Robar Enterprises Pty Ltd v Bargwanna

DECISION OF THE COMMISSION 1This matter concerns an appeal by Robar Enterprises Pty Ltd ("the appellant") from an ex tempore decision of Backman J given on 8 June 2012. In the decision her Honour granted an extension of time under s 213(4) of the Industrial Relations Act 1996 ("the Act") with respect to an application by Darren Roger Bargwanna ("the respondent") to enforce rights under s 210 of the Act. 2When the matter came on for hearing on 12 September 2012 the Full Bench called on the parties to address the question of leave to appeal as a threshold matter. Having heard the parties the Full Bench refused leave. What follows are short reasons for that refusal. 3Mr Bargwanna was a lorry owner-driver who was engaged by the appellant pursuant to a contract of carriage regulated under Ch 6 of the Act. He became involved in a dispute with the appellant that was the subject of conciliation proceedings in the Commission. The respondent was represented by his union the Transport Workers' Union of NSW ("TWU"). The dispute was not resolved and on 12 January 2012 the dispute escalated. 4On 13 January 2012, the TWU had sought to have the dispute re-listed before the Commission and there had been some discussion with the appellant's legal representatives about settlement of the dispute. However, by letter dated 31 January 2012, the appellant terminated Mr Bargwanna's engagement. On 2 February 2012, the TWU filed an application under s 314 of the Act on behalf of the respondent seeking his reinstatement with backpay or, in the alternative, compensation. 5On 27 February 2012, the s 314 application was the subject of an unsuccessful conciliation conference before Backman J. Later that day, a TWU organiser, Mr Ken Hurst, became aware for the first time of s 210 of the Act, and realised it might be of assistance to Mr Bargwanna's claim. He discussed the matter the next day with a TWU legal officer, who told him that the matter might be out of time, but that he should raise it at the next conference before Backman J on 6 March 2012. 6In conciliation proceedings concerning the s 314 application on 6 March 2012, the TWU applied for the matter to be stood over for seven days while it considered whether to make a s 210 application. That application was not opposed, and was granted by Backman J. The s 213 application was subsequently filed on 8 March 2012, 16 days out of time. 7Section 213(4) of the Act provides: (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought. 8In her decision Backman J considered each of the three factors in s 213(4). In respect of the reason for, and the length of, the delay in making the application her Honour found that it was not a lengthy delay. In respect of the reason for the delay her Honour noted it was essentially ignorance of the existence and availability of s 210 and considered that on the state of the authorities this may not be an "acceptable reason". However, Backman J noted what was said by the Full Bench in Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139; (2003) 125 IR 145: [12] Having made that observation, a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3) - (4) of the Industrial Relations Act 1991) in this way: Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view. [13] Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice President in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case". [14] To arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues, such as the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual circumstances giving rise to late lodgement, including any attempts to lodge an application. The Commission needs only to be satisfied that there is a "sufficient reason" to accept the late application, having "particular" regard to the matters identified. When viewed in that way, the maxim concerning ignorance of the law emerges as even less relevant than otherwise may be the case. The use of the maxim in applications to extend time in unfair dismissal matters has the real potential for error, as this matter highlights. 9As for hardship, Backman J found that the respondent's evidence regarding personal and financial hardship was a factor to be taken into account in Mr Bargwanna's favour. 10As to the third factor, the conduct in relation to which the order is sought, her Honour found that taking Mr Bargwanna's evidence at its highest his application had some prospect of success. In granting the out of time application her Honour found it was "finely balanced".