great that failure to give an explanation operated to disentitle an applicant [sic] for review.'"

[17]

21 Mr Rogers further submitted that the absence of an extension requires there to be other circumstances militating in favour of an extension. Counsel conceded that no application for leave to appeal and appeal had been brought within the 21 days required by the Statute. As a concession, it was submitted, "that Dr Ng did not understand that he may be facing any costs application and was content to let the matter lie where it was, not because he expected to lose the appeal, but because he was willing to allow the matters to fall away as it were." 22 Mr Benson helpfully provided written submissions which may be summarised as follows: (i) the written judgment of Deputy President Harrison dated 18 July 2007 was "a decision" as that term applies in s 189(1) of the Act. See LEP; (ii) Wright J in LEP expressed the view at [23] that a wide construction ought be given to the word "decision" as it is used in s 189 (particularly in the context of non-judicial decisions of the Commission); (iii) on either a broad or narrow construction of the word "decision" the judgment of the Deputy President on 18 July 2007 falls within that term as used in s 189; (iv) Dr Ng was on clear notice on 18 July 2007 that his application had been dismissed, which determination was final subject to any appeal. The issue of costs had not been raised insofar as Dr Ng was aware. Accordingly, Dr Ng had 21 days in which to lodge any appeal he wished to make; (v) in LEP, Wright J observed that the term "decision" did not operate to enlarge the time for appeal where the question of costs was not initially dealt with; (vi) the fact that cost issues had still to be determined, did not affect the otherwise finality of the determination made by the Deputy President on 18 July 2007, subject to appeal rights; (vii) the Commission has a clear discretionary power to allow an extension of time for the lodging of an appeal made outside the statutory 21 day period: see Cavacuiti & Anor v Toyota Motor Corporation Australia Limited (2002) 122 IR 247 at [41]; (viii) Walton J noted in Cavacuiti at 257 some particular points of emphasis. In exercising the broad discretion whether to extend time relevant factors including the length of the delay; whether any prejudice will be suffered by the respondents by reason of a granting of the extension of time; whether there is a reasonable explanation for the failure to file the appeal within time; whether the delay was due to an error or mistake by a legal adviser and the prospects of Dr Ng succeeding in the appeal. However, the ultimate exercise of discretion is governed by the requirements of justice in the particular case; (ix) this is an unusual case because a clear inference can be drawn that Dr Ng was not anxious to be reinstated to the temporary appointment as a specialist oncologist. The evidence disclosed that he was ineligible to be so reinstated at the time of the hearing as he did not have the necessary registration as a medical practitioner in the State of New South Wales since October 2006; (x) the "real" appeal Dr Ng seeks to advance is in respect to the costs order; (xi) it is not clear from the affidavit of Mr Fitzpatrick that any consideration was given to the question of appeal within the prescribed time. The fact that a view was formed after the appeal period had expired, that time would run until the costs issue was determined, was clearly not a matter considered during the relevant statutory appeal period. Accordingly, little weight in discretionary terms, should be given to this; (xii) the prospects of Dr Ng succeeding on the appeal are remote; (xiii) the evidence discloses that Dr Ng no longer resides in New South Wales; has not since October 2006 been registered as a medical practitioner, and does not hold a visa to work as a medical practitioner in New South Wales at the present time; (xiv) the requirements of justice do not warrant the granting of an extension of time. Principles

[21]

(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." 24 This decision was followed by Walton J Vice-President in Cavacuiti & Anor v Toyota Motor Corporation Australia Limited. 25 Walton J Vice-President, in applying the above principles in Cavacuiti noted: [42] In applying those principles to this matter I note some particular points of emphasis: 1. The exercise of the Commission's discretion to extend time to appeal is not constrained by the requirement of some court rules that special circumstances be demonstrated: Brady v Kennedy (t/as "Sardines") at 264.

[23]

[43] Accordingly, whilst I shall consider the principles agreed to by the parties and referred to earlier in the decision, in determining the application to extend time I shall ultimately be governed by the requirements of justice in this particular case. 26 I intend to apply these principles, to the extent relevant, in considering this application, recognising that the ultimate determination by the Commission is to ensure that the interests of justice are served. Consideration 27 The question that falls for consideration in this matter is whether the time to appeal is enlarged where the question of costs is not initially dealt with at the conclusion of the substantive proceedings, but determined at a later time. In my view, this question should be answered in the negative for the following reasons. 28 The relevant statutory provision is to be found in s 189 of the Act which provides as follows: (1) An appeal to a Full Bench of the Commission under this Part must be made within 21 days after the date 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. 29 Rule 45 of the Industrial Relations Commission Rules 1996 ("the Rules") is also relevant and provides: Interlocutory decisions Any decision made in any proceedings before a tribunal prior to a final decision in those proceedings is to be taken for the purposes of appeal to have been made on the same date as the date of the final decision. 30 This Rule reflects the general law as set out in some of the very early judgments of the High Court of Australia, which dealt with the right to appeal from an interlocutory judgment: see Nolan v Clifford (1904) 1 CLR 429 at 431 per Griffith CJ; Crowley v Glissan (1905) 2 CLR 402 at 403 per Griffith CJ. 31 The rule was more recently stated by the High Court in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 483 (Gaudron, McHugh and Hayne JJ) to be not as wide as stated in Nolan v Clifford and Crowley v Glissan. Their Honours observed as follows: [5] It is not surprising, then, that in at least some circumstances, a party may challenge the correctness of the final judgment entered in a matter on the ground that some interlocutory decision was wrong. Again, evidentiary rulings provide the obvious example ( Bunning v Cross (1978) 141 CLR 54 at 82, per Jacobs J). As was said, in a very early judgment of this Court ( Crowley v Glissan (1905) 2 CLR 402 at 403, per Griffith CJ): "There is only one judgment of the Court appealed from ... and on the appeal all grounds that were taken by the appellant in the course of the proceedings are open to him." As Griffith CJ had said earlier, in the course of argument in Nolan v Clifford : "On an appeal from a final judgment, all points raised in the course of the case are open to the unsuccessful party. If a point is decided against him on an interlocutory application, there is no need for him to keep on raising it." In both Nolan v Clifford and Crowley v Glissan reference was made to Maharajah Moheshur Sing v Bengal Government as authority for the proposition stated.

[25]

32 In my view, particularly in respect of proceedings before the Commission where costs are not the norm, the final decision, cannot be a costs decision, but rather the final decision must be in respect of the substantive proceedings. This conclusion is consistent with the obiter dicta expressed by Wright J in LEP where his Honour observed: [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." 33 It follows, consistent with the principle set out by the High Court in Gerlach, that in any appeal against substantive proceedings, a party could challenge any interlocutory decision that affected the final result. A decision in respect of costs does not give a right of appeal to an earlier final decision, particularly a decision dealing with the substance of the proceedings. 34 In light of the conclusion that I have reached, the question becomes: should the application for an extension of time be dealt with? In determining this question, I propose to be guided by the principles, to the extent relevant, set out earlier in Cavacuiti. A relevant consideration is the submission made by Mr Rogers that Dr Ng was content to let the matter rest where it was when he was not facing a costs application. Although not decisive, this is a relevant consideration. 35 However, the main issue, in my view, is the overlap or the relationship of the issues between the costs appeal and the substantive appeal. 36 Counsel for Dr Ng made clear that he wants to argue the frustration of the contract point, which is only raised marginally in the costs appeal. Clearly, it appears that if an extension of time is granted, there will be a materially larger set of appeal proceedings. For example, if the appeal is only in respect of the decision in respect of costs, it could be heard on the papers. I make this observation without in any way attempting to bind the Full Bench. However, such an approach would be unlikely if the appeal against the substantive decision was also to be heard. 37 Accepting that the major question that discloses error was the failure by the Deputy President to deal with whether the contract of employment was ended by frustration, it is difficult to see how this would have affected the outcome of the proceedings. I agree with Mr Benson's submissions that the prospects of Dr Ng succeeding in the substantive appeal are remote. 38 The Deputy President's central finding was that it was the initiative of Dr Ng which brought the employment relationship to an end which was soundly based on the evidence: see [31] - [32] of the decision. The Deputy President correctly found in my view, at [33], that the contract of employment was in accordance with the relevant award which provided exclusively for employment of qualified medical practitioners as specialist oncologists. It would be an extraordinary proposition and indeed unlawful, for the employment of a person as a specialist oncologist in New South Wales where that person was not registered as a medical practitioner in this State. The evidence discloses that Dr Ng no longer resides in New South Wales and has not, since October 2006, been registered as a medical practitioner in New South Wales. Further, Dr Ng does not hold a visa to work as a medical practitioner in New South Wales at the present time. The evidence discloses that Dr Ng was ineligible to be reinstated at the time of the hearing and his status remains unchanged. 39 In these circumstances, I find that Dr Ng has negligible prospects of success in respect of the substantive appeal. I refuse the application to extend the time to lodge an application for leave to appeal and appeal against the decision given by Deputy President Harrison on 18 July 2007. ORDERS 1. The notice of Motion is dismissed.