Smith v Industrial Relations Secretary in respect of Local Land Services

Industrial Relations Commission (NSW)|2024-05-02

DECISION

On 3 November 2023, Commissioner Muir handed down his decision in Patricia Smith v Industrial Relations Secretary in respect of Local Land Services [2023] NSWIRComm 1110 ("First Instance Decision"). In that decision, the Commissioner dismissed for want of jurisdiction an application that Patricia Smith had made for reinstatement to her employment with Local Land Services pursuant to s 242 of the Workers Compensation Act 1987 ("WC Act").
Ms Smith applied for leave to appeal and, if leave were granted, to appeal the First Instance Decision ("First Appeal Application"). That application was heard by the Full Bench on 6 March 2024. At the conclusion of the hearing, the Full Bench handed down its decision, which was to refuse to grant Ms Smith leave to appeal. The parties were informed that the reasons for the decision would follow. Those reasons were set out in Smith v Industrial Relations Secretary in respect of Local Land Services (No 2) [2024] NSWIRComm 1015 ("Full Bench Reasons"), published on 8 March 2024.
On 13 March 2024, Ms Smith filed a further application for leave to appeal, and if leave were granted, to appeal the First Instance Decision ("Second Appeal Application"). That application was brought pursuant to s 187 of the Industrial Relations Act 1996 ("IR Act"). Under s 189(1) of that Act, an appeal to the Full Bench must be made within 21 days after the date of the decision appealed against, unless the applicant is granted an extension of time.

Ms Smith was self-represented

In the Full Bench Reasons, the Full Bench observed: "3. Ms Smith was self-represented. We are conscious of our obligations in respect of an unrepresented litigant, and were guided by the observations of the Court of Appeal in Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [309]-[313] including that: (1) courts have an overriding duty to ensure that a trial is fair, which entails ensuring that the trial is conducted fairly and in accordance with law. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented; (2) the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties; and (3) it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant. 4. We are satisfied that Ms Smith had a proper opportunity to put forward her case, in both written and oral submissions to the Full Bench, and that there was a fair hearing on the question of leave to appeal for both parties."
We adopt the observations at [3] of the above extract and are guided by the same considerations. We are similarly satisfied that Ms Smith had a proper opportunity to put forward her case as to whether the Full Bench ought to grant her an extension of time to make the Second Appeal Application, and that there was a fair hearing on the question for both parties.

Applicable law and principles

The Secretary contended in his oral submissions that there may be doubt as to whether, once leave to appeal has been refused once, there can be a proper basis for making a second application for leave to appeal. However, he also submitted that this point "perhaps doesn't need to be decided by this [F]ull [B]ench". [1]
The Secretary also drew our attention to s 179 of the IR Act, which we will not reproduce. He submitted that the section was a "very powerful indicator of whether or not leave to appeal is allowed to be granted a second time, but even if it can the policy that may guide the Commission in determining whether or not an extension of time should be granted and if so whether or not leave to appeal should be granted or refused". [2] The Secretary conceded, however, that the section was not put forward "as an absolute bar as to why the discretion shouldn't be exercised in Ms Smith's favour". [3]
These matters were not canvassed in the Secretary's written submissions, which were directed only to the question as to whether the Full Bench should grant the extension application. We do not regard the question of Ms Smith's entitlement to bring the Second Appeal Application as having properly been raised for determination by the Full Bench. Consequently, we do not propose to traverse the (limited) submissions advanced by the Secretary on the point, much less to express a concluded view on it.
There was no controversy as to the principles to apply in considering Ms Smith's extension application. It is convenient to reproduce the following extract from Gough & Gilmour Holdings Pty Limited & Ors v Caterpillar of Australia Limited & Anor [2003] NSWIRComm 3, to which Ms Smith drew our attention, which summarises the relevant principles: "6. The principles to be applied to an application to extend time for Leave to Appeal and Appeal are set out in the Workcover Authority of New South Wales (Inspector Salmon and Parkes Council) (1996) 70 IR 298. These principles have been applied in a number of matters in this jurisdiction. A summary of the application of the principles is found in Anthony Andrew Cavacuiti & Anor v Toyota Motor Corporation Australia Limited [2002] NSWIRComm 341: 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). 2. There is a wide discretion to extend time where the justice of a particular case requires that outcome: Brady v Kennedy t/as 'Sardines' (at 264); Tadic v Beslic at [22]. In exercising the discretion to extend time the Commission may consider a number of factors, such as the length of delay (see Jess v Scott (1986) 12 FCR 187 (at 195); Gallo v Dawson (1990) 64 ALJR 458 (at 481); and Salter Rex & Co v Ghosh [1971] 2 QB 597 (at 601); whether any prejudice would be suffered by the respondent by reason of the granting of the extension of time (see Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 (at 6) and LEP International v Caine (at [57]); whether there is a reasonable explanation for the failure to file the appeal within time (see LEP International v Caine (at [50]); whether the delay was due to an error or mistake by a legal advisor see Brady v Kennedy t/as 'Sardines' (at 269) and Skelly v Prouds Jewellers (at 6) and the prospects of the appellant succeeding in the appeal (see WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (at 299). However, the ultimate exercise of discretion is governed by the requirements of justice in a particular case. In Skelly v Prouds Jewellers it was held (at 6): 'The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to the circumstances before it'."
We also have regard to the following observations of McHugh J, with whom Dawson J agreed, in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 139 ALR 1 at 9-10: "A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. …The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."
The Full Bench also considered Gould v R [2023] NSWCCA 103 ("Gould"). That case involved criminal proceedings, and the Secretary submitted that not all of the Court's analysis would necessarily apply to civil proceedings. That said, we consider the following observations of Bell CJ, with whom Rothman and Garling JJ agreed, to be pertinent to the present matter: 1. an initial refusal of an application for leave to appeal might supply a strong discretionary reason against the grant of a second application for leave to appeal or the grant of any extension of time in respect thereof: at [54]; 2. the policy of the law is not only to prevent re-litigation of matters already litigated but also to preclude a party from arguing in a second set of proceedings between the same parties a point that was available to have been argued in earlier proceedings but was not so argued: at [106]; 3. cogent reasons should underwrite any exercise of discretion to extend time so as to permit a second application for leave to appeal: at [108]; 4. where an applicant for leave to appeal has had a full opportunity to raise such arguments as he or she may be advised to make, prima facie the interests of justice will not warrant a further opportunity being granted. The interests of justice will already have been served by the first opportunity having been taken up and the applicant's arguments having been heard and determined, even if unsuccessfully (together with the opportunity, where available, to pursue any further avenue of appeal): at [110]; and 5. there exists a strong policy of the law in favour of finality of litigation. His Honour quoted with approval passages from D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, including that "[a] central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances": at [127]-[128].

Overview of the case advanced by Ms Smith

It is not necessary to rehearse in detail all of the evidence led by the parties, or to attempt to articulate every contest arising from their submissions. We will address what we consider to be the main bases on which Ms Smith sought an extension of time.
Distilled to its essence, the case presented by Ms Smith as to why the Full Bench ought to grant the extension of time rested in large part on the premise that she did not have, or was denied, the opportunity to be fully and properly heard in respect of the First Appeal Application. Ms Smith's arguments in this respect may be summarised as follows: 1. In the proceedings arising from the First Appeal Application, the Secretary breached his obligations as a model litigant under the NSW Department of Premier & Cabinet Model Litigant Policy for Civil Litigation ("Model Litigant Policy"). This was said to have occurred in the following respects: 1. the Secretary made a "materially incorrect submission" [4] during the hearing of the First Appeal Application on 6 March 2024 when, in answer to a question from the Full Bench, he had submitted that there was ultimately no contest between the parties that Ms Smith was an injured worker. The submission was said to be incorrect because the Secretary had argued before Commissioner Muir that the Pre-Dismissal Payments that Ms Smith had received (see [42] of the Full Bench Reasons) were not "compensation" for the purposes of the WC Act and, consequently, Ms Smith had not received workers compensation payments in respect of the claims she had made in July 2019 and November 2019 prior to her dismissal. This was inconsistent with advice she had received to the contrary when she had called the employee support line for the State Insurance Regulatory Authority ("SIRA"); 2. having agreed that Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350; [2013] NSWCA 305 ("Bindaree Beef") set out the correct approach to the matter before Commissioner Muir, the Secretary made submissions "that did not reflect the framework in Bindaree Beef". [5] This placed an unnecessary burden on Ms Smith to prove a point that the Secretary already understood; and 3. the Secretary made written submissions which contained "materially incorrect assertions", [6] namely that in the First Instance Decision, Commissioner Muir had correctly identified and applied the "test" in Bindaree Beef. While it was common ground that Bindaree Beef established the "framework" by which to determine whether the onus in s 244(2) of the WC Act had been discharged, Commissioner Muir had not in fact applied it in the First Instance Decision. 1. It was only when considering the Secretary's oral submissions following the hearing before the Full Bench on 6 March 2024 did Ms Smith come to realise that Commissioner Muir had not in fact applied the approach called for by Bindaree Beef. Hearing the Secretary's submissions enabled her to "clearly identify the legal errors she could see", namely that the Commissioner "had applied a different framework". [7] 2. Ms Smith is self-represented and suffers from a diagnosed anxiety condition. During the hearing on 6 March 2024 she "struggled to articulate and fully consider her arguments and provide complete responses to the oral submissions of the [Secretary] and questions of the Full Bench as she was experiencing a higher-than-normal level of anxiety. After leaving the Commission, she experienced reduced anxiety and could articulate her responses and arguments overnight with greater clarity and relevance." [8] 3. Those "responses and arguments" were contained in in emails to the Commission sent on 7 and 8 March 2024, before the Full Bench Reasons were handed down. Ms Smith described those emails as having "articulated the errors of law [she] had already identified with greater clarity". [9] However, from the terms of the Full Bench Reasons, she considered that the Full Bench had not had regard to those further submissions, despite there being "no rule or legislation that prevents the Commission from issuing new orders after receiving further submissions". [10]
This leads to the next contention raised by Ms Smith, namely that the Full Bench Reasons were themselves affected by error. The Full Bench is said to have erred: 1. in failing to correctly consider and reflect Ms Smith's oral submissions at the hearing on 6 March 2024 regarding the application of Bindaree Beef to the circumstances, particularly in so far as they related to the onus borne by each party; 2. in confirming that the approach taken by Commissioner Muir in the First Instance Decision was consistent with Bindaree Beef, when it was not; 3. in failing to appropriately consider the grounds of appeal in which she contended that Commissioner Muir erred in failing to provide adequate reasoning for his conclusions; and 4. in denying Ms Smith procedural fairness by failing to properly consider the grounds of appeal raised by her.
Ms Smith further submitted that she had not been afforded a proper opportunity to be heard by the Full Bench. In her written submissions in chief she contended that: "50. In the decision in Application 1 [the Full Bench Reasons] at [3] the Commissions [sic] notes that 'Ms Smith was selfrepresented. We are conscious of our obligations in respect of an unrepresented litigant,' and then concluded at [4] 'We are satisfied that Ms Smith had a proper opportunity to put forward her case, in both written and oral submissions to the Full Bench, and that there was a fair hearing on the question of leave to appeal for both parties.' 51. When the above comments were made: i) The Commission had not received submissions that the Respondent's Model Litigant obligations had not been met or the impact of this bias on the Appellants' [sic] thinking. ii) The Commission knew that the Applicant had a disability but appear not to have considered that the Appellant's disability could have impacted her ability to participate fully in the oral hearings, or how the proceedings could be adjusted to enable the Appellant to overcome the issues she experienced during the oral hearing. iii) The process of identifying reasonable adjustments requires an understanding of how the disability impacts the individual during the process. The hearing for [the First Appeal Application] was the first Appeal process, before a Full Bench, in open court, that the Appellant had ever participated in, so it was not possible to request support prior to the hearing. iv) That as a self-represented litigant one of the hardest challenges is isolation, there is not a team of people to discuss the case law and perspectives with. Hearings provide the only opportunity to hear alternative perspectives that drive new thinking, and problem solving. v) There was no opportunity for written submissions after hearing the Respondents oral submissions, and the Appellant did not know at the time that she could request a further opportunity for written submissions to the Full Bench."
In related submissions, Ms Smith argued that the Secretary had otherwise failed to meet his obligations as a model litigant by pressing his jurisdictional objection in the proceedings before Commissioner Muir, when that objection had no reasonable prospects of success.
Ms Smith submitted that as a consequence of not having had a chance to present properly her case to the Full Bench in respect of the First Appeal Application, and the shortcomings identified in the Full Bench Reasons, leave to extend time to appeal ought to be granted to her so that her grounds for challenging the First Instance Decision could be considered in full.
As to the length of the delay, Ms Smith relied on the shortness of time between the hearing on 6 March 2024, her emails to the Commission of 7 and 8 March 2024, the handing down of the Full Bench Reasons on 8 March 2024 and her filing of the Second Appeal Application on 13 March 2024 to submit that "the delay in seeking the present relief is short". [11]
As to the merits of the Second Appeal Application, Ms Smith submitted that it was "apparent that the error of law involving the application of the incorrect statutory test is of sufficient magnitude that, when rectified, will affect the outcome of the proceedings, and protect the intent of the workers compensation legislation". [12] This in turn, she submitted, would support leave to appeal being granted.
Ms Smith submitted that the Secretary would suffer no prejudice were the extension of time to be granted to her. Even were that not the case, Ms Smith contended, in effect, that any prejudice to the Secretary was outweighed by the importance of having the proposed grounds of appeal determined by the Full Bench. In oral submissions she stated: [13] "Given the strength of the appeal and its merits, there is no prejudice to the respondent that would prevent the extension of time to appeal being granted."
By contrast, Ms Smith argued that she would suffer an injustice if her extension application were not granted, in the form of losing "her legislative right to have an application for reinstatement heard". [14] She also drew our attention to her own circumstances. In her written submissions in chief, she stated: "60. It is worth noting that the applicant is unrepresented not by choice but by circumstance. This application is made on compassionate grounds given the Appellant is an injured worker that initially applied for reinstatement on 10th August 2021. During the period of 2 years and 30 weeks that the Appellant has been seeking reinstatement the Appellant is no longer entitled to income support through the Workers Compensation Scheme, and whilst she has undertaken voluntary and contract work, she has experienced a period of significantly lower income and financial limitations."

Consideration

Given the particular circumstances in which this matter came before us, in preparing these reasons we have assumed familiarity with the Full Bench Reasons and the history of the proceedings which resulted in them.

Challenges to the conduct of the hearing of the First Appeal Application and the Full Bench Reasons

Asserted errors by the Full Bench

Through the Second Appeal Application, Ms Smith sought to appeal the First Instance Decision. However, some of the arguments that she advanced in support of her extension application amounted to a challenge to the Full Bench Reasons.
This can be seen in her submissions as summarised at [21] above. Further, while her submissions were not expressed in these terms, the contentions reproduced at [22] can be seen as asserting that the Full Bench erred in not providing her with procedural fairness in the hearing of the First Appeal Application. This is particularly the case in light of Ms Smith's apparent challenge to the correctness of the Full Bench's conclusions at [4] of the Full Bench Reasons. Ms Smith also seemed to allege error in the failure of the Full Bench to consider her emails of 7 and 8 March 2024.
The Full Bench has no power to hear an appeal from itself. There are avenues available to Ms Smith if she seeks to challenge the order of the Full Bench of 6 March 2024, including on the basis of error in the Full Bench Reasons. As the Chief Justice observed in Gould (albeit in the context of a discussion as to an alleged miscarriage of justice due to incompetence of counsel): "115. It would be to turn the process on its head for a Court asked to grant an extension of time to bring a second application for leave to appeal to have to engage in a consideration of whether a miscarriage had occurred in earlier appeal proceedings in order to determine an extension application."
The Chief Justice also observed in Gould that a denial of procedural fairness during an appeal or first application for leave to appeal, if made out, may weigh in favour of an exercise of the discretion to grant an extension of time within which to bring a second application for leave to appeal: at [100]; see also [32]. In the same case, Rothman J stated (at [151]) that the onus is on the applicant to prove that he or she was relevantly denied procedural fairness.
Having regard to these observations, we will address Ms Smith's arguments with a view to determining whether, in the context of the Second Appeal Application, she has discharged her onus of proving that she was "relevantly denied procedural fairness". We will not consider whether the Full Bench committed appellable error in this regard.

The conduct of the proceedings before the Full Bench

At [3] of the Full Bench Reasons, the Full Bench expressly acknowledged Ms Smith's status as a self-represented litigant. The fact that she suffers from a medical condition was not controversial and underlay both the First Instance Decision and the Full Bench Reasons.
However, these facts do not of themselves lead to the conclusion, as Ms Smith seemed to suggest, that the onus rested on the Full Bench to explore proactively, and in the absence of any request from her, whether "reasonable adjustments" ought to be made for her, or that she be invited to make further submissions after the hearing of oral submissions.
Further, as the Secretary submitted, Ms Smith offered no medical evidence to support her contentions as to the impact of her condition on her ability to properly represent herself at the hearing on 6 March 2024. At the hearing of the extension application on 2 May 2024, Ms Smith stated that she had "obtained a medical certificate to support her request for reasonable adjustments in this matter if it were required", [15] although even had that evidence been before us it would not appear to have been directed to the point raised by the Secretary.
In his written submissions, which we accept, the Secretary submitted: "22. First, the First Appeal provided the Applicant an opportunity to identify, make written and oral submissions and have considered, the alleged errors she identified in relation to the Decision. There were no restrictions imposed on the Applicant's ability to raise concerns with the Decision in the First Appeal, such as restrictions on the length of submissions or time allocated for oral argument. This includes that: (a) the Applicant's First Appeal was 30 pages in length, and raised twelve separate grounds of appeal; (b) the Applicant was provided the opportunity to file a summary of her grounds of appeal to ensure these were accurately understood by the Full Bench; (c) the Applicant was granted an extension of time in which to file the appeal book; (d) the Applicant had the opportunity to file written submissions and review and respond to the Respondent's detailed written submissions; (e) although the Commission's Practice Note provides that written submissions must not exceed 10 typed pages, this restriction was not enforced, with the Applicant's submissions filed on 22 January 2024 and 21 February 2024 both exceeding that limit at 22 pages and 18 pages respectively; (f) the Applicant had the opportunity to make oral submissions before the Full Bench at the hearing on 6 March 2024 and was given time to answer questions from the Full Bench and consider her oral response to the Respondent's oral submissions; and (g) additionally, the Applicant was offered (but declined) the opportunity to take a break after hearing the Respondent's oral submissions, before making her oral submissions in reply." (Footnotes omitted)
In considering this aspect of Ms Smith's extension application, we are mindful of the following observations in Hamod v State of New South Wales and Anor [2011] NSWCA 375: "313. The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated: 'But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant.'"
Having regard to these matters, we were not persuaded that Ms Smith had demonstrated that she was denied procedural fairness in the way in which the Full Bench conducted the hearing of the First Appeal Application.

The failure of the Full Bench to consider Ms Smith's further submissions

On the question of whether Ms Smith was denied procedural fairness as a result of the Full Bench failing to consider her submissions of 7 and 8 March 2024, three matters arise. First, whether the Secretary breached his obligations under the Model Litigant Policy, requiring Ms Smith to attempt to address that failing in her emails of 7 and 8 March 2024. Second, whether the asserted error by Commissioner Muir in his application of Bindaree Beef was a matter arising from the First Appeal Application. Third, whether it was open to the Full Bench to have regard to the emails of 7 and 8 March 2024. We will address each in turn.

Alleged breach of the Model Litigant Policy

Insofar as they relate to her emails of 7 and 8 March 2024, Ms Smith's assertions that the Secretary breached the Model Litigant Policy relate to his submissions that Commissioner Muir had correctly applied Bindaree Beef. In her written submissions, Ms Smith contended that the Secretary "knew that this was not true". [16] However, at the hearing of the extension application, Ms Smith stated that she was not suggesting any deliberate attempt by the Secretary to mislead.
It was not entirely clear how Ms Smith asserted that the Secretary's submissions were incorrect. This was explored with her during the hearing. In effect, she seemed to suggest that the language adopted by the Secretary in his submissions confused her, with the result that she had been "hampered" in articulating in her own submissions. We fail to see how this is a breach of the Model Litigant Policy, and Ms Smith's submissions in this regard were not compelling. The Secretary cannot be regarded as blameworthy if Ms Smith failed to adequately comprehend his submissions.
In his oral submissions, which we accept, the Secretary submitted: [17] "[L]itigation in this Commission and under the Anglo-Australian legal system is adversarial in nature, and the obligation is placed upon the applicant or [appellant] to put forward its case and the respondent responds to that case. There is no obligation which is placed upon an opposing party to litigation to not make submissions which have a reasonable basis. Ultimately, it is a matter for the tribunal to decide those issues. Where the model litigant guidelines do make a distinction is where you present a fact which you know to be untrue. Now there's a difference between advancing a fact which you know to be untrue as opposed to a contested legal interpretation of a particular statutory provision or a different view as to what a commissioner below may have decided in relation to an issue. We would say that is a significant point of difference that exists between Ms Smith's position and the respondent's position.
In any event, for the reasons set out at [82]-[92] below, we do not accept that there was any inaccuracy in the Secretary's submission that in the First Instance Decision, Commissioner Muir identified and applied the correct approach, being that set out in Bindaree Beef.

Was the correctness of Commissioner Muir's application of Bindaree Beef in contest?

In ground 2 of the First Appeal Application, Ms Smith asserted that the Commissioner had made an error of law by "applying the incorrect statutory test" in determining the substantial and operative cause of her dismissal. In circumstances where it was agreed that Bindaree Beef set out the approach to be applied, at the hearing of the First Appeal Application the Full Bench sought to clarify whether Ms Smith was asserting that the Commissioner had misapplied that case. Ms Smith stated that she did not assert such an error.
The transcript of those proceedings records the following exchange: "[APPLICANT] The Commission considered a broader legal framework that included reasons beyond the subjective reasons of the decision maker. At point 28 in the decision the Commission decides that the task of the Commission is to determine the reasons - actual reasons. This required the Commission to consider the reasons the respondent gave, the evidence it brings to the Commission now and whether in the totality of the circumstances the Commission is persuaded a compensatable [sic] workplace injury was not a substantial and operative cause of the dismissal. Notably, the Commission has removed the narrow focus on the subjective reasons of the decision maker put forward by the respondent. The Commission did not give the parties notice of his intention to apply this broader framework and thus there was no opportunity to deal with these inconsistencies or have them properly determined. This resulted in a denial of procedural fairness that impacted the decision and therefore warrants appeal. A further ground for appeal 7 was to correct an error-- CONSTANT CC: Sorry, I've got your submissions and can I ask you, in what I think is numbered para 4 which you've just read from, are you saying that the Commission misapplied Bindaree Beef essentially? APPLICANT: No, I'm saying that the respondent's submissions which focused only on the subjective reasons are a narrower focus than Bindaree Beef and the Commissioner, rather than applying the legal framework under - sorry, I've forgotten - but the legal framework under the reinstatement act, he applied Bindaree Beef when he should have applied - the onus was on the respondent so he should have applied their submissions in his consideration rather than applying Bindaree Beef to both of our considerations."
Ms Smith submitted in these proceedings that the above passage reflected her confusion as a result of the Secretary's submissions, as dealt with above. There are, as she stated, contradictory statements in her response to the Chief Commissioner. That is, she denied that she was asserting that Commissioner Muir misapplied Bindaree Beef, while going on to question the way in which he had applied the case. She sought to draw a distinction between her reference to the Commissioner applying "the incorrect statutory test" on the one hand, and misapplying Bindaree Beef on the other. However, she was unable to articulate the significance of the distinction. In her oral submissions, she stated: [18] "It's that I took the approach of saying that he had applied the incorrect statutory test, not that he had misapplied Bindaree Beef. In effect, that's probably the same submission."
At the hearing of the extension application, the Full Bench acknowledged that there may be a distinction between those contentions. The Secretary also conceded that "there might be a subtle difference there" but that "it really depends on what aspect of the statutory test is being identified as wrong". [19] On balance, however, we were unable to comprehend any substantive difference in the propositions.
As at the time of the hearing of the First Appeal Decision, Ms Smith had not, in terms, alleged that Commissioner Muir had erred by failing to properly apply Bindaree Beef in making the First Instance Decision. There was no proper basis on which the Full Bench could have understood that to be part of her case.
In the circumstances, Ms Smith did not demonstrate how there can have been a denial of procedural fairness in the Full Bench declining to consider submissions advanced after the hearing on 6 March 2024, when they went to support a ground that was not raised in the First Appeal Application and were apparently contrary to the position she had put to the Full Bench in that hearing.

Was it open to the Full Bench to have regard to the further submissions?

The Full Bench heard the First Appeal Application on 6 March 2024 and handed down its decision to refuse leave to appeal at the conclusion of the hearing. The fact that the reasons for that decision had still to be issued does not detract from the fact that the order made on 6 March 2024 effectively concluded the matter.
In those circumstances, for the Full Bench to have taken Ms Smith's submissions into account it would have been necessary for it to re-open the First Appeal Application proceedings. There is a real question as to whether it had the power to do so once the order had been made. The "general rule is that a court has no power to set aside or vary a final judgment which has been passed and entered, because of the public interest in the finality of litigation": M Allars, "Perfected judgments and inherently angelical administrative decisions: The powers of courts and administrators to reopen or reconsider their decisions" (2001) 21 Aust Bar Rev 50 at 51, citing DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 as a case which had affirmed that principle.
In any event, to the extent that the power exists, as Rothman J observed in Gould at [153], the basis on which a re-opening of the proceedings can occur after orders have been entered are extremely limited, citing DJL v Central Authority at [34]-[35] and Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303; [1993] HCA 6.
Prior to sending her emails to the Commission on 7 and 8 March 2024, Ms Smith did not request that the proceedings be re-opened. She appears to have assumed that the Full Bench would have regard to her emails and, presumably, revisit the order it had made on 6 March 2024 if it accepted the additional submissions that she made. Such an assumption is perhaps understandable given that Ms Smith is not a lawyer and is unrepresented, but it was a false one. In any event, Ms Smith has not demonstrated that the case fell within one of the "extremely limited" bases on which the proceedings could have been re-opened.
To the extent that Ms Smith contended that the Full Bench erred in failing to re-open the proceedings relating to the First Appeal Application, we reiterate the observations at [32] above. That is not a question for determination by the Full Bench.

Other alleged breaches of the Model Litigant Policy

It is convenient to address at this point the other bases on which Ms Smith contended that the Secretary had breached the Model Litigant Policy.
At the hearing of the First Appeal Application, the Full Bench asked counsel for the Secretary whether it had been in contest before Commissioner Muir that Ms Smith was an "injured worker" for the purposes of the WC Act. He answered "Ultimately, no, is the answer", before going on to expand on it.
Ms Smith submitted that this submission was materially incorrect, as there had been a dispute between the parties as to whether the Pre-Dismissal Payments were to be regarded as "compensation" under the WC Act. Contrary to the position taken by the Secretary, Ms Smith stated that she had received advice from the SIRA employee support line that the payments were to be regarded as compensation.
Ms Smith argued that the Secretary had a "duty of care to check [his] case within the government before proceeding with the litigation and in this case before proceeding to press the threshold issue with the information they had available" [20] . In her written submissions in reply she stated: "70. The Industrial Relations Secretary is the employer of all NSW public sector employees including those within the NSW State Insurance Regulatory Authority (SIRA). SIRA can provide independent and expert advice regarding employer responsibilities under the Workers Compensation Act including the appropriate legal test for determining if a worker was considered an injured worker under Part 8 of the Workers Compensation Act prior to her termination. There is no evidence that the Respondent sought independent advice from SIRA in relation to conditions in s 241 of the WC Act and the evidence that they had before proceeding to press the jurisdictional issue through litigation."
Whether or not the Pre-Dismissal Payments constituted compensation under the WC Act would ultimately be a matter for the Commission to determine, were that necessary. However, it was not ultimately material. To be entitled to a reinstatement order under s 242 of the WC Act, it was necessary for Ms Smith to be an injured worker as defined. Commissioner Muir found that it was "clear" that she was and that there was "no room for doubt on this question": First Instance Decision at [51].
In that context, there is no substance to the suggestion that it was incorrect, materially or otherwise, for the Secretary to have made submissions to the Full Bench that there was "ultimately no contest" before Commissioner Muir that Ms Smith was an injured worker.
There is equally no basis for Ms Smith's contention that it was a breach of the Model Litigant Policy for the Secretary to have pressed its jurisdictional objection before Commissioner Muir. The premise of the contention was that the Secretary had commenced proceedings - that is, the jurisdictional objection - "without reasonable cause", as that term appears in s 181(2)(b) of the IR Act.
We observe that that provision concerns the Commission's powers to award costs in proceedings. Its immediate relevance to these proceedings is not clear. That aside, it is not necessary to traverse Ms Smith's submissions in respect of this contention. It suffices to observe that in the First Instance Decision, Commissioner Muir upheld the Secretary's jurisdictional objection, and that decision was not upset by the Full Bench Reasons.

Conclusion

For the reasons set out above, we find that Ms Smith has failed to discharge her onus of demonstrating that she was denied procedural fairness in connection with the hearing and determination of the First Appeal Application such as to warrant an extension of time to make the Second Appeal Application.

The grounds of the Second Appeal Application

The Second Appeal Application, under the heading "Questions of Law", lists four "errors of law" said to have been made by Commissioner Muir in the First Instance Decision. Under the heading "Appeal Grounds", the document sets out the basis on which Ms Smith contended that those errors can be demonstrated. At the hearing of the extension application, Ms Smith confirmed that the "questions of law" are to be regarded as the grounds of appeal asserted in the Second Appeal Application.
The "questions of law" are in the following terms: "1 The Commission made an error of law by applying the incorrect statutory test to determine if the Applicant's compensable injury was a substantial and operative cause of her dismissal. 2 The Commission made an error of law by not providing adequate reasoning to support the legal framework that he applied in the decision to determine if the Applicant's compensable injury was a substantial and operative cause of her dismissal. 3 The Commission made an error of law because the decision is inconsistent with the purpose and objectives of the WC Act because it excludes some injured workers. Effectively this approach unfairly excludes some workers from reinstatement, in the circumstance that they are terminated for reasons linked to their compensable injury but the decision-maker was not aware of their compensable injury at the time. 4 The Commission made an error of law, specifically a jurisdictional error, in dismissing the application for want of jurisdiction because of the above reasons."
There are two matters to consider in respect of these questions. First, to what extent do they raise new matters for consideration, which were not - or could not have been - included in the First Appeal Application? Second, what are the prospects of Ms Smith being granted leave to appeal in respect of those grounds and, if leave is granted, of succeeding on the appeal?

Does the Second Appeal Application raise new matters for consideration?

The first of these questions is in many respects answered in Ms Smith's own submissions. She described the grounds of appeal in the Second Appeal Application as being "simply a more streamlined and clarified version of the original grounds". [21] At the hearing of the extension application, Ms Smith stated: [22] "Ground 2 from application 1 is the primary ground that was not properly considered by the commission in the first hearing. The first three grounds in this application articulate more clearly the same errors presented in ground 2 in application 1. Ground 12 in application 1, and ground 4 in this application are essentially the same."
There was, in addition, the following exchange: [23] "CONSTANT CC: Did you just say that the appeal 2 grounds are just a streamlined version of the grounds in appeal 1? APPELLANT: I did and it's because they weren't properly considered by the Commission in the first application. CONSTANT CC: I just wanted to clarify that's what you said. APPELLANT: Yes, I did. I think, back in the previous thing I actually linked the - ground 2 is grounds 1, 2 and 3 in this one and ground 12 is ground 4 and then on that that point, my submissions are that ground 2 wasn't properly considered in the previous application."
To the extent that Ms Smith wishes to canvass in the Second Appeal Application the submissions set out in her emails to the Commission of 7 and 8 March 2024, they "articulated the errors of law [she] had already identified with greater clarity". [24]
In his written submission, the Secretary contended: "23. …In terms of the grounds raised in the Second Appeal and their similarity to the grounds in the First Appeal, the Respondent submits that: (a) Ground 1 is that the Commissioner erred in the identification and application of the legal framework arising from Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350. This argument is substantively the same as the first appeal ground in the First Appeal regarding Commissioner Muir's interpretation and application of Bindaree Beef, which was thoroughly addressed by the Full Bench. To the extent this argument in the Second Appeal differs, it arises solely from the Decision and therefore could have been identified by the Applicant at an earlier stage. The Applicant does not make submissions to the contrary. (b) Ground 2 is that Commissioner Muir failed to provide adequate reasons for his Decision. This was raised in grounds 3, 4, 8, 9 and 10 of the First Appeal, and the merits of the argument were addressed by the Full Bench in the First Appeal Decision. (c) Ground 3 is that the Decision does not align with the purpose and objectives of the WC Act. This was raised in grounds 2 and 12 of the First Appeal, and the merits of the argument addressed by the Full Bench in the First Appeal Decision." (Footnotes omitted)
We accept these submissions in so far as they relate to grounds 2 and 3 of the Second Appeal Application. Having regard to the "strong policy of the law in favour of finality of litigation" identified by the Chief Justice in Gould, the fact that the Full Bench has considered the substance of those grounds and refused leave to appeal in respect of them is a strong factor against the grant of an extension of time to appeal in these proceedings.
Ground 1 requires closer consideration. In the First Appeal Application, Ms Smith did not expressly challenge the correctness of Commissioner Muir's application of Bindaree Beef. The relevant ground of appeal, being ground 1 of the First Appeal Application, alleged error in the Commissioner's statement at [27] of the First Instance Decision that the submissions of the parties regarding Bindaree Beef "did not fundamentally differ".
As we will come to, ground 1 of the Second Appeal Application, on the contrary, alleged that Commissioner did not apply, or misapplied, the "test" in Bindaree Beef. To that extent, while the respective grounds call for an analysis of Bindaree Beef, it does not necessarily follow that ground 1 of the Second Appeal Application is "substantively the same" as ground 1 of the First Appeal Application.
Even so, Ms Smith had ample opportunity to consider the First Instance Decision before filing the First Appeal Application. Even were we to accept that during or after the hearing before the Full Bench, Ms Smith came to the view that the Commissioner Muir erred in his application of Bindaree Beef, she has provided no cogent reason as to why this could not have been included as a ground of appeal in the First Appeal Application. At the very least, the Secretary's position was clearly articulated in his submissions. It was open to Ms Smith to have challenged the Secretary's submissions in her submissions in reply and, if necessary, apply to amend the First Appeal Application. She did not do so.
In Gould, Rothman J observed (at [161]) that a court "should not allow the re-agitation of applications for leave to appeal where it would amount to a re-hearing of the original application including advancing grounds for the first time which were open to be advanced at the time of the first application". In our view, the Second Appeal Application falls into that category.

What are the prospects of success on the Second Appeal Application?

We turn now to consider the merits of the Second Appeal Application. In an application for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: Gallo v Dawson (1990) 64 ALJR 458, [1990] HCA 30 at [2] (McHugh J).
In Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41, Brereton J observed: "23. …However, one consequence of being out of time to appeal and requiring an extension is that, in distinction from an appeal brought in time as of right, an application for an extension of time invites a preliminary review of the merits. This will, at least ordinarily, not involve a detailed evaluation of the prospects of success of the proposed appeal, and it will generally suffice for the applicant to demonstrate a fairly arguable case, at least if there is a reasonable explanation for delay and no significant prejudice to the opponent; but if either of those conditions is not satisfied, the applicant may be required to show that the proposed appeal has more than merely arguable prospects of success. If it appears that the appeal is a highly meritorious one, that will weigh heavily in favour of an extension of time, although it is not decisive; but if it appears that the appeal cannot succeed, an extension of time to bring a hopeless appeal should not be granted."
In the Full Bench Reasons, the Full Bench traversed each of the 12 grounds of appeal contained in the First Appeal Application. It concluded (at [87]) that Ms Smith had not demonstrated appellable error in the First Instance Decision. This determination is relevant in the context of considering the merits of the Second Appeal Application, to the extent that it traverses the same issues.
That said, we will consider each of the grounds arising under the Second Appeal Application.
Ground 1 relates primarily to the following observations in the First Instance Decision: "18. The test set out in s 244(2) [ of the WC Act] allows for a more nuanced assessment of the reasons for an employee's dismissal than the submissions of the parties would suggest. Section 244(2) does not require that the compensable injury have made no contribution to the reasons for dismissal. The employer may close the gateway by satisfying the Commission that the compensable injury was not 'a substantial and operative cause' of the dismissal. … 20. An employer might discharge the onus by satisfying the Commission that a compensable injury formed no part of the cause for the dismissal, or that the compensable injury was not 'a substantial and operative cause' of the dismissal."
Ms Smith submitted that these passages "do not reflect the true interpretation of Bindaree Beef". [25] Rather, "[in] everyday language, Bindaree Beef provided that if the compensable injury formed any part of the cause of the dismissal, then it follows that the onus is not rebutted". [26] These submissions do not reflect either the terms of s 244(2) of the WC Act or the reasoning in Bindaree Beef.
Section 244(1) of the WC Act provides that in proceedings for a reinstatement order, "it is to be presumed that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received". Section 244(2) provides that the presumption will be rebutted if the employer satisfies the Commission that the injury "was not a substantial and operative cause of the dismissal of the worker". The legislation does not require the employer to prove that the injury formed no part of the reason to dismiss. Commissioner Muir's observations at [18] and [20] of the First Instance Decision reflect the terms of the WC Act.
Nothing in Bindaree Beef calls for (or could call for) a different approach. The decision of Bathurst CJ in Bindaree Beef, with whom Beazley P agreed, confirms that the onus on the employer is as described in s 244(2). His Honour observed (at [52]) that "the onus is on the employer to prove that the dismissal was not connected with the worker's injury in the sense described in s 244(2)". He went on to observe (at [58]) that "[s]ection 244(2) recognises that there could be more than one cause for the dismissal. The presumption will be rebutted if it is shown that the injury is not a substantial cause and one that is operative on the decision-maker at the relevant time."
Ms Smith's submission that Bindaree Beef is authority for the proposition that the presumption in s 244(2) will not be rebutted "if the compensable injury formed any part of the cause of the dismissal" (our emphasis) cannot be accepted.
Further in respect of ground 1, Ms Smith contended that Commissioner Muir did not properly apply Bindaree Beef in that he failed to consider "the objective circumstances that may challenge the decision makers stated reasons" [27] (sic). The challenge stems from the following passage in the First Instance Decision: "28. The task for Commission is to determine the respondent's actual reasons. This will require the Commission to consider the reasons the respondent gave, the evidence it brings to the Commission now, and whether, in the totality of the circumstances, that the Commission is persuaded a compensable workplace injury was not a substantial and operative cause of the dismissal."
Ms Smith submitted that this passage "does not reflect the true interpretation and application of Bindaree Beef". [28] The asserted errors were, firstly, that the Commissioner sought to determine the "actual reasons" for Ms Smith's dismissal, and, secondly, that the Commissioner needed to be persuaded "in the totality of the circumstances" whether Ms Smith's compensable injury was a substantial and operative cause of that dismissal. Ms Smith argued that to apply Bindaree Beef correctly, the Commission needed not only "to consider the stated reasons for the dismissal" given by the decision-maker, but to identify "the need to evaluate the stated reasons with the objective circumstances". [29]
Ms Smith took us to several extracts from Bindaree Beef, including the following: "52. The reason for the presumption, in my opinion, is to overcome the difficulty a worker might otherwise have in establishing that the cause of dismissal was unfitness for employment as a result of the injury. To avoid that difficulty the onus is on the employer to prove that the dismissal was not connected with the worker's injury in the sense described in s 244(2). In those circumstances, it would be a misconstruction of the Act to conclude that the actual reasons of the employer for dismissal of the worker should not be taken into account in determining whether or not the presumption is rebutted. The question in effect is why the employer dismissed the worker. That can only be considered in the context of the actual reasons for doing so. … 55. I have set out the history of the legislation in dealing with the parties' submissions at pars [36], [40]-[42] above. I agree with the submissions of Mr Riley that the purpose of the change in wording was to assist injured workers. However, that assistance, in my opinion, was rendered by the replacement of the words 'not solely or principally related' with 'substantial and operative'. Those words did make it more difficult for the employer to rebut the presumption. However, in my opinion the use of the word 'cause' does not render irrelevant the actual reasons for the decision-maker dismissing the worker. The expressed reasons of the decision-maker must of course be evaluated in light of the actual circumstances surrounding the dismissal." (Emphasis added)
Far from suggesting that Commissioner Muir misunderstood the effect of Bindaree Beef, these passages confirm that the observations at [28] of the First Instance Decision were entirely consistent with it.
In her oral submissions, Ms Smith argued that the First Instance Decision demonstrated that the Commissioner "did not evaluate the respondent's stated reasons in light of the objective circumstances, but rather considered if the respondent could credibly claim that incapacity due to injury could be separated from the reasons for the applicant's dismissal". [30] In our view, this was a distinction without a difference. In any event, the submission cannot be sustained on a proper reading of the First Instance Decision.
At [46]-[50] of that decision, Commissioner Muir reproduced extracts from the parties' submissions as to the reasons for Ms Smith's decision. He assessed the case advanced by the Secretary at [64]-[66]. At [67]-[68] he set out his conclusion that he was satisfied, on the balance of probabilities, that Ms Smith's compensable injury was not a substantial and operative cause of her dismissal. No error is revealed in the approach adopted by the Commissioner.
In support of ground 2, Ms Smith submitted that Commissioner Muir "failed to properly exercise the discretion committed to him" in that at [14]-[20] of the First Instance Decision he proposed "a legal framework…without reference [to] an accepted legal framework (case law), and without applying a thorough process of statutory interpretation to determine if the approach is aligned to the purpose and intention of the Workers Compensation Act". [31]
At [14]-[20] of the First Instance Decision, Commissioner Muir analysed the terms of s 244 of the WC Act, with particular focus on the onus on the employer under s 244(2). For the reasons we have already given, there was no error in that analysis. When he came to apply that legislation, the "framework" he adopted was informed by Bindaree Beef. It is incorrect to assert that the Commissioner failed to make reference to relevant case law in this regard.
In respect of ground 3, Ms Smith contended that the First Instance Decision was "inconsistent with the objectives of the WC Act because it excludes some injured workers". She submitted that the approach adopted by Commissioner Muir "unfairly excludes some workers from reinstatement, in the circumstance that they are terminated for reasons linked to their compensable injury but the decision-maker was not aware of their compensable injury at the time".
At the outset, we observe that this contention was raised in grounds 2 and 12 of the First Appeal Application. Those grounds were addressed by the Full Bench at [34]-[38] and [84]-[86] respectively of the Full Bench Reasons. For the reasons there set out, we are not persuaded that Ms Smith has demonstrated error in the First Instance Decision.
Further, as the Secretary submitted, Ms Smith's contentions rest on two false premises. First, that the Commissioner found that Ms Smith had been dismissed "for reasons linked to [her] compensable injury". As already stated, he did not do so. Second, that the decision-maker was not aware of her compensable injury at the time of the dismissal. That was not the case advanced by the Secretary.
Ground 4 of the Second Appeal Application asserted what might be termed a "consequential error". That is, as a result of the errors asserted in grounds 1 to 3, Commissioner Muir erred in dismissing Ms Smith's application for want of jurisdiction. Due to the views we reached in respect of grounds 1 to 3, ground 4 fell away.
For the reasons set out above, we were not persuaded that Ms Smith had demonstrated that the Second Appeal Application had any, or any significant, prospects of success.
We were similarly of the view that there were limited, if any, prospects of Ms Smith being granted leave to appeal in respect of the Second Appeal Application. Section 188(1) of the IR Act provides that an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. Under s 188(2), the Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
The principles to apply on the question of leave to appeal were set out by the Full Bench in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10]-[11] and by Walton J in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178 at [21].
A grant of leave to appeal was unlikely to be made in circumstances where: 1. there were limited, if any, prospects of success on the grounds of appeal in the Second Appeal Application; 2. for the reasons stated, none of the appeal grounds raised substantial issues or principle or law, or had wider implications for the jurisprudence of the Commission; and 3. in the Full Bench Reasons, the Full Bench refused leave to appeal in respect of substantively the same challenges to the First Instance Decision. To adopt the language of Bell CJ in Gould (at [54]), this was a "strong discretionary reason against" the grant of any extension of time to make a second application for leave to appeal.

Prejudice

The Secretary submitted that he would suffer prejudice if the Full Bench granted Ms Smith an extension of time. His contentions in this regard, relying in part on the evidence in Ms Elliott's statement, included the following: 1. It is well-established that the prejudice to be considered includes the cost and inconvenience of litigation brought outside statutory timeframes: Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6. 2. The Secretary had expended considerable time and resources, including legal costs, in responding to the First Appeal Application. Due to the "significant areas of overlap" between that application and the Second Appeal Application, the Secretary would incur a substantial duplication of that time and those resources if the extension were granted. 3. The Secretary had already incurred duplicated legal costs in responding to the Second Appeal Application. 4. Personnel of the Secretary have been engaged in litigation relating to Ms Smith's dismissal for over four years. This had caused considerable stress to personnel, and there would be an injustice in this case if those personnel were subjected to further stress were Ms Smith granted leave to file the Second Appeal Application.
In her submissions in reply, Ms Smith contended, in effect, that any prejudice to the Secretary was outweighed by the importance of having the proposed grounds of appeal determined and the "strength of the Appeal". It suffices to refer to our findings as to Ms Smith's prospects of success on the Second Appeal Application.
We were satisfied that prejudice would be suffered by the Secretary were we to grant Ms Smith an extension of time. This weighed against the granting of such an extension.

Conclusions

The Second Appeal Application was filed more than 15 weeks after the expiration of the time limit in s 189(1) of the IR Act. That is a considerable delay. It is not to the point that Ms Smith filed the Second Appeal Application soon after the Full Bench Reasons were handed down.
The explanations for the delay offered by Ms Smith were not persuasive and did not warrant the grant of an extension of time. We did not accept that she was denied the opportunity to be heard properly in the hearing of the First Appeal Application.
We were not persuaded that there were any reasonable prospects of Ms Smith being granted leave to appeal in respect of the Second Appeal Application, or of her succeeding on appeal even had leave been granted.
In large part, the Second Appeal Application was an attempt to recast and relitigate the grounds Ms Smith advanced in the First Appeal Application. On the basis of the authorities to which we have referred, it would be contrary to the principle of finality were the Commission to have allowed that to occur. This is particularly the case when the Full Bench has previously refused leave to appeal on those grounds.
We found that there was no cogent basis on which we should grant the extension of time sought by Ms Smith. To adopt the language of McHugh J in Brisbane South Regional Health Authority v Taylor, Ms Smith did not discharge the "positive burden" on her of demonstrating that the justice of the case required that the extension be granted.

Endnotes

Tcpt, 2 May 2024 p 37(21)
ibid., p 37(42-46)
ibid., p 38(49-50)
ibid., p 15(34)
Ms Smith's Submissions in Chief, par 26
ibid., par 33
ibid., pars 34-35
ibid., par 58
ibid., par 23
Ibid. par 52
ibid., par 24
ibid., par 82
Tcpt, 2 May 2024, p 35(26-28)
ibid., p 35(32-34)
ibid., p 32(41-42)
Ms Smith's Submissions in Chief, par 31
Tcpt, 2 May 2024, pp 36(41)-36(7)
ibid., p 17(33-35)
ibid., p 39(12-14)
ibid., p 28(15-17)
Ms Smith's Submissions in Chief, par 23
Tcpt, 2 May 2024, p 17(44-48)
ibid., p 34(3-14)
Ms Smith's Submissions in Chief, par 23
ibid., par 65
ibid., par 66
ibid., par 70
Ms Smith's Submissions in Reply, par 35
ibid., par 36
Tcpt, 2 May 2024, p 6(34-38)
Ms Smith's Submissions in Chief, par 77 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: 07 May 2024

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