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[2008] NSWIRComm 69
Industrial Relations Commission (NSW)
2008-04-07
Backman J, Mr J, Mr P
Original judgment source is linked above.
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Raymond John Carlin
Access Elevators Australia Pty Ltd
(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 therefore 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 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 ER9 33 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. 11 I propose to grant the application to extend time. In my view Mr Carlin has offered an acceptable explanation for the delay in filing the appeal and the application for leave to appeal has reasonable prospects of success. The present matter bears a number of similarities to the decision of Faber v Greyhound. In that decision the Full Bench held that it was not sufficient for the purposes of s 371 of the Act for the Chief Industrial Magistrate to have ensured without further active participation that counsel representing the respective interests of the parties had engaged in a proper process of settlement and been given adequate opportunity to do so. The Full Bench adopted the observations of his Honour, Justice Wright, President, in Yetzotis v Crown in Right of State of New South Wales (Commissioner of Corrective Services) (2005) 147 IR 50 where his Honour said:
(2007) 166 IR 122
(1996) 70 IR 298
(2005) 147 IR 50
(1979) 24 ALR 522
(1962) 36 ALJR 200
(2006) 158 IR 269