Raymond John Carlin v Access Elevators Australia Pty Ltd [2008] NSWIRComm 69 (7 April 2008)

New South Wales Industrial Relations Commission

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Raymond John Carlin v Access Elevators Australia Pty Ltd [2008] NSWIRComm 69 (7 April 2008)

Last Updated: 30 May 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Raymond John Carlin v Access Elevators Australia Pty Ltd [2008] NSWIRComm 69



FILE NUMBER(S):
IRC 2202

HEARING DATE(S):
7 April 2008


EX TEMPORE DATE:
7 April 2008

PARTIES:
APPLICANT:
Raymond John Carlin

RESPONDENT:
Access Elevators Australia Pty Ltd

CORAM:
Backman J


CATCHWORDS: Appeal - application for extension of time in which to appeal under ss 187 and 188 of the Industrial Relations Act 1996 - principles to be applied - delay - relevance of compliance with s 371 of the Industrial Relations Act 1996 to prospects of success - application to extend time granted - costs reserved.

LEGAL REPRESENTATIVES
APPLICANT:
Mr J H Pearce of counsel
Adams & Partners Lawyers
(Mr P Adams)

RESPONDENT:
Mr G Niven of counsel
Leslie Hargrave Lawyers
(Mr J Leslie)

CASES CITED:
Butlers Hire Pty Ltd v Collison [2007] NSWIRComm 288
Faber v Greyhound & Harness Racing Regulatory Authority of New South Wales (2007) 166 IR 122
WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298
Yetzotis v Crown in Right of State of New South Wales (Commissioner of Corrective Services) (2005) 147 IR 50

LEGISLATION CITED:
Industrial Relations Act 1996
Long Service Leave Act 1955


TEXTS CITED:




JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: BACKMAN J

Monday, 7 April 2008

Matter No IRC 2202 of 2007

RAYMOND JOHN CARLIN v ACCESS ELEVATORS AUSTRALIA PTY LTD

Application to extend time to appeal against the decision of Chief Industrial Magistrate Hart given on 20 September 2007 in Matter No. 113552/07

JUDGMENT OF THE COURT
EX TEMPORE
[2008] NSWIRComm 69

1 This is an application to extend time to appeal against a decision of Chief Industrial Magistrate Hart given on 20 September 2007. In that decision his Honour dismissed an application brought by Raymond John Carlin, the applicant at first instance, for long service leave payments in the sum of $20,500 under the Long Service Leave Act 1955.

2 Mr Carlin filed an application for leave to appeal and appeal on 14 December 2007, against his Honour's decision. On the same day Mr Carlin filed an application to extend time to appeal. In the application for leave to appeal and appeal Mr Carlin advances three grounds of appeal:

(i) There was a failure by the Chief Industrial Magistrate to conciliate the dispute prior to proceeding to a hearing as required by s 371 of the Industrial Relations Act 1996.

(ii) The Chief Industrial Magistrate was in error by failing to conciliate the dispute prior to the hearing and accordingly the decision made by the Chief Industrial Magistrate was invalid.

(iii) The Chief Industrial Magistrate was in error by failing to find the appellant (was) a worker employed by the respondent

3 The background to the present application is set out in the affidavit of Peter John Adams filed 14 December 2007. Mr Adams is the solicitor who acted for Mr Carlin in the proceedings below. Mr Adams recalls that on the day of the hearing a suggestion was made by the Chief Industrial Magistrate that the parties leave the Court and attempt to settle the matter. The parties engaged in negotiations for some two hours in an attempt to resolve the matter. Mr Adams does not recall that, prior to the hearing, a conciliation of the dispute was undertaken by the Chief Industrial Magistrate as required under s 371 of the Industrial Relations Act 1996. In the first instance decision some observations are made by the Chief Industrial Magistrate which would appear to confirm Mr Adam's recollection. At [12] of the Decision his Honour said:

Prior to the commencement of the hearing of the matter the legal representatives of the parties were invited to briefly summarise their respective clients' positions and to explore with the assistance of the Court the prospects of settlement of the litigation. After the advocates had taken the opportunity of an adjournment to confer with each other and obtain further instructions from their clients, the Court was informed that the prospects of a compromise settlement had been explored but the parties were well apart and there appeared to be no prospect of compromise ... The parties were in agreement that in the absence of any prospects of amicable settlement the parties required a formal hearing and a determination of the central issue by the Court.

4 A transcript of the proceedings before his Honour records the following exchange between the bench and the legal representatives of the respective parties:

HIS HONOUR: What I propose to do, I'm going to deal with a WorkCover matter which seems to be relatively short. That will give the two of you an opportunity to have some discussion about the matter. One thing I would wish you to do is to make available to Mr Adams any documents that you wish to rely upon in any way which have not been put on formally by way of affidavit material; and it would also be desirable for you to take the opportunity to discuss the relevant issues in the matter to see whether there is any basis for amicable settlement of these proceedings.

I draw the attention of both parties to s 371 of the Industrial Relations Act, which requires this court to use its best endeavours to bring the parties to an amicable settlement rather than plunging straight into a contested hearing. So, when you come back I will seek a report in relation to that and I'll ask both parties at that stage a bit more about the issues that have been identified and whether there is any basis for agreement in relation to any of those issues.

5 After a short period of time the parties returned to Court and advised his Honour that the matter had not been resolved. The transcript records his Honour saying, "I would strongly urge the parties to give consideration to all possible areas of settlement." His Honour also informed the parties that he had a statutory duty, "to make sure that you don't miss an opportunity to resolve this matter," and, that the matter, "should be resolvable." The parties then asked for a further five minutes to explore a "final issue." His Honour responded:

You can have a bit longer if you like, then if you are not able to resolve the matter with him, I will ask each of you to identify for my benefit what are the issues that you see is causing this matter to require determination by the court; and I might then see some way in which I can offer some helpful suggestion to the parties and encourage more discussion between you. I would like to explore the prospect of settlement before embarking on a full-blown hearing of the issues.

6 After a short adjournment the parties informed his Honour that their negotiations had been unsuccessful. The matter then proceeded to hearing.

7 The application for leave to appeal and appeal is brought under ss 187 and 188 of the Act. Under s 189 of the Act, appeals to a Full Bench must be made within 21 days from the date of a decision appealed against or "within such further time as the Full Bench . . . allows". The application for leave to appeal and appeal was filed, as earlier noted, on 14 December 2007, which is in excess of some two months after the expiration of the date in which a notice of appeal may be made.

8 Mr Adams in his affidavit deposes to several matters going to the issue of the late filing of the application. According to Mr Adams, the decision of the Chief Industrial Magistrate was published during the time in which Mr Adams took annual leave. A copy of the decision was duly forwarded to Mr Carlin and advice was given in relation to it, apparently by a solicitor who works with Mr Adams. A letter was forwarded to Mr Carlin confirming Mr Carlin's instructions that he did not wish to appeal the decision of the Chief Industrial Magistrate of 20 September 2007.

9 On 3 December 2007 Mr Adams said he attended a legal seminar where he had an informal conversation with a barrister concerning the decision of 20 September 2007. During that informal conversation Mr Adams says he was informed of a Full Bench decision of this jurisdiction: Faber v Greyhound & Harness Racing Regulatory Authority of New South Wales (2007) 166 IR 122. The following day he says he telephoned Mr Carlin and received new instructions in relation to lodging an appeal. Mr Adams then drafted a letter to the Chief Industrial Magistrate informing his Honour that Mr Carlin had decided to appeal the decision of 20 September 2007 and requesting the learned Chief Industrial Magistrate not to make orders in respect of costs pending the determination of the appeal. In the week commencing 10 December 2007, after receiving counsel's advice, Mr Adams filed the application for leave to appeal and appeal, he says, "at the first possible opportunity of receiving counsel's advice".

10 A number of relevant propositions considered in applications to extend time in which to appeal, have been conveniently set out in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 300:

(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 Australasia 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 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 ER9 33 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.

11 I propose to grant the application to extend time. In my view Mr Carlin has offered an acceptable explanation for the delay in filing the appeal and the application for leave to appeal has reasonable prospects of success. The present matter bears a number of similarities to the decision of Faber v Greyhound. In that decision the Full Bench held that it was not sufficient for the purposes of s 371 of the Act for the Chief Industrial Magistrate to have ensured without further active participation that counsel representing the respective interests of the parties had engaged in a proper process of settlement and been given adequate opportunity to do so. The Full Bench adopted the observations of his Honour, Justice Wright, President, in Yetzotis v Crown in Right of State of New South Wales (Commissioner of Corrective Services) (2005) 147 IR 50 where his Honour said:

[3] As their Honours observe, because it was common ground in the appeal that no steps had been taken to give effect to the requirements of s 371(1), it is unnecessary to determine in these proceedings the precise effect of the obligation in s 371(1) on the court to use "its best endeavours to bring ... the parties ... to a settlement acceptable to those parties". However, in very many cases, the practical obligation on the court dealing with the matter to use its best endeavours will be of great significance and may require the court to expend significant energy and perhaps ingenuity, although not necessarily a great amount of time, in assisting the parties to reach an appropriate settlement.

12 In commenting on the observations made by Wright J in Faber v Greyhound the Full Bench said (at [13]), "It was not sufficient for the Chief Industrial Magistrate . . . to merely engage in a process which was permissive of parties engaging in inter partes settlement discussions".

13 Referring to the circumstances relevant to the present application and guided by the observations of his Honour, the President, in Yetzotis and the Full Bench in Faber v Greyhound it is arguable that the efforts made by the Chief Industrial Magistrate fell somewhat short of the minimum requirements necessary in order to meet the obligations under s 371 of the Act.

14 In Butlers Hire Pty Ltd v Collison [2007] NSWIRComm 288 his Honour Justice Staff in considering an application to extend time in which to appeal commented on the relevance of an alleged failure to comply with the statutory obligations imposed by s 371 of the Act as a ground of appeal, to an appellant's reasonable prospects of succeeding in that appeal in the context of an extension of time application. In that regard his Honour said:

[24] In the exercise of the Court's discretion, it is also necessary to consider the applicant's prospects of succeeding in the appeal: WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (at 300). The Full Bench has found that the failure to comply with clear and unambiguous statutory obligations imposed by s 371 of the Act invalidates any orders made: Yetzotis v Crown in the Right of State of New South Wales (Commissioner of Corrective Services) (2005) 147 IR 50; Bilal (t/as The Hornsby Medical Centre) v Marshall (2006) 158 IR 269; Faber v Greyhound & Harness Racing Regulatory Authority of New South Wales; SSWAHS v Kim and others [2007] NSWIRComm 241; Palimex & Co Pty Ltd v Rodriguez [2007] NSWIRComm 269.

[25] If the contentions of the applicant are made out, then in accordance with the abovementioned decisions, leave to appeal will be granted and the prospects of the appeal succeeding are undeniable.

I adopt his Honour's findings in their entirety in these reasons.

15 The applicant's counsel, Mr Pearce in written submissions, advanced a number of matters in support of the application for an extension of time. These include, the fact that the respondent has not adduced any evidence that it would be prejudiced if the application was granted. It is also contended that the application for leave to appeal and appeal has strong prospects of success. For the reasons earlier set out in the judgment, if the applicant's contentions concerning the line of authority on s 371 of the Act are borne out then it would appear that the applicant has, at the very least, an arguable case. Mr Niven, counsel for the respondent, contends with regard to the issue of the applicant's prospects of success on the appeal, that s 371 was complied with by the learned Chief Industrial Magistrate when one has regard to the transcript of the proceedings, the decision and, his Honours reasons which the respondent says were expressly directed to the requirements of the section. Mr Niven also contended that the respondent would be put to additional costs associated with the appeal if the application to extend time was granted.

16 Based on all these matters and taking into account the submissions of the parties on this application it is significant that Mr Carlin, in my view, has reasonable prospects of success. Although Mr Carlin's solicitor was not aware of the line of authorities in this jurisdiction concerning s 371 of the Act (which has existed for over 2 years), Mr Carlin should not on this basis be deprived of the opportunity of relying on the issue in his application. Balanced against these factors is the long established proposition that the respondent has a "vested right to retain the judgment" unless the application is granted. Taking all these factors together, the balance must fall, in the interests of justice, in favour of granting the application to extend time. I should emphasise here that my findings are based on the very limited material relied upon in the present application.

17 The Court makes the following orders:

1. The application to extend time to appeal is granted until 14 December 2007.

2. Costs are reserved.

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LAST UPDATED:
7 April 2008