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Workplace Relations Act 1996

s.45 Appeal against decision in Print PR924588

issued by Senior Deputy President Harrison on 12 November 2002

Lee Jarrad Jervis


Coffey Engineering Group Pty Ltd


s.170CE application for relief in respect of termination of employment

Lee Jervis


Coffey Engineering Group Pty Limited






Section 45 Appeal re extension of time to file an application under s.170CE(7).


On 28 January 2003 we refused leave to appeal in this matter and said we would publish our reasons. These are the reasons.

[1] This is an appeal, for which leave is required, against a decision of Harrison SDP not to extend the time for filing an application alleging unfair dismissal. The position was summarised by Harrison SDP in paragraph [1] of her decision of 12 November, 2002 [Print PR924588]. On the appeal the appellant took no issue with the summary:

[2] The provision under which the extension was sought is s.170CE(7) of the Workplace Relations Act 1996 (the Act). It states:

[3] Associated with that is the note appended to s.170CE(7A):

[4] The decision of Harrison SDP was published on 12 November 2002. The notice of appeal and application for an extension of time were filed on 16 December, 2002. Rule 11(2) of the Commission's Rules requires that an appeal be instituted before the end of 21 days after the date of the decision or, on application, within such further time as is allowed by a Full Bench. In the circumstances of this matter we have decided to extend the time for filing the notice of appeal to permit its receipt.

[5] We turn to consider the appeal.

[6] The appeal is brought under s.45 of the Act. Section 170JF is relevant. It provides:

[7] It is clear from the terms of s.170CE(7) that the Commission is given a discretion to grant or withhold the extension sought before Harrison SDP. This means that the exercise of the discretion may be reviewed if the decision offends the principles laid down in House v. The King [(1936) 55 CLR 499] (see Construction, Forestry, Mining and Energy Union v. Giudice [1998] 159 ALR at pp 28-9). At p 504 of House v. The King Dixon, Evatt and McTiernan JJ. state:

[8] With this in mind we have examined the decision under appeal.

[9] As a preliminary her Honour set to one side a question whether the issue of an extension of time relates to a matter about which a motion to dismiss for want of jurisdiction is well founded. This forms no part of the decision and is not raised on the appeal.

[10] After that her Honour considered the explanation given by Mr Collins(for the applicant) and found it inadequate in several respects. Her Honour said:

[11] On the appeal Mr Collins made much of a submission that the Senior Deputy President should have raised with him any queries which subsequently formed part of her Honour's decision. As to this we note that her Honour asked the appellant's representative if he had anything else to put [transcript of 4 November 2002, PN5-7]. He did not. The situation is the same as that referred to by Deane J in Sullivan v. Department of Transport [(1978) 20 ALR 323 at 343]:

[12] It is the responsibility of parties to put the whole of their case properly, and to call all relevant evidence, at first instance. The process in the Commission is not inquisitorial. As a result, failure to call all relevant evidence may not be sufficient to justify the granting of leave to appeal (see: Ross VP, Drake DP and Palmer C in Uink v. Department of Social Security, Print P7680, 24 December 1997; and Polites SDP, Watson SDP and Gay C in Parker v. Office Interiors Pty Ltd, Print Q5712, 2 September 1998).

[13] Prejudice to the respondent was referred to but not considered as militating against the applicant because there was no representation on behalf of the respondent. The merit of the applicant's claim was considered as neutral in the circumstances by the Senior Deputy President.

[14] The statutory note appended to s.170CE(7) and (7A) refers to the decision in Brodie-Hanns v. MTV Publishing Ltd [(1995) 67 IR 298] and the matters there set down are considered relevant by the Commission. While the absence of an adequate explanation is not immediately damning for an extension of time the first of those principles is worth restating:

[15] In light of the submission on appeal that there is no prejudice to the respondent we draw attention to principles (3) and (4) in Brodie-Hanns:

[16] It was put that the High Court in Brisbane South Regional Authority v. Taylor [(1996) 186 CLR 541] had held that the relevant test in the exercise of a Courts discretion is to balance the right of an applicant to bring an action and have his claim heard against the prejudice to a respondent to have a fair trial as the result of any delay. Having referred to a passage in the majority decision in the Court below in that matter Toohey and Gummow JJ said [at p.547 of the report]:

Her Honour's decision did not rely on prejudice to the respondent in coming to her conclusion. There was therefore no inconsistencies with the decision relied on.

[17] This decision, like Morrison v. Judd [Court of Appeal NSW, unreported CA 40504/95] and the others referred to in the appellants submission are concerned with general principles with which Brodie-Hanns is not inconsistent. Morrison v. Judd is said to be authority for the proposition that if the applicant is "blameless" an extension of time should be granted. Such a consideration is comprehended in the first consideration in Brodie-Hanns [set out in paragraph [14] hereof].

[18] Her Honour found the explanation for the delay wanting. She assessed merit and prejudice and the other items mentioned in Brodie-Hanns were not canvassed. She exercised her discretion on the basis of findings which were reasonably open to her.

[19] In view of the appellants reliance on Bayne v. Bailleu [(1908) 6 CLR 382 at 396] and on the observations of Gaudron, McHugh, Gummow and Hayne JJ in Agar v. Hyde [(2000) 201 CLR 552 at 575-6] (Agar) we draw attention to the fact that the Commission, in considering an application for extension of time, does not decide the issue on merit except in the clearest cases. In Agar their Honours say:

[20] In Kornicki v. Telstra - Network Technology Group (Print P3168) (Kornicki) a Full Bench of the Commission said, apropos merit:

[21] In the instant case her Honour has acted consistently with that statement on the issue of merit and the reference in Kornicki is consistent with the observations in Agar.

[22] We are unable to find any error in the decision of the kind described by the joint judgement of Dixon, Evatt and McTiernan JJ in House v. The King referred to above.

[23] We refuse to grant leave to appeal.




I. Collins for the appellant.

S. Ingui for the respondent.

Hearing details:



January 28.

Printed by authority of the Commonwealth Government Printer

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