We too accept the above approach by the Commission as apt to apply, having in mind the identity between the relevant rules, in determining an application for extending the time for filing a notice of appeal in the Court."
19 The other authority I should refer to is the judgment relied on in the Teachers Federation case referred to earlier. That is, the judgment of Hungerford J in Famonselle Pty Limited v Nairne (unreported, 22 June 1990). In that case, his Honour considered a submission that an application to extend time to appeal should be refused because the appeal would be futile (see pages 5 and 7 of the unreported judgment). His Honour did not conclude that the appeal in that matter would be futile but it follows, in my view, that his Honour's judgment is authority for the proposition that it is appropriate to assess the strength of the appellant's case and in that context if it be found that the appeal would result in a futility, then the application to extend time is likely to be refused.
20 The authorities emphasise the importance of the applicant for extension of time demonstrating a proper basis for failure to comply with the rules. In other words, a reason why the appeal was not lodged in time and material which shows that the refusal of the application would constitute an injustice.
21 The chronology in this matter indicates that there was a basis for lodging the appeal out of time but the question is whether there is a basis shown for the lodging of the appeal when it occurred. That is, whether the amount of time involved in the present late application is justified. The relevant decision was made on 19 June 2000 which means that the time for lodging the appeal would have expired on 10 July 2000, 21 days after the initial decision. The present application was lodged some six to seven weeks outside that period and although there is some explanation initially because of the wrong choice of appellate forum, that does not explain the subsequent delay after the applicant was advised on 13 July 2000, as conceded in his affidavit, of the correct avenue of appeal. The present application to extend time was not lodged until 43 days after the applicant was advised of the correct avenue of appeal. And even if it was accepted (and it should not be assumed that it is accepted) that he then had 21 days from that date to lodge the appeal, the appeal was lodged a further 22 days beyond that time.
22 Consideration has been given to the explanations relied on by the applicant, including what is said as to the role of the firm of solicitors consulted by him. A letter from the principal of that firm to the Registrar was made available, at the Court's direction, to both parties and was tendered by the respondent without objection from the applicant. To avoid any possible unfairness to the applicant the Court is disinclined to have regard to that letter. The difficulty for the applicant, however, is that the version of events in the crucial period which he needs to have accepted is improbable. Making every allowance in his favour and even taking a critical view of the solicitor's role (which should be clearly stated is not available on any evidence before the Court) it is not possible to accept that the applicant was completely assured in such a way, as is submitted on his behalf, that he had nothing further to attend to. The Court does not accept that such an assurance was likely to have been, or was, given. The Court finds that the applicant failed to progress his application to extend time in an appropriately diligent way until the Sheriff's Officer attended his home to enforce the Chief Industrial Magistrate's order. To find that these circumstances fulfilled the accepted tests for an extension of time is not available. To do so would be contrary to the guiding principle as stated by Hungerford J in Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) at [33] where his Honour said:
Essentially, it seems to me, in deciding whether or not to grant an application to extend time to appeal, comes down to the proposition of doing justice between the parties and ensuring the proper administration of justice.
23 In my view, there is nothing before the Court which provides an acceptable explanation of the delay. As noted, the only inference available from the material is that the applicant did not deal with the matter seriously until the Sheriff's Officer attended his house to enforce the order. I consider that it is appropriate for the Court on that ground alone to decline to grant the application to extend time and on that basis the application is declined.
24 However, there is another basis which I consider both separately and cumulatively provides the appropriate basis to exercise the discretion against the applicant's present application. One may commence with the premise that there may be circumstances in which it would be appropriate, where a party has not appeared before the magistrate and there is some basis to consider that the party is likely to have been present and was not there only because of some misunderstanding, that the appeal against an adverse decision by a magistrate would set aside the decision and the matter remitted to the magistrate for further hearing: see, for example, Tadros v Amin (unreported, Full Bench, 10 May 1999). Nevertheless, it is appropriate in this matter to have regard to the nature of the proceedings before his Worship. They were proceedings under s 379 of the Industrial Relations Act (the small claims provision) the relevant terms of which are:
379 Small claims procedure
(1) A person who makes an application to an industrial court for an order under this Part may request that the application be dealt with under this section.