WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council

APPELLANT Mr S Crawshaw, SC and Ms P Lowson of Counsel (NSW Teachers' Federation) LEGAL REPRESENTATIVES: Mr Griffiths (NSW Independent Education Union) RESPONDENT Mr G De Courcey, Solicitor

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

NEW SOUTH WALES TEACHERS' FEDERATION AND OTHERS AND NEW SOUTH WALES OFFICE OF THE BOARD OF STUDIES. Application to extend time to appeal, leave to appeal and appeal against a decision of Justice Schmidt given on 17 December 1999 in Matter No. IRC 6190 of 1999.

1 HIS HONOUR: This is an application by the New South Wales Teachers Federation, the New South Wales Independent Education Union and the National Tertiary Education Industry Union (New South Wales Division) for an extension of time in which to lodge an appeal from a decision of her Honour Justice Schmidt delivered on 17 December 1999 in Matter IRC99/6190. I shall, as appropriate, refer to the applicants for an extension of time as "the unions".

2 The respondent is the New South Wales Office of the Board of Studies which is the employer of the persons the subject of the proceedings - that is persons employed as HSC markers. As I indicated to the parties, I had, soon after her Honour delivered judgment at first instance, read her Honour's decision. I am therefore reasonably familiar with the issues raised in the proceedings.

3 The basis upon which the application for extension of time is put to the Commission is set out in an affidavit of Ms Brenda Seymour sworn today together with certain overlapping references in other materials filed. Ms Seymour is an official of the New South Wales Teachers' Federation. It is sufficient to note that Ms Seymour's evidence indicates that instructions were provided to counsel to lodge an appeal against her Honour's judgment shortly before Christmas. The matter was considered apparently between that time and just before the New Year and advice was given that rule 136 of the Industrial Relations Commission Rules 1996 in effect resulted in the 21 day time limit relevantly provided to lodge an appeal being extended by the period between 25 December 1999 and 2 January 2000. That advice was given by reference to rule 42 as providing the time for lodging the appeal.

4 The application for leave to appeal and appeal was finalised on 13 January and two attempts were made to file the relevant documents the next day, 14 January. However, filing of the application and notice of appeal was rejected by the Acting Industrial Registrar on the basis of s 189 of the Industrial Relations Act 1996 (the Act).

5 It is convenient to set out the relevant provisions of the Act and Rules.

6 Section 189 of the Act is in the following terms: (1) An appeal to a Full Bench of the Commission under this Part must be made within 21 days of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows.

(2) Further time may be allowed, either before or after the end of that 21 day period. 7 Rule 42 provides: 42(1) [Time Limit for Appeal] Unless otherwise provided, an appeal must be made within 21 days after the date of the decision appealed against (or such further time as the Commission allows, before or after the expiration of that period).

42(2) [Application for Extension of Time] An application to extend time to appeal may be included in the notice of appeal or may be made by separate notice of motion. 8 Finally, rule 136(1) provides: 136(1) [Reckoning time to exclude vacation] In reckoning the time fixed by these Rules or in any judgment or order for the doing by a party of any act, the period from the beginning of 25 December until the end of 2 January next following must, unless the tribunal otherwise orders, be excluded but business may be done during that period. 9 The difficulty in this matter appears to have come about by the fact that rule 42 is drafted in a way as would appear to indicate that the "drafter" was not immediately aware that the time to appeal was laid down quite specifically in s 189 of the Act, although subject to the provision in that section of broad powers to either a Full Bench or a Presidential Member to grant an extension of time in which to appeal.

10 Mr Crawshaw, of Senior Counsel, for the unions accepted that the advice originally given was in error. However, he relied heavily upon what I might term - and these are my words, not counsel's - the superficially deceptive impression given by rule 42.

11 When rule 42 is read with rule 136 one can readily see that the view one would immediately come to when looking at those two rules together is that rule 136 does in fact apply in the present circumstances. The difficulty is that rule 42 probably has little practical scope. It certainly does not override the terms of s 189.

12 True it is that rule 42 does commence with the phrase "unless otherwise provided". However, since it appears that virtually all of the appeals to Full Benches of the Commission - whether they be from a decision of a member of the Commission under s 187, from the Registrar under s 194 or from a Local Court under s 197 - are subject to s 189, it appears that rule 42 has no practical or actual effect for present purposes.

13 I observe in this regard that s 189 is expressed as relating to "an appeal to a Full Bench of the Commission" made "under this Part" and thus encompasses the whole range of appeals I have referred to. The only exception is an appeal under s 196 which is subject to an entirely different regime.

14 One can understand how at the time of year at which the relevant decisions came to be made in this matter that an error of the kind under consideration could have occurred. It may nevertheless be useful to briefly indicate shortly what I consider to be the proper approach to the relevant questions of construction.

15 The time for filing relevant appeals is fixed by s 189. The power to extend time is also to be found in that section and is not governed or regulated by rule 42(1). Rule 136, which has been earlier set out, specifically refers to the "reckoning the time fixed by these rules or in any judgment or order" and further provides that the period from the beginning of 25 December till the end of 2 January must, unless the Commission otherwise orders, be excluded for the purposes of reckoning of time. Because that rule refers only to times fixed under the rules or in any judgment or order, that rule does not provide a basis for the exclusion of the period referred to in it, for the purposes of reckoning of time or effectively for an extension of time for the purposes of s 189. There was some debate as to when the appeal should have been notionally lodged or the time for lodging an appeal would have run out, in the light of the erroneous view taken as to the applicability of rule 136. This occurred to found the argument that all that needed to be considered here was the fact that erroneous advice was relied upon and, on the authorities (including the judgment of Hungerford J subsequently referred to), a party should not suffer because of the fault of a legal representative.

16 In that regard reliance was placed on s 36 of the Interpretation Act 1987. The relevant parts of that section are as follows:

(1) If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event. (2) If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of any thing falls - (a) on a Saturday or Sunday; or (b) on a day that is a public holiday or bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be. 17 Although that section does not relate to the reckoning of time under the rules (see r 133(5)) it does apply to the reckoning of time for the purposes of the provisions of the Act such as s 189.

18 Senior counsel for the unions constructed a complex argument as to how, when one read s 189 of the Act and s 36 of the Interpretation Act and one has regard to the erroneous view of rule 136, the filing of the appeal - paying due regard to the admitted error - meant that if the advice had been correct the appeal would have been either in time or well in time. I do not consider I need to discuss that ingenious argument in any detail. In my view s 36 of the Interpretation Act required the notice of appeal to be lodged by Friday 7 January 2000 and therefore the appeal, by being lodged on 17 January 2000 was ten days out of time, although an attempt was made to file it on 14 January; that is seven days out of time. I should indicate in relation to the period of ten days, that included two weekends, so that it was lodged approximately six working days out of time.

19 The primary argument submitted by Mr de Courcey, solicitor for the employer, was that the time fixed by the section was the time that the Commission should have regard to; the appeal had not been lodged in time and on a proper analysis of the argument relied upon, it does not justify the appeal being filed as late as it was.

20 During the course of Mr de Courcey's submissions he accepted that his client could not seriously place before the Commission in relation to this application an argument that it had been prejudiced by the late filing of the appeal or that it could argue that the appeal was futile.

21 The Commission and its predecessors have in the last few years considered the question of extension of time in some detail. I think it is sufficient to indicate that many of the considered or reported judgments deal with much more complicated applications or issues than the present application and some of them indeed deal with matters which raise other questions of principle which are not relevant to the present proceedings. In the latter respect I refer, by way of example, to the Full Bench judgment of the Commission in Court Session in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299-301, a judgment which I followed and applied in The De Luxe Cab Company Limited (formerly known as Deluxe Red and Yellow Cabs Cooperative Trading Society Limited) v Grenside (unreported, 5 January 1999). The Parkes Council case related to an out of time application, albeit only by a few days, in relation to a prosecution appeal against sentence. It seems to me that questions of principle raised by such an application do not apply here.

22 I should however note that many of the principles discussed in that judgment are relevant here. For example, that the grant of an extension of time is not automatic and the object of statutory provisions fixing a time to appeal is to ensure, so far as is reasonable, that the times fixed are obeyed. However, it is clear on the authorities that the times fixed - be they fixed by rules or statute - are not intended to be instruments of injustice and generally speaking the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties. In that regard the authorities make clear (Parkes Council at 300): 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. 23 I also had regard to the judgment relied upon by counsel for the unions. That is, the unreported judgment of Hungerford J dated 22 June 1990 in Famonselle Pty Limited v Nairne. I consider, as did Hungerford J, that it is relevant that no serious argument has been put in relation to the question of futility of the appeal or as to any prejudice if the application is granted. That is significant.

24 Applying the principles I earlier referred to, extracted from the Parkes Council case, I consider that having regard to the history of this litigation and to the conduct of the parties, what happened here can properly be described as a genuine and understandable error. I consider that it can also properly be found that if the extension of time was not granted there is a real potential for a grave injustice to the appellant unions and to their relevant members. On the other hand, I could not find that there would be any injustice to the employer if the extension of time was granted.

25 In those circumstances I grant the application to extend time.

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