Coffey Engineering Pty Ltd v Inspector Patrick Legge [2001] NSWIRComm 99 (5 April 2001)

Last Updated: 12 June 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Coffey Engineering Pty Ltd v Inspector Patrick Legge [2001] NSWIRComm 99

FILE NUMBER(S): IRC138

HEARING DATE(S): 05/04/2001

EX TEMPORE DATE: 05/04/2001

PARTIES:

APPELLANT:

Coffey Engineering Pty Limited

RESPONDENT:

Inspector Patrick Legge

JUDGMENT OF: Walton J Vice-President Glynn J Hungerford J

LEGAL REPRESENTATIVES

APPELLANT:

Mr J Agius of Senior Counsel

Mr Cox of Counsel

SOLICITOR:

Mr M Atkinson

Bateman Battersby Solicitors

RESPONDENT:

Ms P McDonald of Counsel

SOLICITOR:

Mr G Phillips

Carroll & O'Dea Solicitors

CASES CITED: Antakopolous v The State Bank of New South Wales (1999) 91 IR 385

De Simone Consulting Pty Limited v Ison (No 2) (2000) NSWIRComm 269

Knowles v The Anglican Church Property Trust (No 2) (1999) 95 IR 380

LEGISLATION CITED: Industrial Relations Act 1996 s187 s188 197A

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

FULL BENCH

CORAM: WALTON J Vice-President

GLYNN J

HUNGERFORD J

THURSDAY 5 APRIL 2001

MATTER No. IRC138 OF 2001

COFFEY ENGINEERING PTY LIMITED v INSPECTOR PATRICK LEGGE

Application for leave to appeal and appeal against a decision of Justice Wright, President given on 22 December 2000 in Matter No IRC5379 of 2000

JUDGMENT

(EXTEMPORE)

1    In this matter, No IRC138 of 2001, we shall deliver an extempore judgment. The decision by Mr Justice Wright, President, to extend time to appeal in this matter was, in our view, a decision made pursuant to s 197A(5) of the Industrial Relations Act 1996 (the Act). We consider that the appeal from that decision is competent, being an appeal available under s 187 of the Act. It follows that leave to appeal is required to bring the appeal (see s 188 of the Act).

2    We consider that leave to appeal should be refused. In accordance with the convention adopted by Full Benches of this Court in determining whether leave to appeal should be granted, we do not give reasons for our decision.

3    We note, however, that this is an appeal from an interlocutory judgment where the Court exercised at first instance a discretion. We adopt the principles stated by the Full Bench in De Simone Consulting Pty Limited v Ison (No 2) (2000) NSW IR Comm 269 at 5 as follows:

We have carefully considered the terms of his Honour's judgment. We do not consider that the judgment reveals any error of fact or of principle. Its subject matter is not one which should be dealt with by Full Benches except in extraordinary circumstances: see, for example, the Full Bench decisions in Antakopolous v The State Bank of New South Wales (1999) 91 IR 385 at 392 - 393 and Knowles v The Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382 where reference is made to the considerations relevant to the question of leave including whether the appeal raises substantial issues of principle or at law or has wider implications for the jurisprudence of the Commission. No unusual circumstances or issues of principle have been shown by the applicant. All that it seeks in substance is that the Full Bench re-exercise the discretion committed to the judge at first instance.

4 We would only add that an important basis for the appellant's case was the concept of double jeopardy and the strong inclination against the successful defendant facing another trial. However, that is to be seen in the light of the clear statutory intention in s 197A(5) in capping the extension of time to appeal to three months. The period in question here is six days.

5 We order:

1. Leave to appeal is refused.

2. The appeal is dismissed.

6 We reserve the question of costs until the conclusion of the proceedings in Matter No IRC5379 of 2000 but note that we are presently minded to make no order as to costs in this matter.

LAST UPDATED: 15/05/2001