Singh v Legal Aid New South Wales

Whether the Commission has discretion to extend time

1. Before examining what may be drawn from those facts I turn to the question of whether, as Mr Singh argued, the Commission has a discretion to extend time for the lodgement of an appeal brought pursuant to s.98 of the Act.
2. Section 100B(2) of the Act, which I have set out above, provides that an appeal 'must' be lodged within the specified time limit. There is no provision in the Act that expressly provides for a discretion in the Commission to extend time in relation to an appeal under s.98.
3. The question then becomes whether there is an implied discretion in the Commission to extend time for an appeal brought under s.100B.
4. To touch briefly on the relevant principles of statutory interpretation, first, as Mr Singh correctly submitted, the Act must be read with a purposive approach: Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 293 ALR 412.
5. Second, the Act is remedial legislation and is to be read beneficially: Bull v Attorney-General for New South Wales (1913) 17 CLR 370 at 384. What the High Court went on to say in Bull is to be borne in mind: 'This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed as to give the fullest relief which the fair meaning of its language will allow.' Nothing that has been said by the Court in subsequent cases concerning statutory construction detracts from that fundamental proposition.
6. Mr Singh argued that an implied discretion to extend time for an application to be made pursuant to s.98 should be read into the words of, or additionally to the words of, s.100B(2).
7. In essence Mr Singh based that submission on the propositions that the objects of the Act are to promote justice and fairness; that the Act is beneficial legislation and should be construed as broadly as possible to that end, and, as he developed in oral argument, the overriding effect of the provisions of s.163(1)(c), that is that the Commission is bound to act according to equity, good conscience and the substantial merits of the case, and without regard to technicalities and legal forms.
8. Mr Singh submitted that if the Act were not so read, that would prevent him from challenging the respondent's decision to terminate his employment. Mr Singh submitted that that would 'violate [my] fundamental right of access to justice. That cannot be the intention of the legislature".
9. Mr Singh developed this latter argument in oral submissions.
10. In my view, there is no discretion in the Commission to extend time to an application made pursuant to s.100B(2). I reach that conclusion on these bases.
11. First, the words of the statute itself. There are, as I say above, no words in the Act which suggest any power to extend time to an application under s.100B(2).
12. There are, on the other hand, provisions of the Act addressing the same kinds of proceedings before the Commission where the Parliament has seen fit to confer in terms such a power: s. 85 (going, relevantly, to unfair dismissal); s.108B; s.189 (again relevantly, going to appeals generally); and s.213. In each case the power to extend time is expressed in terms. I am unable to see that in those circumstances the failure to provide a power to extend time pursuant to s.100B(2) is an oversight.
13. Reading the Act as to give the fullest relief which the fair meaning of its language will allow, I cannot see that the Act can be read to include a provision of such fundamental importance - that is, the conferring of jurisdiction which does not on the face of the statute exist - in its absence, noting that the Commission errs if it wrongly construes a statutory provision so as to assume a jurisdiction it does not have: Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531.
14. I am fortified in that reasoning by the decision of the Court of Appeal in Secretary of Department of Health (NSW) v Harvey (1990) 34 IR 58. That is a decision in relation to s.29(2) of the Government and Related Employees' Appeal Tribunal Act 1980, which is the predecessor legislative provision to, and relevantly indistinguishable from, s.100B(2). Addressing that section, the Court held: 'The Act does not enable the time for appealing to be extended. Moreover the Tribunal has held that the time limit fixed by s.29(2) is mandatory and goes to the jurisdiction of the Tribunal to hear the appeal. The respondent did not contend otherwise and this view is supported by the decision in Patterson v The Public Service Board [1984] 1 NSWLR 237; 6 IR 468 where it was held that the time limit fixed by s.55 for appealing to this court form a decision of the Tribunal was mandatory and there was no power to extend it.' (at 59).
15. In my view the reasoning in Harvey is precisely analogous to this case. In Harvey Meagher JA summarised the matter as follows: 'The Act means what it says, and, more important, it does not mean what it does not say'. (at 58). In my view that pithy summary of the fundamental precepts of statutory construction is precisely apposite here. 'The necessary first step in the construction of any statute is a consideration of the ordinary and grammatical meaning of the words in the context of the statute as a whole': Lloyd's loc cit. The Act does not say that it confers a discretion to extend time and it does not so confer.
16. I observe that other decisions of the Commission have held that the equivalent provisions in s.100B(1) of the Act require strict adherence and allow of no discretion to extend time: Kanta v NSW Police [2011] NSWIRComm 1022; Singh v NSW Police [2011] NSWIRComm 1047. In the latter Macdonald C held: 'The term "must" is mandatory language and requires strict adherence. Further, this section 100B does not contain any provision stating that the legislature is giving a discretion to the Commission to accept late filed appeals.'
17. Those decisions do not bind me but in my view they are correct.
18. Mr Singh's central argument, that the statute should not be read to deprive him of a right to justice, was supported by a number of common law authorities. And true it is that the legislature is not to be taken to deprive a person of access to courts to pursue a common law right, other than by clear words so stating: Public Service Association of South Australia v Federated Clerks' Union of Australia (SA Branch) (1991) 173 CLR 132 at 160 per Dawson & Gaudron JJ, noting that that was a case about a privative clause.
19. But the matter of fundamental importance in this case is that here there is no 'right to justice' other than that conferred by the Act. That right is not a common law right. Section 98 of the Act confers a right created and conferred by statute alone. That right does not exist except so far as the Parliament provides it and it only exists on the terms that the Parliament provides.
20. It is, in fact, contrary to Mr Singh's submission, precisely the intention of the legislature to deprive a person of the statutory right granted under s.98 of the Act if the appeal under that section is not lodged within time.

The date on which the respondent notified Mr Singh of the decision he now seeks to appeal

1. As it is clear in my view that the statutory time limit cannot be extended, the question is then on what date the employer notified Mr Singh of the decision to dismiss him.
2. For clarity I repeat that 21 October 2013, the date upon which the appeal was filed, is 31 days after 20 September 2013. It is 28 days after 23 September 2013. If the employer notified Mr Singh of its decision on 20 July 2013 his appeal is out of time and cannot be accepted. If it notified him on 23 September his appeal is within time.
3. The answer, given the facts set out above, lies in the provisions of the Electronic Transactions Act 2000. ('the ET Act')
4. The object of the ET Act, contained in s.3 of the Act, is to provide a regulatory framework that facilitates the use of electronic transactions, promotes business and community confidence in the use of electronic transactions, and enables business and the community to use electronic communications in their dealings with government.
5. Section 8 of the ET Act is in the following terms: 8 Writing (1) If, under a law of this jurisdiction, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where: (a) at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference, and (b) the person to whom the information is required to be given consents to the information being given by means of an electronic communication. ... (5) For the purposes of this section, "giving information" includes, but is not limited to, the following: (a) making an application, (b) making or lodging a claim, (c) giving, sending or serving a notification, (d) lodging a return, (e) making a request, (f) making a declaration, (g) lodging or issuing a certificate, (h) making, varying or cancelling an election, (i) lodging an objection, (j) giving a statement of reasons.
6. It will be seen that 'giving, sending or serving a notification' is expressly contemplated by subs.8(5) of the ET Act.
7. There is a dual gateway through which a sender must pass in order for s.8 to be held to have effect. That is set out in subss. 8(1)(a) and (b).
8. At the time the information was sent, the respondent knew Mr Singh had an email address and knew that there had recently been a substantial volume of correspondence between it and Mr Singh, to and fro, by email. It was therefore 'reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference.'. The first gateway under subs.8(1)(a) is passed.
9. At the time the information was sent, the respondent knew that Mr Singh had chosen to initiate correspondence with the respondent, and had acted on information sent to him by the respondent, by email. That included matters going to this disciplinary matter and, on the facts above, on other matters initiated by Mr Singh.
10. It is necessary here to address the meaning of 'consent' for the purposes of the ET Act.
11. That is set out in s.5 of the ET Act. That section relevantly provides: "consent" includes consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with.
12. Mr Singh argued that he had not consented to receiving any material by email. In my view that is not the case. It is not borne out on the facts.
13. It is certainly true that Mr Singh twice told Mr Cordell of the respondent that he did not wish to have extensive materials sent to him by email, for reason that he did not have a facility to print them. That is not itself an indication that emails are not consented to; on the contrary, it is a specific objection to the sending of certain limited kinds of emails, and therefore not to others or emails at large. Mr Singh on his own evidence told Mr Cordell that he did not want extensive materials because he could not print them. It would have been easy to say, 'I do not want to receive anything from you by email' if that were Mr Singh's position. That was not said; rather a limited range of emails was not consented to for a specific reason.
14. Second, and significantly, Mr Singh after the two occasions on which he conveyed his position regarding extensive materials to Mr Cordell continued to receive and initiate email communications from and to the respondent.
15. Mr Singh's argument that he was compelled to do this for reason of tight time frames does not overcome the consent that he gave by choosing to send and receive this kind of communication. There is no disclaimer to that effect in the emails; more importantly, the email series Mr Singh initiated about his increment cannot be said to have been compelled by a rigid time frame. Mr Singh used email because it was convenient, as he was perfectly entitled to do. He accepted the replies he received by email, as he was perfectly entitled to do.
16. In doing so he permitted consent to email communications reasonably to be inferred from his conduct. The second gateway pursuant to subs.8(1)(b) is passed.
17. Accordingly, the respondent was able to provide a notification to Mr Singh by email.
18. Two further questions then arise, however.
19. The first is the date on which the email containing the notification was provided to Mr Singh. As noted above, his evidence was that he first saw and opened the email on Monday 23 September 2013. That evidence was unchallenged in cross-examination. The unchallenged evidence was also that the notification was sent to Mr Singh by the respondent on 20 September 2013.
20. Clearly the answer is not that the respondent notified Mr Singh only when he opened his email. There are manifest public policy considerations why the Act could not be construed in that way; if it were so construed, a person could decline to be made aware of a notification and thereby frustrate the effect of the Act simply by declining to open an email, or analogously, by declining to open a letter.
21. Again, it might be thought that given that the email was sent to Mr Singh on 20 September, and that it was not contested that it was on that day received by him in his email system, the position must be as a matter of common sense that receipt of the notification was on 20 September, regardless of when Mr Singh opened the email.
22. However, while in my view both the above propositions would serve as a basis for determining the question, a definitive answer is provided by the ET Act at s.13.
23. That section relevantly provides as follows: 13 Time and place of dispatch and receipt of electronic communications (1) For the purposes of a law of this jurisdiction, if an electronic communication enters a single information system outside the control of the originator, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the dispatch of the electronic communication occurs when it enters that information system. (2) For the purposes of a law of this jurisdiction, if an electronic communication enters successively 2 or more information systems outside the control of the originator, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the dispatch of the electronic communication occurs when it enters the first of those information systems. (3) For the purposes of a law of this jurisdiction, if the addressee of an electronic communication has designated an information system for the purpose of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication enters that information system.
24. It will be seen that subs.13(3) has the effect that a communication is received when it enters the recipient's information system. Mr Singh provided, at Annexure G to his submissions and bundle of evidence, a printout of the relevant email communication. It shows it arriving in his information system at 1:47 pm on 20 September. By contrast, the copy provided by the respondent shows the communication being sent at 1:48 pm that day. The difference is due to the different clock settings in the two different information systems, Mr Singh's and the respondent's.
25. The decision of the Supreme Court in Austar Finance v Campbell [2007] NSWSC 1493, called in aid by Mr Singh, turned on different facts concerning the recipient's email server. Further, and more importantly, that case did not fall within the compass of the ET Act because it did not deal with 'a law of this jurisdiction' but rather the Corporations Act 2001 (Cth).
26. Mr Singh argued against the application of the ET Act at all to the circumstances of this case, on the basis that the objects of the ET Act 'clearly indicate that the legislation only caters for dealings pertaining to commercial and business transactions/communications and to transactions of a polycentric nature.' I have set out the Object of the ET Act above.
27. The ET Act is to be interpreted as is any other statute, by the adoption of a purposive approach. On its face the terms of the ET Act would not appear to support Mr Singh's contentions, on a purposive approach to the ET Act. But it is also permissible to have regard to extrinsic materials to understand that purpose; here, most relevantly the Second Reading Speech. To the Parliament, the Minister said: The purpose of the bill is to provide a regulatory framework that recognises the importance of the information economy to the future economic and social prosperity of Australia, facilitates the use of electronic transactions, promotes business and community confidence in the use of electronic transactions, and enables business and the community to use electronic communications in their dealings with government. ... The bill is based on two basic principles. The first is media neutrality, which means that paper-based commerce and electronic commerce should be treated equally by the law. The second is technology neutrality, or the idea that the law should not discriminate between different forms of technology. The bill first establishes the general rule that, for the purposes of the law of New South Wales, a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications. In addition, the bill provides that a person who is permitted to give information in writing or produce a document may instead, with the consent of the recipient, give that information or produce that document in electronic form.
28. There is no basis upon any reading of the ET Act to hold it to be limited to commerce, or to polycentric communications. On the contrary, on its face and on the basis of the relevant extrinsic materials, the ET Act covers all transactions that might be made in writing, including specifically 'notifications' by a single person to a single recipient.

Alternative basis for conclusion

1. Were I wrong about the application of the ET Act, in my view the fact that the email containing the notification was sent to Mr Singh's known email address on 20 September 2013, and it was not in any way said by Mr Singh that the email did not appear in his email system on that day, but only that he did not see it and open it until later, would lead to precisely the same result; the notification was received on 20 September 2013.

Summary and conclusion

1. It follows from what I have set out above that, first, Mr Singh's appeal must be filed within 28 days of the day upon which he was notified of the decision, without capacity for extension of that time.
2. Second, it follows from what I say above that Mr Singh received the notification of the decision he seeks to appeal on 20 September 2013.
3. As Mr Singh's appeal was filed on 21 October 2013, it was filed 31 days after he received the notification of the decision.
4. Hence Mr Singh has not lodged his appeal within the mandatory period established by s.100B(2) of the Act. There is no power to extend that period. That being the case the Commission has no jurisdiction to hear and determine Mr Singh's appeal.
5. The Commission is therefore in the position of any court with an application before it over which it has no jurisdiction. I have only one power and that is the power to dismiss the application. I am obliged to do so, for the reasons I have given.

Orders The appeal by Mr Andrew Moti Singh against a disciplinary decision taken by Legal Aid New South Wales is dismissed. PETER NEWALL Commissioner

Amendments 29 April 2015 - Coversheet/Representation details amended to read: "Mr Andrew Moti Singh - applicant in person M J Easton, counsel - respondent " DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2015