Download Word Document
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
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
Coffey Engineering Group Pty Limited
SENIOR DEPUTY PRESIDENT MARSH
SENIOR DEPUTY PRESIDENT DUNCAN
SYDNEY, 3 FEBRUARY 2003
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.
 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  of her decision of 12 November, 2002 [Print PR924588]. On the appeal the appellant took no issue with the summary:
" In this matter an application was lodged under s.170CE(1)(a) of the Workplace Relations Act 1996 (the Act) on 30 September 2002. The termination of employment in respect of which the application was made and which is said to have been harsh, unjust and unreasonable took effect on 16 May 2002. By the time this s.170CE application was lodged it was some 116 days out of time. Section 170CE(7) provides that such an application must be lodged within 21 days after the day on which the termination took effect or within such period as the Commission allows on an application made during or after those 21 days. The applicant has asked the Commission to exercise its powers in s.170CE(7) of the Act to allow the application that has been lodged out of time."
 The provision under which the extension was sought is s.170CE(7) of the Workplace Relations Act 1996 (the Act). It states:
"(7) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days."
 Associated with that is the note appended to s.170CE(7A):
"Note: In Brodie-Hanns v. MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988."
 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.
 We turn to consider the appeal.
 The appeal is brought under s.45 of the Act. Section 170JF is relevant. It provides:
"170JF Appeals to Full Bench
(1) An appeal to a Full Bench under section 45 may be instituted by any person who is entitled under section 170JD to apply for the variation or revocation of an order under this Part.
(2) For the avoidance of doubt, an appeal to a Full Bench under section 45 in relation to an order made by the Commission under Subdivision B of Division 3 may be made only on the grounds that the Commission was in error in deciding to make the order."
 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  159 ALR at pp 28-9). At p 504 of House v. The King Dixon, Evatt and McTiernan JJ. state:
". . . The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable, or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
 With this in mind we have examined the decision under appeal.
 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.
 After that her Honour considered the explanation given by Mr Collins(for the applicant) and found it inadequate in several respects. Her Honour said:
" The reason for the significant delays between the steps identified are unexplained. The delay following Mr Collins receiving advice from the State Commission that the applicant was under a federal award and should pursue relief in this place covers a period of some two months. The only explanation given is that attempts by Mr Collins and his client to confirm instructions were unsuccessful due to "mutual availability". That, in my opinion, provides no adequate explanation for that delay. The applicant gave no evidence as I have earlier noted. Even when confirmation was received by Mr Collins that the applicant wished to proceed with the matter, there was a further delay of some 12 days until the application was lodged. Why Mr Collins and the applicant, knowing at that time that they were already significantly out of time, might have waited that long to send, by post, the application to the Commission is inexplicable. Other than the applicant instructing Mr Collins on 22 May 2002 there is no explanation given about what he was doing in the interim period. I was told nothing about any attempts he made to inquire about the progress of this matter nor any inquiries that may have been made about what Mr Collins was doing to expedite it."
 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]:
". . . it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled [Cf: Gaudron J in Re: Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305].
 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).
 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.
 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:
"1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which "
 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:
"3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time."
 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]:
"With respect to their Honours, that passage does not truly reflect the meaning and operation of s 31(2). The discretion conferred by the sub-section is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v. State Electricity Commission of Victoria (14) in a passage which was endorsed by Gibbs J in Campbell v. United Pacific Transport Pty Ltd:
`It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.'"
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.
 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  hereof].
 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.
 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:
"The test to be applied has been expressed in various ways but all the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the normal way."
 In Kornicki v. Telstra - Network Technology Group (Print P3168) (Kornicki) a Full Bench of the Commission said, apropos merit:
"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."
 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.
 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.
 We refuse to grant leave to appeal.
BY THE COMMISSION
SENIOR DEPUTY PRESIDENT
I. Collins for the appellant.
S. Ingui for the respondent.
Printed by authority of the Commonwealth Government Printer
<Price code C>