Prehn v Department of Environment and Conservation

CATCHWORDS: Appeal - Victimization - Appeal against decision of Deputy President - Out of time application - Application for return to work orders - Procedural ruling on order of proceedings - Significance of internal disciplinary process to time of application - Application held out of time - Appeal from discretionary decision - Leave to appeal refused.

LEGISLATION CITED: Industrial Relations Act 1996

Brady v Kennedy t/as "Sardines" (1999) 91 IR 258 Commonwealth of Australia; Ex Parte Marks, Re (2000) 177 ALR 491 DAS v Minister for Immigration and Multicultural Affairs (2004) 208 ALR 229 Healey v HPA Pty Ltd (2003) 125 IR 227 CASES CITED: Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 Hurrell v Queensland Cotton Corporation (2003) 125 IR 14 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202 Prehn v Department of Environment and Conservation [2006] NSWIRComm 222

HEARING DATES: 14 November 2006, 20 February 2007 EXTEMPORE JUDGMENT DATE: 20 February 2007

APPELLANT: Ms A Prehn, self-represented

LEGAL REPRESENTATIVES: RESPONDENT: Mr S Prince of counsel Ms J Burton Crown Solicitors Office

CORAM: WRIGHT J, President WALTON J, Vice-President HARRISON DP Tuesday 20 February 2007

ANNETTE PREHN AND STATE OF NEW SOUTH WALES (DEPARTMENT OF ENVIRONMENT AND CONSERVATION)

Application by Annette Prehn for leave to appeal and appeal against an interlocutory decision of Deputy President Grayson given on 24 July 2006 and against a decision of Deputy President Grayson given on 21 April 2006, both in matter no. IRC 840 of 2005

DECISION OF THE COMMISSION Extempore [2007] NSWIRComm 34

1 On 24 July 2006, Deputy President Grayson dismissed the application of the appellant, Annette Prehn, for relief against victimisation under s 213 of the Industrial Relations Act 1996 ("the Act") on the basis that there were not sufficient grounds for an extension of time for the filing of her application and, as such, the application was incompetent: Prehn v Department of Environment and Conservation [2006] NSWIRComm 222. 2 The decision of Grayson DP arose from an application by the respondent to dismiss the appellant's application for relief from victimisation on the basis that it was out of time or in the alternative, on the grounds that the application did not identify any act of victimisation or any causative connection between any alleged act of victimisation and any of the protected acts set out in s210(1) of the Act. The application to dismiss was heard at an interlocutory stage prior to any consideration of the merits of the appellant's application. 3 The appellant's original application for relief from victimisation related to claims that she was victimised by the respondent when it commenced an investigation into allegations of misconduct against the appellant, which the appellant contended was instituted following her making complaints of the type protected under s210(1). The appellant also alleged in an affidavit, but not in her amended application, that she was victimised when she was refused progression to a higher level in a ranger classification structure. 4 Subsequent to the respondent filing its notice of motion seeking dismissal of her application, the appellant sought to have a notice of motion heard (this relates to the appeal in matter no IRC 2339 of 2006) seeking return to work orders. On 21 April 2006, Grayson DP refused to hear the appellant's motion prior to hearing the respondent's motion. The appellant has sought to appeal his Honour's decision in this regard and on 4 September 2006 the Vice-President ordered that both appeals be heard at the same time. 5 At the present time, the appellant, having previously been on long service leave, is on leave without pay apparently allowed by the respondent. She has advised today that she has also obtained temporary employment as a Ranger in Tasmania. 6 The principles governing, and the approach to, applications for leave to appeal are well settled and do not need to be restated: see Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380, Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263. However, the comments of the Full Bench in Hosemans are apposite to the issues arising in these proceedings: However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188 (2) of the Act , will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. 7 As the present application has unfolded in the parties' oral and written submissions, the central issue on appeal is whether Grayson DP erred in finding that the appellant's claim was filed out of time and, on that basis, in dismissing the appellant's application for relief from victimisation. A further issue is whether Grayson DP properly considered the appellant's application for extension of time. 8 In essence, the appellant has sought leave to appeal in Matter No IRC 2937 of 2006 on the basis that:

(a) her application is not out of time when viewed in the context of the letter of 27 January 2005 from Ms Corbyn, the Director General of the respondent, to her responding to the appellant's request for intervention from Ms Corbyn; and

(b) her delay is explained by reference to the internal grievance process she followed and it was only on the completion of that process that she sought relief from victimisation. 9 For the reasons which follow, we refuse leave to appeal in that matter. Taking each of the appellant's submissions in turn:

10 The appellant, in her application for leave, contended that her application was not out of time as the letter of 27 January 2005 should be viewed as the final step in the internal grievance process and it was only after that letter was received that an application for relief from victimisation could be made. Before Grayson DP, the appellant sought to rely on this letter as the last act of victimisation and as such the application was not out of time. 11 As to the contention at first instance, his Honour concluded: Moreover and as Mr Prince submitted, it has been clearly alleged by Ms Prehn that it was the instigation of the disciplinary action against her in 2003 which constituted the prohibited act and it was therefore open to Ms Prehn to commence victimisation proceedings at that time. On a proper reading of the Director General's letter to Ms Prehn of 27 January 2005, it is firstly a response to Ms Prehn's earlier letter seeking to persuade the Director General to intervene in the outcome of the disciplinary process: Secondly, it is a recitation by the Director General of the state of affairs as she viewed them ( including the observation that Ms Prehn had commenced proceedings in the Government and Related Employees Appeals Tribunal seeking the same remedy) and thirdly, it is advice that Ms Prehn had advanced no new material which would warrant the Director General's intervention. In my opinion, it cannot be said without more, that the Director General's letter constituted a separate or discrete act of victimisation given that its effect was no more or less than a refusal to intervene in or disturb the 2003 disciplinary process and it cannot therefore be relevant to the determination of when time commences to run for the filing of an application for relief from victimisation. One could otherwise imagine disputing parties entering into continuing and fruitless correspondence seeking to alter an earlier course of events and thus, extending time indefinitely, in a way which would render the statutory time limitation meaningless. 12 On either bases as to the significance of the 27 January letter, we consider that the appellant's submission amounts to a challenge of his Honour's finding of fact as to the nature of the letter, a finding which we consider was reasonably open on the facts. Specifically, we do not accept the appellant's contention that the victimisation crystallised on 27 January after it was clear the dispute resolution process was unsuccessful. Accordingly, we do not accept that this issue provides a basis for granting leave. We also agree with the submission of Mr Prince, counsel for the respondent, that the appellant developed for the first time on appeal the contention that the 27 January letter was the final step in the internal disciplinary process and not merely the final step in a chain of victimisation. This is a further basis on which leave should be refused, as it is well settled that leave to appeal will not be granted to deal with arguments that were not squarely raised at first instance: Knowles v Anglican Church Property Trust (No 2) at 381-82. In any event, the letter could not properly be treated in the manner contended by the appellant. Delay explained by internal grievance process 13 It appears from the appellant's submission that she seeks to contend that her delay from the alleged acts of victimisation to the time of filing an application for relief from victimisation is because of her pursuit of the internal grievance process and that it was only on completion of that process that she considered it appropriate to make an application for relief from victimisation. 14 Grayson DP dealt with this argument in the following terms: Mr Prince for the employer submits, correctly in my view, that pursuit of other avenues of review such as internal grievances will not preclude the operation of the time limitation nor of itself excuse delay (see DAS v Minister for Immigration and Multicultural Affairs (2004) 208 ALR 229 at [11] and Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [13] to [16] per McHugh J). 15 The appellant has not challenged the correctness of this finding or the construction of the section upon which the finding was based. We consider the construction of the section is undoubtedly correct and we consider that her contention on this issue is in any event essentially a contention that Grayson DP failed to properly exercise his discretion to refuse an extension of time application. 16 In this respect, Grayson DP referred to the decision of Sams DP in Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202 in which Sams DP discussed a number of other authorities on the question of delay. We can find no error of principle, in that respect, as his Honour was effectively applying the approach taken by this Commission in Healey v HPA Pty Ltd (2003) 125 IR 227, Hurrell v Queensland Cotton Corporation (2003) 125 IR 145 and Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. These cases emphasise that it is necessary to consider the various reasons advanced for delay: see Healey at [16] and that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case": see Brady at 265 per Walton J. 17 Having carefully considered his Honour's analysis of the reasons for delay and the balancing of considerations of hardship (at [15]), we do not consider that the exercise of the discretion by Grayson DP was attended by any appellable error. The application was considerably later than the alleged acts of victimisation and the appellant has not, whether before Grayson DP or on appeal, provided any explanation as to the reason for the delay other than by reference to the internal grievance process. She has not, for instance, tendered medical evidence which explains the delay (the medical evidence which was relied upon by the appellant essentially went to other considerations) . 18 We note in this regard that the appellant did not seek to contend that she was not aware of the time limitation period, which is a relevant factor in considering an extension of time: see Hurrell v and Queensland Cotton Corporation. Indeed, as the respondent contended the appellant's submissions regarding the 27 January 2005 letter would suggest that she was aware of the time limitation period. 19 We wish to comment briefly on his Honour's finding that the pursuit of other avenues of review such as internal grievance processes will not of itself excuse delay (see DAS v Minister for Immigration and Multicultural Affairs (2004) 208 ALR 229 at [11] and Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [13] to [16] per McHugh J). Consistent with the comments of McHugh J in Re Commonwealth, we consider that there may be circumstances where the pursuit of other processes may provide an adequate reason for a delay in commencing proceedings. We agree with the respondent, however, that such circumstances do not exist in the present situation. 20 While the result may cause hardship for the appellant, this must be balanced against principles of finality in litigation, the difficulty of mounting and challenging a case based on evidence extending back a number of years and the appellant's limited prospects for success in her primary application. We are not satisfied that Grayson DP was in error in exercising his discretion to refuse to extend the time limitation period. 21 We also refuse leave to appeal in Matter No IRC 2339 of 2006. Whilst the submissions of the appellant sought to characterise this appeal as an appeal from a decision by Grayson DP refusing her interlocutory application, we consider that, when properly analysed, the appeal arises from a decision of Grayson DP to refuse to hear the application for interlocutory relief before the strike out motion of the respondent (the subject of the appeal in Matter No IRC 2937 of 2006). In other words, we consider that his Honour's decision went only to the order in which the motions of the parties would be heard. We consider that this interlocutory decision was entirely open to the Deputy President given the nature of the respondent's motion which, if successful, would have (and did) obviate the need to hear the application for interlocutory relief. We further consider, in this respect, that there should have been some real reluctance in hearing the interlocutory application first, given the significant jurisdictional challenges mounted by the respondent to the victimisation application. Nothing in the dispute settlement provisions of the relevant awards warrants some different conclusion.

22 Finally, we note that the appellant sought the admission of fresh evidence to show that if the remedial work orders are not changed, she would suffer hardship. We rejected that application on 14 November 2006. The appellant did not demonstrate that special grounds existed pursuant to s191(2) of the Act warranting the grant of such leave. Whilst it was possibly relevant to issues that arise under s 213 (4), it was, in essence, merely an elaboration of evidence already brought as to hardship (see s 213 (4), and did not seek to address any fresh issue as to a reason for the appellant's delay. We did, however, grant the adjournment sought by the appellant at that time in order to give her additional time to prepare her case.

23 We make the following orders in both Matter No IRC 2937 and IRC 2339 of 2006:

1 Leave to appeal refused; 2 Appeal dismissed. __________

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