WorkCover Authority of NSW (Insp Salmon) v Parkes Council

CASES CITED: WorkCover Authority of NSW (Insp Salmon) v Parkes Council (1996) 70 IR 298 Cavacuiti v Toyota Motor Group Aust Ltd (2002) 122 IR 247

HEARING DATES: 20/04/06 EXTEMPORE JUDGMENT DATE: 04/20/2006

LEGAL REPRESENTATIVES: Respondent: Mr M.J. Booth Employment Advocacy Solutions Pty Ltd

• 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Jia Ju Huang to extend time to appeal and leave to appeal and appeal against a decision of Commissioner Ritchie given on 7.12.05 in matter no. IRC3257 of 2005

1 This is an application brought pursuant to s189 of the Industrial Relations Act 1996 (the Act) by Jia Ju Huang for the grant of an extension of time for leave to appeal and appeal a decision of Commissioner Ritchie handed down on 7 December 2005. The applicant represented himself before Commissioner Ritchie.

2 In his decision, the learned Commissioner found the termination of the applicant was for reasons of redundancy as a consequence of a restructure rather than, as the applicant submitted, that he was terminated after making a claim for workers' compensation four months earlier. 3 The claim for workers' compensation was made in January 2005. The termination occurred on 20 May 2005. At the time of termination, the applicant had returned to work. 4 The history of the litigation is relevant to my consideration of an extension of time application. On 17 January 2006, solicitors representing the applicant filed an application for an extension of time and an application for leave to appeal and appeal. The application for leave to appeal and appeal carried the date of 29 December 2005. That date becomes relevant to my consideration. Evidence was led which reveals the applicant approached Legal Aid within days of the Commissioner's decision being handed down. He sought advice as to his rights of appeal. Legal Aid made an appointment for him on 21 December 2005, the Wednesday before Christmas. 5 Not until 21 December 2005 did the applicant know about the 21 day statutory limitation on leave to appeal and appeal applications (s189 of the Industrial Relations Act 1996 and Rule 42 of the Industrial Relations Commission Rules 1996). Legal Aid advised him of the extension of time requirement and expressed the view he had a right to appeal. They gave him no advice on how to mount such an appeal. 6 The applicant then found a solicitor "in Chinatown". He attended that office and said he paid monies and that led to the draft document of appeal dated 29 December 2005. When he paid his solicitors, the applicant said he was given the appeal documents. 7 However, the document was not filed along with an extension of time application until 17 January 2006. It was therefore, taking into account the Christmas vacation and the nine days allowed under Rule 136, out of time. 8 The matter then came before me for mention on 25 January 2006. The applicant's solicitor attended. The matter was listed for hearing on 30 January 2006. There was then correspondence between the parties and the court as to taking the matter out of the list for a number of reasons, including the illness of the applicant, as supported by a medical certificate. The matter was first stood over to 3 March 2006 and then today's date, 20 April 2006. 9 On 9 March 2006, the applicant's solicitor faxed to the Commission a notice of ceasing to act. 10 The applicant comes before me today unrepresented and requiring the assistance of a Mandarin interpreter. The applicant's application for an extension of time is opposed by the respondent. 11 The applicant submits that he is not well, that he has been trying to get a solicitor and Christmas has also intervened and for various reasons he wishes to get legal aid and another solicitor and to keep trying to appeal. The applicant has made clear he always wished to pursue his rights of appeal. 12 The respondent opposes the application. The respondent acknowledges the various principles required with the consideration for an extension of time to be made and while the respondent presses the ground that the application was filed out of time (s189), the respondent places more force upon the submission that the applicant does not have any reasonable grounds of appeal. 13 The grounds of appeal in the document filed for leave to appeal and appeal states: (1) The Commission did not consider s95 of the Industrial Relations Act 1996 in respect of the appellant's application for unfair dismissal in the decision.

(2) The matter raises the important questions of practice and procedure in unfair dismissal cases. 14 The respondent submits the application was brought under Part 6 of the Act and therefore s95 relevant to a Part 7 application was not a necessary consideration of the Commissioner. Section 95 is in the following terms: 95 Presumption as to reason for dismissal (1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured employee was dismissed because he or she was not fit for employment as a result of the injury received. (2) That presumption is rebutted if the employer satisfies the Commission that the injury was not a substantial and operative cause of the dismissal of the employee. 15 Relevantly, the section requires a consideration in an application for reinstatement for a consideration of the rebuttal by the employer that the injury was not substantial and not the cause of the dismissal of the employee.

Relevant Act and Rules 16 Relevant to an extension of time application are the following provisions: Section 189 189 Time and procedure for making appeals (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.

Rule 42: 42 Time to appeal (1) 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). (2) An application to extend time to appeal may be included in the notice of appeal or may be made by separate notice of motion.

Rule 45: 45 Interlocutory decisions Any decision made in any proceedings before a tribunal prior to a final decision in those proceedings is to be taken for the purposes of appeal to have been made on the same date as the date of the final decision.

Rule 136(1) provides: 136 Vacation 136(1) 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. . . .

17 With the assistance of the parties, I have before me the unfair dismissal application that was filed. The application was filed by the applicant himself. The applicant made it clear in the application and at the hearing that he only sought reinstatement on the grounds that his dismissal was the result of the injury he received. CONSIDERATION 18 The procedures adopted in the Commission governing whether or not to grant an extension of time in which to lodge an appeal require the Commission to take into consideration "all relevant circumstances in order to evaluate the requirements of justice. These circumstances will include the prospects of success of the appeal, injustice and prejudice" (Cavacuiti v Toyota Motor Group Australia Limited (2002) 122 IR 247 at [65]). 19 In WorkCover Authority of NSW (Insp Salmon) v Parkes Council (1996) 70 IR 298 (as adopted by Walton J, Vice-President in Cavacuiti) the following propositions were enunciated at [41]: ( 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 Australia 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 therefore 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. 20 I am persuaded in the use of my discretion as follows: there was not compliance with the Rules of the Commission. I note the very fair submission of Mr Booth in the circumstances, who does not give up the ground as to delay but presses a more significant submission. I do not intend to cast any punitive comment on the acts of the applicant's former solicitor but judgment was handed down on 7 December 2005. An appeal under the Act should have been filed by 28 December 2005. The appeal was drafted by 29 December 2005 but not filed until 17 January 2006. The applicant sought legal assistance straight after the decision was published and gains the advantage of the concession of nine days as per Rule 136 to extend time. The solicitors were tardy in filing. The applicant is several days out of time. In the use of my discretion, I do not believe, in such a circumstance the applicant should suffer detriment. 21 I do not believe it will create an injustice having regard to the history of the proceedings and the conduct of the applicant to allow at least an extension of time related to the element of delay. 22 However, I must also consider the prospects of success of the applicant. That is the dilemma in this matter. It appears to me right from the filing of the claim that the applicant at the relevant times was self represented. He asserted he was not dismissed for reasons of redundancy but because of his illness. While the learned Commissioner considered the facts, he did not consider the effect of s95 of the Act. The respondent asserts s95 should not have been a relevant consideration as the claim was made and heard under s6 and not s7 of the Act. No court documentation establishes this. The application is hand written, was filed by the applicant, who needs the assistance of an interpreter. 23 In circumstances where the applicant was self represented and, I am satisfied, genuinely requires an interpreter, it may have been necessary for the learned Commissioner to consider the application of s95 of the Act. 24 I do not have to determine whether leave to appeal will be granted or that the s95 ground is a ground sufficient for a successful appeal but simply whether there may well be a prospect for the applicant to succeed in an appeal and I am so satisfied. 25 I say this in the context where the applicant was self represented and the issue of injury was raised from the initiating process. The application of s95 to these facts is open to argument. 26 The question of justice between the parties must be balanced in a consideration of the use of the Commission's discretion. The ultimate exercise of my discretion is governed by the requirements of justice in the particular case. I intend to grant the extension of time to appeal after considering all the material before me.

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