Sparke v Vocational Training Appeal Panel

Principles 13The principles for the granting of an extension of time are well settled and are to be found in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298, where the Full Bench of this Court summarised the relevant principles (at 299-301) as follows: The proper approach to adopt in a consideration of the application was common ground between the parties. Reference was made in that respect to the decision of the Full Commission (Peterson and Schmidt JJ, and Connor CC) of the former Industrial Relations Commission of New South Wales in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 5-6 as followed by the Full Commission (Cahill VP, Maidment J and French CC) in Brookes v Watling (1995) 61 IR 163 at 166-167. In those two cases the Full Commission cited recent authorities formulating the way in which the grant of an extension of time for the filing of an appeal should be considered: see Gallo v Dawson (1990) 64 ALJR 458; Jess v Scott (1986) 12 FCR 187; and Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601. From those cases, the following propositions may be drawn: (1) The grant of an extension of time is not automatic and the object of those rules which fix times for doing acts is to ensure they do not become instruments of injustice; the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. (2) The discretion can only be exercised in favour of an extension of time upon proof that compliance with the rules will work an injustice upon the applicant therefor which necessarily requires regard be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application to extend time: see Avery v No 2 Public Service Appeal Board [1978] 2 NZLR 86 at 92; and Jess v Scott at 194-195. (3) An application for an extension of time in which to file an appeal always requires consideration of the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-264; and Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. (4) Upon the expiration of the time for appealing, the respondent has '"a vested right to retain the judgment" unless the application is granted: see Vilenius v Heingar (1962) 36 ALJR 200 at 201. (5) There must be material upon which it can be satisfied that to refuse the application to extend time would constitute an injustice: see Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1965] 3 All ER 933 at 935. (6) 'The difference between two weeks and four weeks is not much (by which the time is to be extended) . . . We never like a litigant to suffer by the mistake of his lawyers'': per Lord Denning in Ghosh at 601. In accepting the approach inherent in the above propositions, the Full Commission observed in Skelly (at 6): "The Commission's Rules require an appeal to be filed within 28 days of a decision. There is a public interest in the prompt institution and prosecution of litigation before the Commission. Indeed the Act is designed with this as a feature. It follows that a successful litigant before the Commission is generally entitled to proceed on the basis that a decision in its favour will stand, in the absence of an appeal being filed within the time prescribed. There is a discretion in the Commission to extend the time for filing an appeal. Such a discretion will not however be lightly or automatically exercised, particularly if the application is made after the time for appeal has expired. The fact that there will be no prejudice to a respondent party by an extension of time being granted is one factor which the Commission will take into account, but will not be solely determinative of the matter. In this context the cost and inconvenience of litigation not brought within the limitation period prescribed is a matter to which regard may properly be had when an application for extension of time is made. The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to all the circumstances before it." See also Butlers Hire Pty Ltd v Collison [2007] NSWIRComm 288. 14These principles may be further supported by s 56, s 57, s 58, s 59 and s 60 of the Civil Procedure Act 2005. Section 56(2) requires the court to seek to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings when it exercises any power given to it.

Consideration 15The appellants case for an extension of time is devoid of an explanation for the various delays in filing the appeal. This is a relevant factor in the exercise of the court's discretion: WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (1996) 70 IR 298 (at 304) and Gallo v Dawson (1990) 93 ALR 479 (at 481). The principles in these cases require a consideration of the extent of the period of lateness in light of the reasons given for the delay: Gabrielle Weisser v Spur Group Pty Ltd (unreported, Walton J Vice-President, 2 September 2002, matter No IRC 3744 of 2002). 16In this matter, the delay in filing the appeal that challenges directions and judgment of Boland J and an order of Walton J, is between approximately three months to six months. 17In my view, the failure to provide any specific explanation of why the appeal was not filed within time, must count against the appellants.

Prejudice 18Whether the respondent will suffer prejudice by the granting of an extension of time is not determinative and only one factor to consider in dealing with such an application. The costs of inconvenience of litigation brought outside a prescribed limitation period should also be considered: Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3. The first respondent submitted that it had been prejudiced by the delay. It also submitted that it had participated in many days of hearing before Boland J. It contended that there would be an "injustice" if the extension of time to appeal were allowed because the prospects of obtaining leave to appeal were futile. As the matter stands, the appellant did not have the right to bring its application for leave to appeal and appeal. If the extension were granted, the first respondent would incur further legal costs.

Prospects of success on appeal 19In the exercise of the court's discretion to determine whether to extend time, it is necessary to consider the appellants' prospects of succeeding in the appeal: WorkCover Authority of New South Wales v Parkes Council (at 300). 20The prospects of the appellants succeeding in the appeal, which I shall discuss later in this judgment are, in my view, negligible. The vast majority of the matters raised in the application are currently before Boland J and have not been the subject of a "decision". As such, many of the grounds of appeal are incompetent. 21In Tadic v Beslic [2001] NSWIRComm 107, Wright J President found an application for the extension of time should be refused on the basis that the prospects of the appeal succeeding were extremely limited, and it was unlikely that leave to appeal would be granted. The first respondent submitted that in this case the prospects of obtaining leave to appeal would be futile. The first respondent further submitted that for leave to be granted, the appeal must raise substantial important considerations. The respondent contended that the appellants were seeking to appeal directions made by Members of the Court. In respect of this issue, a substantial body of law has been developed by the Courts discouraging such appeals. Such law is well settled as I discuss later in these reasons. 22There is no dispute that the court is required to consider the appellants' prospects of success in the appeal. In appeal proceedings under the IR Act, where an appeal from a decision does not lie as of right, a consideration of the prospects of success of an appeal will necessarily involve, in my view, a consideration as to whether the appellants could be expected to obtain leave to bring that appeal. Consideration of the merits of an appeal may bear upon the question of leave, but it is not determinative of that issue. I follow the judgment of Wright J in Tadic v Beslic in this respect. 23In the present case, although the appellants filed written submissions and a further affidavit of the first appellant, the appellants have failed to place any relevant material before the court to clarify the grounds of the appeal, or to assist a determination of the prosects of the appeal. No appeal book has been filed in accordance with the Court's requirements. 24A further matter that is relevant is that the substantive appeal has not concluded and that the appellants, subject to the resolution of the appeal, if unsuccessful, will have a right of appeal. 25The essential complaint that the appellants raise is in respect of directions made by various members of the court and an interlocutory judgment of Boland J. 26In respect of the directions of Walton J on 27 November 2012, the appellants challenge the Order made by his Honour that the record before the VTT and VTAP form part of the appeal. 27This submission proceeds on an erroneous basis that the record is not necessarily relevant to an appeal de novo. 28The starting point is s 55(1) of the Apprenticeship and Traineeship Act 2001 which provides that: (i) An appeal from a decision of the Appeal Panel may be made to the Industrial Relations Commission in Court Session (the "Commission"), but only by leave of the Commission. (emphasis added). 29Notwithstanding that an appeal is characterised as an appeal de novo, the decision at first instance has effect until it is overturned. In Harris v Caladine (1991) 172 CLR 84, the High Court considered issues involving an appeal de novo from orders made by a registrar of the Family Court, Dawson J stated (at [32]): I agree with Mason C.J. and Deane J., Brennan and Gaudron JJ. that the order made by the Registrar continues in force unless and until the Court, after undertaking a review, makes an order that it be set aside: Kinch v. Walcott (1929) AC 482; In re South American and Mexican Company; Ex parte Bank of England (1895) 1 Ch 37. Indeed, O.36A, r.7(3) provides that an application for a review of an exercise of power by a Registrar shall not operate as a stay of the order under review. (emphasis added) 30Furthermore, a reading of transcript of the proceedings before Walton J on 27 November 2012 records that his Honour admitted pursuant to Order 3 the record, "subject to objection of course, the proceedings before the Tribunal and the appeal panel". 31During the proceedings before Boland J on 27 June 2013, Mr TJ Dixon of counsel, who appeared for the first respondent, submitted: Your Honour, that completes the evidentiary case for the respondent. Your Honour, just to confirm, there has been some discussion about the appeal book but as I understand it, given this is an appeal, the appeal book forms part of the record which is properly before the Court in this matter. HIS HONOUR: That is how I am treating it. 32There was no objection by the appellants to this course or an appeal from his Honour's decision by the appellants. 33In my view, it is erroneous to submit that the record of proceedings at first instance is unable to be considered in an appeal de novo. In Dare v Dietrich [1979] FCA 47; (1979) 37 FLR 175 Deane J stated (at p181): The statement in s. 26 of the Ordinance that "the appeal may be in the nature of a re-hearing" should not be construed in a narrow technical sense as meaning no more than that the appeal is to be determined as at the date of its hearing. The statement should be construed as conveying that the rehearing may be a hearing de novo upon which it is for the Supreme Court to pronounce anew on the rights of the parties as disclosed by the evidence before it (see generally, Phillips' case [1964] HCA 22; (1964) 110 CLR 347). As the use of the word "may" indicates, this does not mean that it will be necessary or desirable in every case for the parties to present their evidence afresh to the Supreme Court so that the appeal may be a rehearing de novo in every sense. Where questions of law or inferences from undisputed facts are involved, it may well be both convenient and appropriate for the evidence before the Supreme Court to consist of the record (if there be one) of proceedings before the tribunal. (emphasis added) 34Accordingly, there is no error in merely admitting or considering the record on an appeal de novo. This must be the position a fortiori in this case as the appellants rely heavily upon various errors made by the VTT and VTAP. 35Finally, the question of admissibility of the record was clearly a matter for Boland J. As the vast majority of matters complained of by the appellants involved alleged "error" by the VTT and VTAP (submitted as being in the form of denial of natural justice and bias), the respondent opposed leave inter alia on the basis of what was contained in the record. It was accordingly relevant. 36In circumstances where: (i) no issue was taken with the formulation of the Appeal Book (which included the record) (indeed it appears to have been consented to); and (ii) his Honour made it clear that "Order 3 will bring in the record, subject to objection of course, of the proceedings before the Tribunal", and (iii) there was no objection when Boland J indicated how he was treating the record, it must follow that the purported appeal from Walton J's order to admit the record before the Tribunal is incompetent. The prospects on appeal from this complaint would therefore be de minimis. 37In respect of the interlocutory decision of Boland J of 6 February 2013, no decision of this date, or error, is identified in the appellants' materials. To the extent that there was such a decision, the appeal is over three months out of time. 38In National Australia Bank Ltd v Cassino [2002] NSWIRComm 241; (2002) 137 IR 1, the full Bench in considering the principles that should apply in this Court in respect of interlocutory appeals, observed at [7] - [8]: [7] The general situation as to leave to appeal is to that extent somewhat different to that in other jurisdictions such as the Supreme Court although there appeals of the present kind are also subject to leave. We consider that a similar reticence to grant leave to appeal as to such matters as occurs in other jurisdictions should at least equally apply here. That is the approach which has been taken since the 1996 Act came into force and also by this Court's predecessors. For example, in Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 at 265 - 266 the following statement of principle was made: Principles as to interlocutory appealsSo far as we are aware, these proceedings are the first occasion on which this Court has had an opportunity to consider the principles applicable to appeals from interlocutory procedural decisions since the Industrial Relations Act 1996 (the Act) came into force some three years ago.It is therefore appropriate for this Full Bench to state shortly the appropriate approach which should be adopted in relation to such appeals. The predecessors of this Court and Commission, in line with the approach of the ordinary courts, have generally deprecated and discouraged such interlocutory appeals: see, for example Re Social & Community Welfare Services (State) Award and Other Awards (1984) 9 IR 305; Parramatta City Council v Health and Building Surveyors Association (NSW) (1988) 26 IR 398 at 401-402; Re Laundry Employees (State) Award (No 2) (1993) 49 IR 91 at 103; Chamber of Manufactures of New South Wales v Australian Chamber of Manufactures, New South Wales Branch (1994) 56 IR 307 at 310-311.The approach in this jurisdiction has paralleled that of the ordinary courts which is set out in, for example, Re the Will of F B Gilbert (1946) 46 SR (NSW) 318 at 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399-400; Partnership Pacific Ltd v Killen (unreported, Court of Appeal, but noted in Ritchie's Supreme Court Procedure NSW, Vol 2, at paragraph 13013); Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 644; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4) (1986) 6 NSWLR 674 at 685; Bank of New Zealand v Spedley Securities Ltd (In Liq) (1992) 27 NSWLR 91 at 95. The classic statement of the rationale for the approach adopted by the courts is the statement of Sir Frederick Jordan CJ in Re the Will of F B Gilbert where his Honour said at 323: "... I am of the opinion that ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal." [emphasis added] [8] The approach in principle is indeed further emphasised in this jurisdiction by the Legislature including, in the 1996 legislation, s 191(3) which obliges the Full Bench to "follow the principles applying to appeals from discretionary decisions". The significance of this situation has been recently considered and, in the course of that consideration, emphasised in a number of recent Full Bench decisions. See, for example, Western Sydney Area Health Service v Gibson and Pacific Healthcare (Australia) Ltd v AHI Healthcare Systems Pty Limited [2001] NSWIRComm 297 and the references in these cases to the judgment of the Court of Appeal in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274. The significance of s 191(3) and those authorities is that interlocutory procedural motions invariably involve the exercise of judicial discretion and often depend essentially upon exercises of discretion. That is certainly the situation here. In addition, Peterson J's judgment was consistent with the longstanding approach of this Court and its predecessors which has always been to deal with procedural issues in accordance with "modern judicial practice", on a essentially pragmatic basis: see, for example, Hyde v Energy Australia (1999) 92 IR 409 at 423, Western Sydney Area Health Service v Gibson at [24] and the cases cited therein, and Hitchcock v CSR Limited [2002] NSWIRComm 170 at [7] to [8]. 39In respect of the interlocutory judgment of Boland J of 19 March 2013, the appellants' complaint appears to involve an attack on the decision to refuse leave to issue summonses to various non-parties. His Honour had earlier refused an application to join additional parties: see Sparke v Vocational Training Appeal Panel. The summonses were sought from parties that the appellants had expected to be joined. They were not. His Honour's decision was clearly correct. Furthermore, the decision was clearly interlocutory and of a procedural nature. As I have already noted, appeals of such a nature are "generally deprecated and discouraged". In addition, the application to appeal in respect of this issue is over two months out of time and there are no materials before the Court to support a case for injustice or prejudice. 40I should also observe that the appellants lodged an appeal against Boland J's interlocutory judgment which came before Haylen J. When the substantive appeal resumed before Boland J, the appellants elected not to press the interlocutory appeal (see transcript of proceedings before Boland J dated 16 April 2013). 41It must follow that the appellants abandoned that appeal. 42In respect of the rulings made by Boland J on 13, 14, 24 and 27 June 2013, these have been made during the course of the substantive appeal proceedings which are currently part heard. No decisions, or errors, are specifically identified in the appellants' material. In my view, the appellants have not discharged the onus which falls upon them in respect of this ground. Whatever arguments the appellants may have in respect of the proceedings before Boland J must inevitably go to the core of what is in issue in those proceedings. The appellants may be successful in those proceedings. However, as the proceedings are currently part heard, any appeal to the Full Bench would be incompetent as there is no decision for the purposes of s 187 of the IR Act. 43In my view, in light of the authorities referred to earlier, the appellant has not raised an issue which may attract leave to appeal.

Extension of time 44As I have earlier observed, there is no specific explanation for the delay in lodging the appeal. There is relevant prejudice identified by the first respondent if an extension of time is granted and there appears to be little prospects of success on appeal. 45The guiding principle in relation to applications such as this is that the court should do justice between the parties and ensure the proper administration of justice: Tadic v Beslic (at [22]); Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436. I do not consider that there is a tangible basis for concluding an injustice may arise to the appellants in this matter if an extension of time were not granted. I consider that, having regard to the guiding principle, an extension of time should not be granted to bring the application for leave to appeal and appeal.

Order

1. The application for an extension of time is dismissed.
2. The appellants are to pay the costs of the first respondent as agreed or, as assessed, and shall be jointly and severally liable for such costs.

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