Tadic v Beslic

APPLICANT Ms E Tadic (by leave) LEGAL REPRESENTATIVES: RESPONDENT Mr D Beslic (in person)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Application to extend time to appeal against a decision of the Chief Industrial Magistrate given on 19 June 2000 in Matter No CIM 99/322

JUDGMENT [2001] NSWIRComm 107 1 These proceedings relate to an application by Marko Tadic (the applicant) for the extension of time within which to lodge an appeal against the decision of the Chief Industrial Magistrate of 19 June 2000 in which his Worship made orders against the applicant in favour of Damir Beslic (the respondent) as follows: "the defendant is ordered pursuant to the Industrial Relations Act to pay to the applicant the amount of outstanding wages and entitlements of $4,790.52 plus court costs of $54 and interest … to be calculated from 7 July 1997 to today at the rates prescribed by the legislation. ... The monies are to be paid to the Court within 28 days." 2 The present application was filed on 25 August 2000 and the parties were advised on the morning of 30 August 2000 that the matter had been listed before the Court to deal with the application to extend time, and also for the questions of stay and directions on 12 September 2000. 3 When the matter came before the Court on 12 September 2000, and although the application to extend time and associated documents had been filed for the applicant by a solicitor, he appeared without that solicitor although accompanied by his wife. During the proceedings on that day, notwithstanding that the respondent indicated that he was in a position to argue the question of extension of time, the Court formed the view that the applicant was not in a position to present his case. It should be observed that the respondent, although he indicated he was prepared to deal with the matter, said that he had been served with the notice of appeal and application to extend time only that morning when he was leaving his home and noticed the papers which had been apparently left in the vicinity of the front of his house. The possible explanation for this is provided by the applicant who indicated that his solicitor had, the night before, delivered the process to the respondent by putting the material in the respondent's letterbox. 4 The matter was accordingly stood over until 27 September 2000 and it was made clear to the parties that they were expected to deal with the application to extend time on that date. On that occasion the applicant's daughter, Ms Elizabeth Tadic, sought and was granted leave to appear for her father. Ms Tadic appeared, by leave, for the applicant throughout the proceedings which were also heard on 12 October and 20 November 2000. 5 On 20 November directions were given for the parties to file and serve all further material and submissions for the purposes of their respective cases. This process continued until 1 February 2001 (some time after the timetable expired) when judgment was reserved. 6 The proceedings have been complicated by the history of dealings between the parties prior to the commencement of the initial litigation and the effect of that history on the views of the parties of each other. Further complications have arisen from the circumstances of the proceedings which have included a series of allegations and counter allegations and reliance on a variety of tendentious and irrelevant material which has either been rejected as evidence or not considered. A number of adjournments were granted because of allegations of failure to serve material filed or to provide time to prepare material said to be required for the applicant's case. 7 Before proceeding further it is useful to refer shortly to the proceedings before the Chief Industrial Magistrate. The proceedings were filed on 8 March 1999 pursuant to s 365 of the Industrial Relations Act 1996 and were accompanied by an election to have the claim dealt with as a small claim under s 379 of the statute. The respondent claimed the sum of $4,790.52 for wages due under the Building and Construction Industry Labourers on Site (State) Award for employment as a "group three: builder's labourer" from the end of 1995 until 7 July 1997. A detailed calculation of the wages alleged to be due was attached to the application. It is unnecessary to set out in full the details of that calculation. It is sufficient to note that it was particular as to the hours worked, the hourly rate for the relevant periods and also the dates, times and places relevant to the work in question. The calculation was divided into four paragraphs, each relating to a particular period of work on a specified and different site in Marrickville where building work was said to have been carried out. 8 An examination of the file of the proceedings before the Chief Industrial Magistrate indicates that the matter first came before his Worship on 7 April 1999 and subsequently on 8 September 1999. On the latter date the matter was stood over for hearing on the basis of an estimate of half a day and directions were made that the applicant was to file and serve the affidavit material relied on by him by 28 February 2000 and the respondent to file and serve any affidavits in reply by 14 March 2000. The matter was set down for hearing on 3 April 2000. The file reveals that late in March a letter was received on behalf of the applicant from a social worker at Royal Prince Alfred Hospital indicating that the applicant was unable to attend for the hearing on the date set. Although the file is not entirely clear, it appears that the application to vacate the hearing date was granted and the matter was stood over for hearing at 10 a.m. on 19 June 2000. The reason why it was not necessary at the directions hearing in September 1999 to issue directions as to the primary material upon which the respondent relied was that he had filed such material by way of a detailed affidavit and a number of annexures earlier that month. The file indicates that the affidavit and associated material were provided to the respondent on the morning of 8 September 1999. 9 When the matter came before the Court on 19 June 2000 there was an appearance on behalf of the respondent (the complainant in the proceedings before the Magistrate) but no appearance by the applicant (the defendant in the proceedings before the Magistrate). It appears that the defendant's name was called outside the Court and upon his non-appearance his Worship was advised by the respondent that he was ready to proceed with his matter and the transcript records the following from both his Worship and the respondent: Bench: Yes, I've read the Court papers here this morning, there's no appearance of Mr Tadic today. Have you had any contact with him lately? Complainant: No, the last contact I made with him was on 14 March when I mailed him all my evidence I submitted here in Court Registry and I also ask him to mail me his evidence in return but he's never been willing to cooperate and I never heard of him, so. Bench: Yes, there's been no appearance of the defendant today. I note that this matter is a small claim. I also note too that I've read all the documentation before the Court.

His Worship then made the orders referred to earlier. 10 The chronology after the hearing on 19 June 2000 is then rather complicated. It includes the following: (a) On 21 June 2000 the Registrar of the Court at the Downing Centre (being the Court at which the Magistrate was sitting) advised the applicant in writing of the determination and orders made by the Court on 19 June 2000. (b) On 5 July 2000 the applicant lodged an application to annul the decision under s 100D of the Justices Act 1902. The Registrar of the Court at the Downing Centre advised both the applicant and the respondent that this application was filed in error "as it is not applicable under this jurisdiction" and the parties were also advised that the order made on 19 June 2000 remained enforceable and the only avenue of review available was by way of appeal to the Industrial Relations Commission of New South Wales (c) It appears that a sheriff's officer then attended the applicant's home and soon after the present application was filed on 25 August 2000. 11 At that time the applicant filed an application to extend time to appeal and a notice of appeal and also an application for leave to appeal. Attached to the latter document is an affidavit. These documents, although in rather brief terms, nevertheless appear to have been prepared by a solicitor. Those documents include the solicitor's address for service. Notwithstanding that the solicitor did not file a notice of ceasing to act until 26 October 2000, the solicitor has not appeared during any of the proceedings before the Commission. It was clear that the solicitor had in fact ceased to act well before that date. 12 The application to extend time to appeal includes the following reasons why the appeal was not filed in time and the grounds for claiming an extension of time in the following terms: F. Reasons why the appeal was not filed in time: 1. The applicant applied for a s 100D application to annul the decision.

2. When the court advised him that s 100D did not apply in the Industrial Relations Commission, he was already out of time to file his appeal.

3. The applicant was further delayed by illness and his difficulty in understanding the English language.

G. Grounds for claiming an extension of time: The applicant has a valid defence to the order made and it would be unjust for him not to be able to appeal. 13 The notice of appeal in the sections of the document dealing with the questions raised by the appeal and the grounds for appeal contains the following:

F. The question raised by the appeal is: No contract or agreement existed between Marko Tadic and Damir Besic. G. Grounds of appeal are: 1) The appellant was unavoidably detained on the day. 2) He has a valid defence to the claim. 14 Finally, the application for leave to appeal indicates that the grounds for that application is that the appellant was late for the hearing because of medical reasons and refers to the attached affidavit which is in the following terms having been sworn on 24 August 2000:

1. I am the defendant in these proceedings. 2. I broke my leg on 29 March 2000 and since then have been undergoing treatment by Dr Mark Horsley, Orthopaedic Surgeon. 3. On 19 June 2000, the day of the hearing my leg was out of the cast but not yet healed. 4. I was on my way to attend Court but the pain in my leg and my inability to walk down the stairs at the railway station caused me to be late and the judgment was given before I arrived. 5. On my behalf my wife filed a 100D form on 5 July 2000 to annul the conviction. 6. On 13 July 2000 I received a letter from court that I had to appeal to the Industrial Relations Commission. 7. The time of my appeal was already past. 8. I say that I have been unfairly prejudiced in having this default judgment entered. I say that I was legitimately hindered due to a medical condition. I did attend court on the day of the hearing and attempted to explain my situation. 15 In submissions made on the applicant's behalf, both orally and in writing, Ms Tadic submitted that on 14 July 2000, the day after the applicant was advised the S 100D application had been filed in error, he attended the office of Hovan & Co and was "assured" by the principal of that firm and an employed solicitor "that they would take care of everything". Reliance is also placed on the fact that because of the applicant's impecuniosity he could not enter a costs agreement required by the solicitors. Also said to be relevant was the consideration that "during the whole of the period of delay, the applicant was having to deal with his own disabilities; namely his alcoholism and a fractured leg". 16 As to the appeal itself, it was submitted on the applicant's behalf that, inter alia, not all of the evidence filed by the applicant was in the Court file when the decision was made "which would have prejudiced the Chief Industrial Magistrate's decision"; the applicant was never a builder, never held a builder's license and has been medically unfit for work since injuring his back in a motor vehicle accident in 1987 prior to which he worked as a plasterer. Further, that there was never any agreement between the parties and certainly not the agreement which was the basis of the Chief Industrial Magistrate's decision. The only evidence the respondent had before the Magistrate was hearsay or from relatives or both. The respondent was said to have taken advantage of the applicant because of his education and intelligence whereas the applicant migrated from a peasant village in 1969 and never had the opportunity to obtain an education; he had always worked in labouring or factory jobs. Principles to be applied 17 There are a number of recent judgments of the Commission as to the issues in these proceedings. This situation enables me to abbreviate the consideration of the authorities that would otherwise be necessary. It is sufficient to note that the principles have been recently and usefully stated in a number of judgments including New South Wales Teachers' Federation and others and the New South Wales Office of the Board of Studies [2000] NSWIRComm 1; LEP International Pty Limited v Caine (2000) 97 IR 35; and Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (2000) 97 IR 436. Those judgments rely on a number of less recent authorities, including Skelly v Prouds Jewellers Pty Limited (1994) 53 IR 3; WorkCover Authority of New South Wales v Parkes Council (1996) 70 IR 298 at 299 - 301; and De Luxe Cab Co Limited v Grenside (1999) 92 IR 304. 18 It is sufficient for the purposes of the present application to approach the matter in the manner dealt with in two recent judgments. The first is the judgment of New South Wales Teachers Federation and The New South Wales Office of the Board of Studies at [21] - [23] and also the judgment of Hungerford J in Van Rooy Machinery Pty Ltd v WorkCover Authority of New South Wales at [16] - [17]. At paragraph [16] of that judgment his Honour set out the following principles by reference to the cases there specified:

The principles which the Court follows in considering an application to extend time to appeal were set out in a decision of a Full Bench ( Bauer, Hungerford and Schmidt JJ) of the Court in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299-301 in the following terms: "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 V-P, Maidment J and French C) 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 Limited [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. (I interpolate here that under the present rules it is now 21 days) 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.'

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.

(2) An application that the industrial court decides to deal with under this section is called a small claims application.

(3) The maximum amount that the industrial court may order an employer to pay on a small claims application in respect of any one employee is: (a) except as provided by paragraph (b) $10,000, or (b) if some other amount is prescribed by the regulations for the purposes of this section that other amount.

(4) The industrial court is not bound by the rules of evidence when dealing with a small claims application, but may inform itself of any matter in such manner as the court thinks fit.

(5) A party to proceedings on a small claims application may be represented by an agent, but is not entitled to be represented by an agent who is a practising legal practitioner unless the industrial court so approves. That approval is not to be given unless: (a) all parties to the proceedings agree, and (b) the industrial court is satisfied that the parties (other than the party who applies for approval) or any of them will not be disadvantaged.

(8) A contravention of subsections (5) - (7) does not invalidate the proceedings or any order made in those proceedings. 25 The particularly relevant part of that provision is s 379(4) which provides that the Court dealing with the matter is not bound by the rules of evidence but may inform itself of any matter in such manner as the Court thinks fit. In that context I have reviewed the extensive material filed by the respondent (the complainant at first instance) in the Court file and also the directions which had been given by the magistrate as to the preparation of the matter. I have also considered the material filed by the applicant. I did not consider it either feasible or appropriate to give weight to the strenuously put submission on behalf of the applicant that certain material filed by him was omitted from the file, nor to the evidence said to support that submission. In reviewing the material I have taken into account that the respondent is obviously a very intelligent and highly educated young man and, certainly in that respect, is in a different situation to the applicant. I have also taken into account the personal difficulties that have been referred to in relation to the applicant including his difficulties as to the English language and the fact that he had suffered a serious injury which had led to the vacation of the proceedings in April this year. 26 I have accordingly reviewed that material since I consider that the appeal in this matter would not be limited to the fact that his Worship proceeded in the absence of the applicant. It would also be necessary to have regard to the applicant's claim that he has a valid defence, the material before his Worship, and his Worship's comments in determining the application. There must also be regard to the nature of the proceedings at first instance. Considered in that way, it could appropriately be held that the prospects of the appeal succeeding are extremely limited and indeed could properly be said to come close to a futility. It is also unlikely that the necessary leave to appeal would be granted. In my view, those conclusions as to the prospects of success of the appeal and the very limited prospects of the application for leave to appeal represent, in terms of the applicable principles, a further basis on which the application should be refused. 27 Accordingly, the Court makes the following orders: 1. The application to extend time to appeal made by Mr Marko Tadic is dismissed. 2. The stay of the orders made by the Chief Industrial Magistrate on 19 June 2000 which was granted on 26 October 2000 and continued on 20 November 2000, is lifted.

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