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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision [PR961389] and order [PR962012]
issued by Commissioner Roberts on 30 August 2005
s.170CE application for relief in respect of termination of employment
Rail Infrastructure Corporation
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT HAMBERGER
MELBOURNE, 22 DECEMBER 2005
Appeal against decision and order - termination of employment - extension of time.
 This is an appeal against a decision and order of Commissioner Roberts, in PR961389 and PR962012 respectively, in which the Commissioner refused an application to accept an application by Mr A Poulton under s.170CE of the Workplace Relations Act 1996 (the Act) lodged out of time. The application related to the termination of Mr Poulton’s employment by Rail Infrastructure Corporation (RIC).
 The salient facts are as follows:
“ The Applicant filed an ‘application for relief in relation to unfair dismissal’ in the New South Wales Industrial Relations Commission on 8 September 2003. He lodged an application in this Commission on 6 May 2004. Correspondence accompanying the latter application suggests the earlier application in the NSW Commission has not been discontinued. The application to this Commission is out of time. At the conciliation conference today, the Applicant raised a jurisdictional objection to his own application proceeding in this Commission on the basis that his employment was not covered by a Federal Agreement and that it should proceed in the NSW Commission.
 For the Applicant to raise a jurisdictional objection to his own application is a nonsense. At the conclusion of the conciliation conference I said that I would list the matter to determine the various jurisdictional questions raised. Upon reflection, the more appropriate course appears to be to strike out the application. Accordingly, I direct that the Applicant has 14 days to submit in writing why his application should not be struck out.” 4
“ The Applicant’s written submission of 20 July 2004 argues that the Application is within the jurisdiction of the Commission, asserting that the current Enterprise Agreement is binding upon the Applicant. No submission was made on whether in the circumstances of this case s.170HB of the Workplace Relations Act 1996 precludes the Application. Nor was the operation of s.170CE(7) referred to.
 Accordingly, I list the Application for 2 pm Tuesday 10 August 2004, to hear submissions and evidence on both these matters which were raised in my Statement of 6 July 2004.” 5
The Decision of Commissioner Roberts
 In PR961389, Commissioner Roberts set out the background, 7 recorded in a condensed form above. He then set out the relevant legislative framework.8 The Commissioner then applied the principles arising from Brodie-Hanns v MTV Publishing Limited (Brodie-Hanns)9 to the circumstances of Mr Poulton’s case.
 The Commissioner found that:
 In respect of the explanation of the delay, the Commissioner decided:
“The Applicant appears to have been in receipt of legal advice and assistance since he first brought an application before the NSW IRC. It was allegedly Mr Poulton’s view, or that of those acting on his behalf at relevant times, that he had a right to bring his action in either the Federal or State jurisdictions. The explanation for the delay in bringing the current application essentially was that it was not until the decision of Murphy C in the NSW IRC on 31 May 2005 that Mr Poulton finally had to accept that there was no remedy for him in the State jurisdiction. Accordingly, it was argued that he should now be granted an extension of time to pursue his action in the correct jurisdiction and have his ‘day in court’.
In my view, it should have been clear to Mr Poulton at an early stage of his initial application to the NSW IRC that he was very likely to have filed in the wrong jurisdiction. In his written submissions in the proceedings before Cartwright SDP, Mr Poulton apparently argued that he was covered by the Federal jurisdiction. He then discontinued his application to this Commission after Cartwright SDP set the application down for a jurisdictional hearing. He then revived his NSW IRC application which was subsequently struck out. He now seeks to return to this jurisdiction to press his application for relief.” 14
 Commissioner Roberts ultimately found:
“The Applicant was sufficiently aware of his general rights to challenge the termination of his employment. This is evidenced by his prompt action in obtaining legal representation and in lodging an application to the NSW IRC within or about the prescribed 21 day period. The ‘Employer’s Response’ to that application made it clear that his employment had been subject to a Federal certified agreement. The NSW Act and relevant NSW IRC Forms also make it quite clear that persons in his situation do not have the right to bring an action for relief concerning termination of employment to the NSW IRC. How any legal advisor could have advised him otherwise is beyond me.
He then filed an application in this Commission on 5 May 2004 which led to a written submission on or about 20 July 2004 arguing that his employment had been covered by the Rail Infrastructure Corporation Enterprise Bargaining Agreement 2002. He then withdrew that application and reverted, for whatever reason, to his earlier application to the NSW IRC.
Mr Easton’s submissions as to why I should grant an extension of time of some 21 months to allow Mr Poulton to make his new application for relief to this Commission do not combine to form a reasonable reason as to the delay and therefore it would not be equitable for me to extend the time for lodgement in such circumstances. Mr Poulton’s current situation is largely of his own making. There was nothing to stop him continuing his first application to this Commission in May 2004. Any problems arising from s.170HB of the Act could have been cured by discontinuing the still extant NSW IRC proceedings. By discontinuing the first AIRC application and reverting to his somewhat quixotic quest in the NSW IRC, he largely became the author of his own misfortune.
All in all, for the reasons set out above, and applying the principles set out in Brodie-Hanns, I am not positively persuaded that I should grant the application for an extension of time under subsection 170CE(7) of the Act and have therefore decided to refuse it. It follows that the substantive application for relief must also be dismissed.” 15
 The appellant raised a number of grounds of appeal:
Errors of Law
Ground 1: The appellant contended that Commissioner Roberts erred, in law, in finding that there was nothing to stop Mr Poulton continuing his first application to the AIRC in May 2004 and that any problems arising from s.170HB of the Act could have been cured by discontinuing his application to the NSW IRC. It was submitted that given the introductory words to s.170HB of the Act, Mr Poulton would have been required to discontinue his NSW application and discontinue his first application in the AIRC and file a new application.
Errors of Fact
Ground 2: Commissioner Roberts erred in finding that it should have been apparent to Mr Poulton, at an early stage, that his application in the NSW jurisdiction was very likely to have been filed in the wrong jurisdiction, having regard to a finding of Commissioner Murphy, in dismissing the application, that it was arguable that he was able to pursue his case in that jurisdiction:
“At best, the reliance by Mr Easton upon the more restricted term ‘Federal award’ within S.83(1)(A) creates an ambiguity, not sufficiently clarified by the relevant definitions in legislation to distinguish from other industrial instruments such as the Federal certified agreement covering Mr Poulton. The Commission notes that some of the language cited above from the Full Bench in the Moore case seems also to be imprecise, in that no distinction seemed necessary in making the observations as to the lack of ‘any express or implied intention to include.....persons who were covered by Federal awards.’ When considered in tandem with the strict intention enunciated by the Minister in respect to the S83(1)(A) amendment, the only conclusion I am able to arrive at is that Mr Easton's arguable proposition should not be given the life espoused by him.” 16 [emphasis added]
Ground 3: Commissioner Roberts erred in finding that it was beyond him as to how any legal advisor could have advised Mr Poulton to file an application in the NSW IRC, in light of the finding by Commissioner Murphy that it was arguable that he could.
Ground 4: Commissioner Roberts erred in finding that Mr Poulton’s employment was covered by a Federal award.
 The appellant sought to amend the appeal grounds to add additional grounds.
5A and B: application to admit additional evidence to support an argument not advanced at first instance - that the delay arose from representational error;
5C: Commissioner Roberts erred in relying on his finding that Mr Poulton was responsible for the process of applications in light of his findings that Mr Poulton was in receipt of legal advice from the outset and had actively contested his termination.
5D: Commissioner Roberts erred in relying on his finding that the second application was arguably an abuse of process.
 The amendment of the appeal grounds was opposed by RIC in respect of the representational error issue but acceded to in respect of the other additional grounds. In the course of the hearing on 29 November 2005, we granted leave to amend the application in all respects. We did so on the basis that the fact of representational error featured in the reasoning of Commissioner Roberts, 17 although an explanation for the delay involving representational error was not argued by Mr Poulton’s representative.
 In the event, it has not been necessary to consider the additional grounds relating to representational error for the purpose of considering leave to appeal, determining the appeal or determining whether Mr Poulton’s application ought be accepted late on our rehearing.
Approach to the Appeal
 The nature of an appeal under s.45 of the Act was considered by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. 18 In a joint judgement, Gleeson CJ, Gaudron and Hayne JJ held that:
“Because a Full Bench of the Commission has power under s.45(6) of the Act to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under sub-s(7) are exercisable only if there is error on the part of the primary decision-maker. And that is so regardless of the different decisions that may be the subject of an appeal under s.45”. 19
 Their Honours subsequently continued:
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process [See Norbis v Norbis (1986)161 CLR 513 at 518-9]. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial decision, in House v King in these terms:
‘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. [(1936] 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ].’” 20
Application to admit new evidence
 Mr Poulton sought to introduce new evidence, an affidavit by him in the form of a chronology of actions in respect of the applications made by him or on his behalf. In the particular circumstances of the case, we decided that it was appropriate to take into account that additional material in order to ensure that there is not a miscarriage of justice in these proceedings. We have not considered the new evidence in considering leave to appeal and in determining the appeal. We have had regard to the new evidence, as relevant, in the rehearing, although it has not been necessary to consider the evidence as it relates to the additional ground of representational error.
Leave to appeal
 In our view, the appellant has established an arguable case that Commissioner Roberts erred:
 In our view, when taken together as representing the Commissioner’s line of reasoning, these findings constitute a material consideration in the Commissioner’s reasoning and do materially affect his ultimate decision to dismiss Mr Poulton’s application. Accordingly, we grant leave to appeal.
Section 170HB matters
 In his decision Commissioner Roberts found that “There was nothing to stop him continuing his first application to this Commission in May 2004” 24 and “Any problems arising from s.170HB of the Act could have been cured by discontinuing the still extant NSW IRC proceeding.”25
Determination of the appeal
Section 170HB of the Act provides that:
“(1) An application must not be made under section 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, if proceedings (the prior proceedings) for a remedy in respect of that termination have been commenced by or on behalf of that employee:
(a) under another provision of this Act; or
(b) under another law of the Commonwealth; or
(c) under a law of a State or Territory;
alleging that the termination was:
(d) harsh, unjust or unreasonable (however described); or
for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.
(2) Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings:
(a) have been discontinued by the party who began the proceedings; or
(b) have failed for want of jurisdiction.
(3) For the avoidance of doubt, a proceeding under this Act or any other law of the Commonwealth or under a law of a State or Territory seeking compensation, or the imposition of a penalty, because an employer has failed, in relation to a termination of employment, to meet an obligation:
(a) to give adequate notice of the termination; or
(b) to provide a severance payment as a result of the termination; or
(c) to provide any other entitlement payable as a result of the termination;
is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination.
(4) If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application unless the application:
(a) is discontinued by the applicant; or
(b) fails for want of jurisdiction.”
 In our view, Commissioner Roberts misconstrued the effect of s.170HB of the Act in finding that, in the face of the prior application to the NSW IRC, there was nothing to stop Mr Poulton continuing his first application in the AIRC and that any problems arising from s.170HB of the Act could have been cured by discontinuing the proceeding in the NSW IRC. This was conceded by RIC in the appeal, 26 but it argued that this finding was not essential to the Commissioner’s final decision.
 The effect of s.170HB of the Act is to render invalid any application under s.170CE of the Act if the circumstances described in s.170HB(1) pertain, as they did in this case. Section 170HB(2) makes it clear that a s.170CE application may be made if the other proceedings have been discontinued or dismissed for want of jurisdiction. It does not provide a means of making valid an application already made in the circumstances of s.170HB(1), through discontinuing the other proceedings.
 The reasoning of Commissioner Roberts, based on the misconception that Mr Poulton had an option of discontinuing his application in the NSW IRC and progressing his first application in the AIRC, was a material issue in his reasoning process which led the Commissioner to conclude that there was no “reasonable reason as to the delay” 27 and ultimately to refuse Mr Poulton’s application for an extension of time under s.170CE(7) of the Act. In this respect we do not accept that the error was immaterial to the Commissioner’s final decision. Accordingly, we are satisfied that the appeal should succeed and the decision and order of Commissioner Roberts should be quashed.
Paragraph 24 matters
 In paragraph 26 of his decision, Commissioner Roberts found that:
“The Applicant was sufficiently aware of his general rights to challenge the termination of his employment. This is evidenced by his prompt action in obtaining legal representation and in lodging an application to the NSW IRC within or about the prescribed 21 day period. The ‘Employer’s Response’ to that application made it clear that his employment had been subject to a Federal certified agreement. The NSW Act and relevant NSW IRC Forms also make it quite clear that persons in his situation do not have the right to bring an action for relief concerning termination of employment to the NSW IRC. How any legal advisor could have advised him otherwise is beyond me.”
 We are satisfied that the Commissioner erred in finding that Mr Poulton had legal representation prior to lodging his application in the NSW IRC. There was no evidence before him to support such a finding.
 Further, the Commissioner’s finding that it should have been clear to Mr Poulton that he did “not have the right to bring an action for relief concerning termination of employment to the NSW IRC” having regard to the NSW Act and the relevant NSW IRC forms was not available to him on the evidence.
 The NSW IRC form for an application for relief in respect of unfair termination (Form 7A 28) contains a “Special Note For Applicants” advising that not all employees can make application to the NSW IRC and identifies as ineligible to make an application “an employee under a Federal Award entitled to make an application to the Australian Industrial Relations Commission with respect to the dismissal on the ground that it was harsh, unjust or unreasonable”. We do not accept that his note would make it quite clear to a person such as Mr Poulton, acting without legal advice, that he was excluded from bringing an application to the NSW IRC. He was employed subject to a State award and a Federal agreement. The Special Note, in itself, does not provide the clarity suggested by Commissioner Roberts.
 Further, we think the Commissioner erred in finding that the NSW Act makes it clear that a person in Mr Poulton’s situation does not have the right to bring an action for relief concerning termination of employment to the NSW IRC. In our view, such a conclusion was not reasonably open to the Commissioner having regard to the terms of the NSW Act 29 and the 31 May 2005 decision of Commissioner Murphy30 of the NSW IRC. The issue of access to the NSW IRC in the circumstances of Mr Poulton’s employment was not at all clear, as a reading of Commissioner Murphy’s decision readily discloses. The Commissioner was not satisfied that Mr Poulton was covered by a Federal award31 but he ultimately rejected the subsequent argument advanced by Mr Poulton’s representative that s.83(1A) of the NSW Act32 had the effect of broadly providing access to the NSW unfair dismissal system to NSW public sector employees covered by Federal awards. Whilst that argument was ultimately rejected by the Commissioner, he found it to be “an arguable proposition”.33 Commissioner Murphy ultimately determined the effect of s.83(1A) of the NSW Act by reference to a clear intent evident in the Minister’s second reading speech, in light of an arguable ambiguity in the terms of the legislation. For Mr Poulton, a plumber by training, with no evident expertise in industrial relations or legal training, uncertainty as to the appropriate jurisdiction in which to file an application for relief in respect of his employment was understandable, if not inevitable.
 These errors, as highlighted above, formed the cumulative steps in the Commissioner’s reasoning that led him to his ultimate conclusion.
Determination of the appeal
 We find that the Commissioner erred in respect of both the s.170HB and Paragraph 24 matters. We are satisfied that both errors materially affect his ultimate decision to dismiss Mr Poulton’s application. We uphold the appeal on that basis. In that circumstance, it is not necessary to determine the other grounds of appeal.
Disposition of the appeal
 Given our finding of error, we uphold the appeal and quash the decision and order of Commissioner Roberts in PR961389 and PR962012, respectively.
 We considered remitting the matter to Commissioner Roberts, but to avoid further delay in the resolution of the extension of time issue, and the ancillary arguments concerning s.170HBA of the Act and estoppel, we have decided to rehear and determine the matter ourselves.
 It is necessary to determine:
 Section 170CE(7) of the Act provides:
“(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.”
 The following Note appears under subsection 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.”
 Marshall J in Brodie-Hanns set out those principles as follows:
“(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 for the delay which makes it equitable to extend.
(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(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.
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.” 34
Explanation of the delay
 From the evidence, we find:
“2.4 Relationship to Awards and Agreements
2.4.1 For the duration of this Agreement, or until replaced by another Award, this Agreement will be read and interpreted wholly in conjunction with the: ...”
[Thereafter a number of awards are identified, including the Government Railways (Building Trades Maintenance Staff) Award (NSW), an award of the NSW IRC.]
“Provided that where there is any inconsistency, this Agreement will prevail to the extent of the inconsistency.”
Explanation of the delay
 There is no doubt that the delay in lodging the second application was of an extraordinarily lengthy duration. The set of circumstances recorded above provide the context in which we must decide whether there was an acceptable reason for the late lodgement by Mr Poulton of his current application.
 We think that the circumstances set out above do disclose an acceptable explanation for the delay by Mr Poulton in filing his current application.
 That explanation has its genesis in the understandable uncertainty as to the jurisdiction in which Mr Poulton was entitled to bring an application, in circumstances where he unsuccessfully sought clarification from both the RIC and his union before lodging his application and, in the absence of advice, he lodged his application in the NSW IRC believing he was entitled to do so. Given the uncertainty as to his legal right to bring the NSW claim, Mr Poulton’s action in doing so was not unreasonable.
 We find that uncertainty as to the jurisdiction in which Mr Poulton was entitled to bring an application was understandable because the issue of identification of the relevant award required an assessment of the interaction of a Federal certified agreement with awards specified within the agreement and the effect, if any, of a Memorandum of Agreement associated with the agreement. The issue of access to the NSW IRC in the circumstances of Mr Poulton’s employment was difficult, as is evident from the decision of Commissioner Murphy. Commissioner Murphy was not satisfied that Mr Poulton was covered by a Federal award 51 and found that the subsequent argument concerning s.83(1A) of the NSW Act52 was not made out, but was “an arguable proposition”.53 For a layperson, Mr Poulton, without any effective advice at that time, uncertainty as to the appropriate jurisdiction in which to file an application for relief in respect of his employment was understandable. In our view, the “Special Note For Applicants” in the NSW IRC form and the identification of the Agreement by the RIC in its appearance form would do nothing to remove that uncertainty.
 Once the NSW proceedings commenced, the focus of the conciliation processes in that jurisdiction, according to the evidence of Mr Poulton, was on the disputed position as to the validity of Mr Poulton’s application in the NSW jurisdiction, involving an issue as to the application of the 2002 EBA to Mr Poulton’s employment. That issue was explored in two conciliation conferences in October 2003. At the next conciliation conference, in April 2004, the parties April 2004 agreement was concluded. In it, the parties agreed to a process to obtain a “ruling” by the AIRC to determine the application of the 2002 EBA and thereby to determine where Mr Poulton’s application should be dealt with. The parties agreed that the “dispute” would be heard in either the AIRC or NSW IRC, dependant on the ruling of the AIRC. An application was then immediately made to the AIRC by Mr Poulton, on 5 May 2004, giving effect to the agreement of the parties to obtain a ruling on the jurisdictional matters. We think the agreement of Mr Poulton and the RIC to obtain a “ruling” in respect of the jurisdictional issue and to progress Mr Poulton’s claim in the jurisdiction determined by the “ruling” is a critical element explaining the delay in lodgement of the current application in the AIRC.
 When the matter came before Senior Deputy President Cartwright, he raised in his 22 July 2004 statement, correctly, the application of s.170HB of the Act - in effect whether the application to the AIRC was precluded by the making of the prior application to the AIRC, in circumstances where his Honour had earlier expressed a view, again correctly, that Mr Poulton could not continue his AIRC application because he had not discontinued his NSW application and had the options of discontinuing the NSW and AIRC applications and making a new application in the AIRC or discontinuing the AIRC matter and pursuing his claim in the NSW IRC. 54 In circumstances where the parties 2004 agreement could not be given effect, since a “ruling” could not be obtained, Mr Poulton chose to discontinue his application in the AIRC and proceed in the NSW IRC, in the first instance through a determination of the jurisdictional issue. In circumstances where the ability of Mr Poulton to bring his claim in the NSW IRC was the subject of some uncertainty and the case advanced on his behalf was found to be arguable and the agreed process of obtaining a “ruling” in the AIRC was no longer available, such a course was not unreasonable.
 On 31 May 2005, Commissioner Murphy found that Mr Poulton was unable to bring an application to the NSW IRC. Within a week, Mr Poulton lodged a new application, the current application, in the AIRC 21 months after the termination of his employment.
 We think the circumstances do disclose an acceptable explanation for the delay. Our conclusions have been reached irrespective of whether or not Mr Poulton was acting on legal advice from February 2004. It is the combination of the particular set of circumstances evident in respect of Mr Poulton’s application which constitutes an acceptable explanation for the delay in the present matter. These circumstances are:
 Whilst all matters are determined on their own facts, and our finding as to a acceptable explanation is made on the basis of the particular circumstances recorded above, we note that there are other decisions of the Commission which have accepted as an acceptable explanation for delay, late lodgement caused by a reasonably based application in another jurisdiction, where prompt action had been taken to initiate a s.170CE application, once the absence of jurisdiction in the State tribunal has been established. 55
Action taken by the applicant
 We are satisfied that Mr Poulton has at all times vigorously contested his termination. The findings above demonstrate that he has taken active steps to pursue his complaint in respect of the termination of his employment.
Prejudice to the respondent
 We do not accept that a requirement to defend the claim per se constitutes a relevant prejudice. Any prejudice must arise from late lodgement. However, we accept that some prejudice may arise to the RIC due to the effect of the passage of time on the recollection or availability of witnesses, mitigated to some extent by access to documentary rather than oral evidence. Such a prejudice is a relevant consideration in deciding whether or not the application should be accepted out of time. We accept that the absence of prejudice to the Respondent does not in itself provide a basis to grant an extension of time.
Merits of the substantive application
 The question of merit is neutral in the current application.
Fairness between the applicant and other persons in a like position
 No particular issue of fairness as between Mr Poulton and other persons in a like position arises in this case.
 We have decided on balance to accept Mr Poulton’s application. We think that there is an acceptable explanation for the delay in lodgement and in circumstances where Mr Poulton has actively pursued the complaint about his termination; fairness would be best served by the acceptance of his application, notwithstanding some prejudice arising to the employer.
 The application under consideration is Mr Poulton’s second application. In this circumstance the application is subject to the provisions of s.170HBA of the Act. Section 170HBA provides:
“An application must not be made under section 170CE in relation to a termination of employment of an employee where a previous application under section 170CE was made in respect of the same termination unless the second application corrects an error in the previous application, or the Commission considers that it would be fair to accept the second application.”
 The provision identifies circumstances in which a second application under s.170CE can be made. In our view, Mr Poulton’s second application should be permitted on the second basis identified - “the Commission considers that it would be fair to accept the second application”. Given the particular circumstances identified above, in relation to the extension of time application, we consider that it would be fair to accept the second application.
 RIC contended that Mr Poulton’s second application was an abuse of process, which should be estopped by the Commission. It submitted that it would be manifestly unfair to allow the applicant to again raise matters, which could and should have been resolved at the time of the first application. It relied on the proposition that a person may be prevented by the doctrine of abuse from re-litigating questions that have already been decided, or could have been already decided. 56
 We are not satisfied that the circumstances of this case disclose an abuse of process by Mr Poulton. The circumstances disclose neither that Mr Poulton’s application is motivated by ulterior motives, nor that he is seeking to re-litigate matters already determined. Mr Poulton simply seeks a resolution or determination of his application for relief in respect of the alleged harsh, unjust or unreasonable termination of his employment, in circumstances where the jurisdictional question as to where his application may be brought has been the only matter litigated to date. As is evident from our decision above, the circumstances involve concerted attempts by Mr Poulton to press his claim of unfair termination where multiple proceedings have arisen from an understandable uncertainty in Mr Poulton’s mind as to the correct forum in which to agitate his complaint. Further, as found above, having initially filed an application in the NSW IRC, Mr Poulton’s initial application to the AIRC was invalid and, having first commenced the NSW application, he had no capacity to have the jurisdictional issues in the current hearing heard and determined in relation to the first application.
 An order accepting the application late, under s.170CE(7) of the Act, and as a second application under s.170HBA will be issued in PR966973. The file will be referred to Registry for allocation to a Member for conciliation.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
T Saunders, of counsel, for the appellant.
R Crow, of counsel, and later A Britt , of counsel, for the respondent.
1 AG818106 PR960489.
2 Exhibit R2.
3 See attachment BS 20 to Exhibit Nand 2 in Matter U2005/3918.
4 PR961389 at para 8.
5 ibid., at para 9.
6 Anthony Poulton v Rail Infrastructure Corporation  NSWIRComm 1081 (Murphy C, 31 May 2005).
7 PR961389 at paras 3-13.
8 ibid., at paras 14-17.
9 (1995) 67 IR 298 at p. 299.
10 PR961389 at para 20.
11 ibid., at para 21.
12 ibid., at para 22.
13 ibid., at para 23.
14 ibid., at paras 18-19.
15 ibid., at paras 24-27.
16 NSWIRComm 1081, at para 88.
17 PR961389 at paras 18 and 24.
18 (2000) 203 CLR 194.
19 ibid., at para 17.
20 ibid., at para 21.
21 PR961389 at para 26.
22 ibid., at para 26.
23 ibid., at para 24.
24 ibid., at para 26.
25 ibid., at para 26.
26 Exhibit R1 at para 21.
27 PR961389 at para 26.
28 Appeal Book, Tab 4, p. 43.
29 Industrial Relations Act 1996 (NSW).
30 NSWIRComm 1081.
31 ibid., at para 71.
32 Application to Federal award employees.
33 NSWIRComm 1081, at para 88.
34 (1995) 67 IR 298 at p. 299.
35 Exhibit A2 at para 9.
36 Affidavit of Brad Scutella, marked page 43 in the Appeal Book.
37 ibid., marked page 55 in the Appeal Book.
38 ibid., marked page 58 in the Appeal Book.
39 Exhibit A2 at para 11.
40 ibid., at para 13.
41 ibid., at paras 14-17.
42 ibid., at para 19.
43 ibid., at paras 18, 20 and 21.
44 ibid., at paras 21-23.
45 Exhibit R2.
46 Exhibit A2 at para 25.
47 ibid., at para 26.
48 ibid., at para 27.
49 ibid., at para 28.
50 NSWIRComm 1081.
51 ibid., at para 71.
52 Application to Federal award employees.
53 NSWIRComm 1081, at para 88.
54 Exhibit A2 at para 27.
55 Nikulin v The University of Newcastle, Print Q0800, Vawser v Marmion Village Pharmacy, Print R0603, and Scott v Rockmans Stores Pty Limited, Print Q8915. See also, Mathieson v Downer Connect P/L t/as Lucas Downer Joint Venture, PR930942, at para 12.
56 R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 76 ALR 256.
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