Adidem Pty Ltd v Cowdery
[2014] VSC 533
•28 October 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 5423
| ADIDEM PTY LTD TRADING AS THE BODY SHOP (ACN 006 122 872) | Appellant |
| v | |
| NIGEL COWDERY | Respondent |
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JUDGE: | McDONALD J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 October 2014 |
DATE OF JUDGMENT: | 28 October 2014 |
CASE MAY BE CITED AS: | Adidem Pty Ltd v Cowdery |
MEDIUM NEUTRAL CITATION: | [2014] VSC 533 |
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Appeal — Leave to appeal from order of Magistrates’ Court — Appeal from order of Associate Judge granting leave to appeal — Failure to appeal within prescribed 30 day period not due to exceptional circumstances — Magistrates’ Court Act 1989 s 109(4), (5) —Supreme Court (General Civil Procedure) Rules 2005, r 77.06
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A Galbraith | Nevett Ford Melbourne Lawyers |
| For the Respondent | Ms G Jardine | McDonald Murholme Barristers and Solicitors |
HIS HONOUR:
Introduction
Following the termination of the respondent’s employment by the appellant, the respondent (‘Mr Cowdery’) commenced proceedings in the Magistrates’ Court of Victoria alleging breach of contract and a failure by the appellant (‘the Body Shop’) to make redundancy payments in accordance with s 119 of the Fair Work Act 2009 (Cth) (‘Fair Work Act’). Mr Cowdery also sought the imposition of a penalty against the Body Shop pursuant to s 545 of the Fair Work Act in respect of the alleged non-compliance with s 119. Mr Cowdery succeeded in his claim for redundancy payments under s 119. The Magistrates’ Court rejected his claims for breach of contract and for the imposition of a penalty for non-compliance with s 119.
Mr Cowdery filed a notice of appeal on 18 October 2013 challenging the dismissal of the contract claim and the non-imposition of a penalty. The Body Shop challenged the validity of the notice of appeal on the ground that it had been filed outside the 30 day period prescribed by s 109(2)(a) of the Magistrates’ Court Act 1989 (‘Magistrates’ Court Act’).
In light of the issues which fall for determination in the present proceedings, it is important to set out in some detail the history of the proceedings in the Magistrates’ Court. Mr Cowdery commenced his claim in the Magistrates’ Court by complaint and statement of claim filed 1 May 2012. The claim was heard before Ginnane M on 18 and 19 February 2013. On 2 May 2013, his Honour handed down a document entitled ‘Reasons for Decision’. The reasons set out the basis upon which his Honour rejected the claim for breach of contract, and upheld the claim for redundancy payments under s 119 of the Fair Work Act.
Paragraph 50 of the decision includes the following:
As the plaintiff advanced no submissions in support of the imposition of a penalty, I therefore order than (sic) otherwise than for the relief granted the claim is dismissed.
Following the 2 May 2013 decision, Mr Cowdery’s solicitors made representations to the solicitors for the Body Shop that he intended to appeal the decision.[1] On 9 May 2013, the solicitor for Mr Cowdery rang the solicitor for the Body Shop and advised that Mr Cowdery would appeal the decision of 2 May 2013.[2] On 13 May 2013, the solicitors for the Body Shop wrote to the Magistrates’ Court requesting a hearing on costs, copying the solicitors for Mr Cowdery into the letter.[3] On 15 May 2013, the Body Shop’s solicitors wrote to Mr Cowdery’s solicitors enclosing the costs application and an affidavit in support. On the same day, Mr Cowdery’s solicitors wrote to the Body Shop’s solicitors, copying the Magistrates’ Court into the letter, and stating, inter alia:
We have been instructed to appeal the decision to the Supreme Court of Victoria. The notice of appeal is being settled by counsel. We respectfully request that the hearing of any costs claim be delayed until the hearing and determination of the Appeal.[4]
[1]Affidavit of Emma Pollet-Sutton, affirmed 8 November 2013 [17].
[2]Ibid [18].
[3]Ibid [20].
[4]Ibid [22].
On 16 May 2013, the Magistrates’ Court wrote to the parties advising that it did not agree to the request and advising that Ginnane M had directed that the proceeding be listed for mention ‘in regard to costs’ in the week commencing 20 May 2013 ‘in order for all matters to be concluded before his Honour, Magistrate Ginnane, with any period available for appeal.’[5]
[5]Ibid [25].
The proceeding was relisted for hearing on 23 May 2013 to allow the parties to make submission on the issue of costs. On that same day, the solicitor for Mr Cowdery sought the imposition of a penalty in respect of Ginnane M’s finding on 2 May 2013 in respect of the Body Shop’s non-compliance with s 119 of the Fair Work Act. A subsequent decision published by Ginnane M on 17 July 2013 records the exchange which took place on 23 May 2013:
3.Mr Jewell indicated that the plaintiff sought the imposition of a penalty and Mr Galbraith wished to pursue an application for costs.
4.I stated to Mr Jewell that I had determined in my reasons for decision that no submissions had been advanced by way of penalty and that otherwise than by reference to the limited relief that I had ordered in favour of the plaintiff I had dismissed the proceedings. Mr Jewell submitted that that plaintiff had intended to await the reasons for decision of the court before making any submission on penalty. I told Mr Jewell that I had a strong recollection that counsel for the plaintiff had, if not in form, at least in substance, told the court that the matter of penalty would not be pursued. Mr Jewell questioned the accuracy of the court’s recollection. Mr Galbraith submitted that the court had delivered its reasons and therefore the matter was concluded pending any appeal and that in effect I should not revisit the matter.
5.The Magistrates’ Court does not routinely transcribe proceedings. It is a great pity that it does not. A sound recording is readily available. It is time consuming to listen to and thus counterproductive to the efficiency of the court. I have discovered on more than one occasion that the recording may be incomplete or in parts inaudible.
6.In light of the submissions made to me, I told the parties that it was appropriate for me to consider the matter and to obtain the recording of the hearing. I would then determine the proper course to adopt.
7.I have obtained the recording and I have been unable to locate a reference to the issue of penalty by counsel for the plaintiff as I believed had been made in the course of the substantive hearing. My own notes of the hearing fail to reveal any discernible submission in relation to penalty and not of the type I believed had been made. It was against a belief that counsel had made the implied submission regarding penalty referred to above, that I included the passage referred to in my reasons. Had it been otherwise, then I would have naturally expected any issue of penalty to have been dealt with after the publication of my decision and reasons and in accordance with the submission made by Mr Jewell. It could hardly be otherwise.
8.I am persuaded that it would be counterproductive to the interests of the parties and the interests of the proper administration and dispatch of court business for me to not permit the matter of penalty to be argued. It also strikes me that in the event either party desire to take the matter of my decision further that all matters arising should be determined compendiously.[6]
[6]Ibid Exhibit EPS-16.
Subsequent to his Honour’s decision of 17 July 2013, a further hearing took place on 1 August 2013 which dealt with the issue of costs, interest, and whether any penalty should be imposed in respect of the Body Shop’s non-compliance with s 119 of the Fair Work Act. A decision in relation to these matters was published by Ginnane M on 20 September 2013.[7] It is this decision together with the decision of 2 May 2013 which was the subject of the notice of appeal dated 18 October 2013.
[7]NC-3 to the affidavit of Nigel Cowdery, sworn 25 October 2013.
The challenge to the validity of the notice of appeal of 18 October 2013 was heard by Lansdowne AsJ. Her Honour upheld the Body Shop’s contention that the appeal against the dismissal of the contract claims was out of time. Consequently, by virtue of s 109(4) of the Magistrates’ Court Act the appeal was deemed to be an application for leave to appeal. Section 109(5) of the Magistrates’ Court Act provides as follows:
(5)the Supreme Court may grant leave under sub-s (4) and the appellant may proceed with the appeal if the Supreme Court —
(a)is of the opinion that the failure to institute the appeal within the period referred to in sub-s (2)(a) was due to exceptional circumstances; and
(b)is satisfied that the case of any other party to the appeal would not be materially be prejudiced because of the delay.
Her Honour granted Mr Cowdery leave to appeal in respect of the Magistrates’ Court’s dismissal of his claim for breach of contract. It is that order granting leave which is the subject of the appeal before me.
The nature of an appeal from an Associate Judge pursuant to r 77.06
Counsel for both parties conducted the appeal before me on the basis that an appeal brought pursuant to r 77.06 against an order of an associate judge is an appeal by way of re-hearing and the onus is on the appellant to establish that the order which is the subject of the appeal is the result of some legal, factual or discretionary error. This approach is supported by a considerable body of authority.[8]
Was Mr Cowdery’s failure to file a notice of appeal within 30 days of 2 May 2013 due to exceptional circumstances?
[8]Oswal v Carson [2013] VSC 355 [11]; Applebee v Monash City Council [2013] VSC 481 [9]-[20]; Re Nom de Plume Nominees Pty Ltd v Wallace-Smith [2014] VSC 75 [2]-[8].
Her Honour concluded that the failure of Mr Cowdery to commence an appeal within 30 days of 2 May 2013 was due to exceptional circumstances. Her reasons for this conclusion are set out at [55] and [56] of her judgment:
Despite the absence of evidence as to what actually occurred in relation to the mooted appeal, I have given consideration to whether the known steps taken by the Magistrate are sufficient alone to constitute exceptional circumstances that caused the appeal to be delayed. The relevant matters are that the Magistrate was persuaded within the appeal period to recall one order he had made on 2 May 2013, but both his decision as to whether or not he would do so and the actual determination of the penalty issue did not occur until well after the appeal period running from 2 May 2013 had expired. Is this sequence of events alone properly described as exceptional so as to justify leave out of time?
In my view, yes. In this unusual set of facts, I consider exceptional circumstances shown notwithstanding the absence of direct evidence from the appellant connecting those facts to his delay. It is very rare that a court will recall an order once it is made and revisit the subject matter of the order. That step is fairly described as ‘exceptional’. There is no direct evidence as to whether the application for recall in relation to penalty and the delay in determining the issue actually were the reasons for the delay in filing an appeal against dismissal of the contractual claims, but I consider that to be a fair inference, given the earlier demonstrated commitment to appeal.
The Body Shop’s Notice of Appeal set out three grounds of appeal:
Grounds of Appeal
1. In circumstances where:
(a)Associate Justice Lansdowne found there is no information to show exceptional circumstances; and
(b)Associate Justice Lansdowne found that Cowdery filed no evidence seeking to explain the delay in instituting the appeal and as to what occurred in relation to the proposed appeal between 9 May 2013 until the filing of the Notice of Appeal dated and filed 18 October 2013;
Associate Justice Lansdowne erred in finding Cowdery’s failure to institute the appeal within the requisite period was due to exceptional circumstances in accordance with s 109(5)(a) of the Magistrates’ Court Act 1989 (Vic).
2.In circumstances where there was no evidence of Cowdery’s failure to institute the appeal within the requisite period as a consequence of the conduct of Magistrate Ginnane in recalling one order he made on 2 May 2013 and delay in determining the issue of penalty, which conduct Associate Justice Lansdowne found to be ‘exceptional’, her Honour erred in finding that Cowdery’s failure to institute the appeal within the requisite period was due to exceptional circumstances in accordance with s 109(5)(a) of the Magistrates’ Court Act1989 (Vic).
3.By reason of the matters referred to in Grounds of Appeal 1 and 2 above, Associate Justice Lansdowne erred in granting leave to Cowdery to file out of time his appeal filed 18 October 2013 against the dismissal of his contractual claims.
Counsel for Mr Cowdery submitted that the first ground of appeal was misconceived because, contrary to 1(a), Lansdowne AsJ had found ‘information’ to show exceptional circumstances; ie the fact that Ginnane M had been persuaded to recall part of the order he had made on 2 May 2013 during the appeal period. As to ground 2, counsel for Mr Cowdery submitted that it was also misconceived because it ignored the evidence before her Honour that Mr Cowdery had intended to file an appeal within 30 days of 2 May 2013. I do not consider either of these contentions to be persuasive. First, they rely on an unduly narrow reading of the appeal grounds. Second, Mr Cowdery was squarely placed on notice as to the way in which the Body Shop advanced its appeal, via detailed written submissions filed in advance of the hearing. Those submissions clearly articulated two grounds of challenge to her Honour’s reasoning. First, that the matters referred to in [55] did not constitute ‘exceptional circumstances’. Second, that there was no proper basis for her Honour to have drawn an inference in favour of Mr Cowdery that his failure to have filed a notice of appeal within 30 days’ of 2 May 2013 was due to the matters set out in [55].
Both parties were in agreement that the following principles govern the grant of leave to appeal[9] under s 109(5) of the Magistrates’ Court Act:
[9]Burlock v Wellington Street Investments Pty Ltd [2009] VSC 565 (Forrest J) [27], [30], [31], [39] (and cases cited therein) quoted or cited with approval in Miao v Body Corporate SP31235U [2013] VSC 380 [25] and Popal v Accounts Control Management Services Pty Ltd [2010] VSC 412 [15]; Shire of Carnarvon v Klein Corporation Pty Ltd [2008] VSC 24 [28], [34], [35], [40], [41].
(a)The granting of an extension of time is not automatic. Upon the expiry of the time for the lodgement of the appeal, a respondent has a vested right to retain the judgment unless the application is granted;
(b)The onus lies on the applicant to satisfy the test of exceptional circumstances;
(c)Although ‘exceptional’ is defined as meaning ‘unusual, special, out of the ordinary course’ in the Oxford English Dictionary, in the context of the Act, the circumstances must be such that they can be said to ‘rarely occur’ and ‘perhaps be outside reasonable anticipation or expectation’.
(c)The inquiry is confined to the circumstances relevant to the applicant’s failure to appeal within time (i.e. 30 days) and whether they may be characterized as exceptional;
(d)As part of that inquiry, a Court will examine the conduct of the applicant (and his or her agents) in the prosecution of the appeal and the explanation for failing to lodge the notice within time;
(e)As part of that inquiry, a Court will examine the conduct of the applicant (and his or her agents) in the prosecution of the appeal and the explanation for failing to lodge the notice within time;
(f)The inquiry in determining whether exceptional circumstances exist as required by s 109(5) is not a consideration of all matters germane to the appeal;
(g)That which must be established is that the failure to institute the appeal within the statutory period was due to exceptional circumstances;
(h)The exceptional circumstances must relate solely to the explanation for the delay;
(i)By use of the expression ‘exceptional circumstances’, the legislature intended to place a considerable bar in the way of an applicant before leave will be granted. The bar is a ‘significant hurdle’, which requires a ‘persuasive explanation’, to be demonstrated by ‘clear and cogent proofs’.
An affidavit was filed by Mr Cowdery in support of the summons for directions in the appeal. The affidavit was silent as to the reasons why he had not lodged an appeal within 30 days of Ginnane M’s original decision of 2 May 2013. Her Honour’s decision records that, prior to the hearing before her on 14 November 2013, Mr Cowdery was put on notice by way of an affidavit filed on behalf of the Body Shop on 8 November 2013, together with an email exchange between the solicitors for the parties, that the Body Shop would be submitting before her that the appeal in respect of his contractual claims was out of time.[10] No further affidavit was filed by the respondent and no adjournment was sought prior to or on 14 November 2013 to allow an affidavit to be filed. Before me, counsel for Mr Cowdery acknowledged that he had been given an opportunity during the proceedings before her Honour to file a further affidavit but had elected not to take advantage of that opportunity.[11]
[10]Cowdery v Adidem Pty Ltd [2014] VSC 132 [51].
[11]T62: 17-31 — T63: 1-12.
During the proceedings before her Honour, counsel for Mr Cowdery had submitted that it was reasonable for Mr Cowdery, through his solicitors, to have taken the view that no order had been made on 2 May 2013. It was submitted that this view constituted a reasonable basis for Mr Cowdery not to have commenced an appeal within 30 days of 2 May 2013.[12] Counsel repeated this submission before me, contending that the failure of Mr Cowdery to have filed an affidavit explaining his failure to have commenced an appeal within 30 days of 2 May 2013 was entirely consistent with his position that no order had in fact been made on 2 May 2013. Counsel submitted that if Mr Cowdery had filed an affidavit in which he had identified a reason for not filing an appeal within 30 days of 2 May 2013 (other than his belief that there was no order made on 2 May 2013) this would have been ‘totally inconsistent’ with his primary argument that no order had been made on 2 May 2013.[13]
[12]Cowdery v Adidem Pty Ltd [2014] VSC 132 [52].
[13]T62: 29; T65: 19-25.
There are a number of flaws in counsel’s submission that his failure to file an affidavit explaining why he did not file an appeal within the 30 day period is consistent with his primary argument that no order was made on 2 May 2013. First, as is noted by her Honour, the contention that the reason for the failure to file an appeal within 30 days of 2 May 2013, was Mr Cowdery’s belief that no order had in fact been made on 2 May 2013, does not sit well with his clearly stated intention to appeal the decision of 2 May 2013.
As set out above, on 9 May 2013, Mr Cowdery’s solicitors contacted the Body Shop’s solicitors and advised that Mr Cowdery would appeal the decision of 2 May 2013. On 15 May 2013, Mr Cowdery’s solicitors wrote to the Body Shop’s solicitors advising that they had been instructed to initiate an appeal and that the notice of appeal was being settled by counsel. Plainly, as at 15 May 2013, Mr Cowdery and his solicitors were of the view that the decision of 2 May 2013 was amenable to appeal.
The second point to note regarding the proffered explanation for the failure of Mr Cowdery to commence an appeal within 30 days of 2 May 2013, is that if the reason for failing to do so was Mr Cowdery’s belief that no order had been made on 2 May 2013, it would have been open to him to have filed an affidavit to that effect. It is not in dispute that he was given the opportunity to do so but elected not to take advantage of that opportunity. Clearly, had any affidavit been filed by Mr Cowdery, it would have needed to reconcile the stated belief that there was no order operative on 2 May 2013, with the fact that he had given instructions to his solicitors to initiate an appeal, and that counsel had been briefed to settle the notice of appeal.
The third point is that the reason identified by Mr Cowdery for not commencing an appeal within the 30 day period is different from the exceptional circumstances identified by her Honour. At [52] of the judgment, her Honour effectively rejected the proffered explanation that the failure to commence an appeal within 30 days was because Mr Cowdery believed that there had not been an order made on 2 May 2013. Rather, the foundation of her Honour’s conclusion that there were exceptional circumstances, is the consideration that Ginnane M ‘had been persuaded within the appeal period to recall one order he had made on 2 May 2013 to allow for submissions to be made on the question of penalty for breach of s 119’.
Her Honour’s conclusion at [55] that the magistrate was ‘persuaded within the appeal period to recall one order he had made on 2 May 2013’ is erroneous.
Ginnane M’s reasons for decision of 17 July 2013 record the exchange which took place between himself and counsel for Mr Cowdery. It is set out earlier in these reasons for judgment. Whilst it is clear that on 23 May 2013, Ginnane M heard submissions on the question of whether he should recall part of the order he had made on 2 May 2013, he did not decide to do so on that day. To the contrary, [4] of his decision records that he informed counsel for Mr Cowdery on that day that he had a ‘strong recollection’ that counsel for Mr Cowdery had, if not in form, at least in substance, told the court during the hearing on 18 and 19 February 2013, that the matter of penalty would not be pursued. It is clear from the decision of Ginnane M on 17 July 2013 that on 23 May 2013 he did not recall the order. Rather, he indicated to the parties that he would ‘consider the matter and obtain the recording of the hearing’. It is also clear from the decision of 17 July that, post the hearing on 23 May 2013, Ginnane M listened to the recording of the hearing on 18 and 19 February 2013. It was not until 17 July 2013, more than six weeks after the expiry of the appeal period which commenced on 2 May 2013, that Ginnane M determined that he would recall part of the order made on 2 May 2013. The material before me discloses that all that occurred on 23 May 2013 was that Ginnane M indicated that he would consider the matter and obtain a recording of the proceedings on 18 and 19 February 2013.
No contention has been advanced on behalf of Mr Cowdery that by reason of the exchange which took place on 23 May 2013 between counsel for Mr Cowdery and Ginnane M, that Mr Cowdery decided not to proceed with the appeal he had previously stated on 15 May 2013 was being settled by counsel. This is not surprising. The exchange between Mr Cowdery’s counsel and Ginnane M on 23 May 2013, of itself, would not provide a rational explanation for Mr Cowdery not proceeding to file the appeal prior to the expiry of 30 days from 2 May 2013. In response to a question from the court, counsel for Mr Cowdery submitted that Ginnane M did not change his mind on the question of whether Mr Cowdery was seeking the imposition of a penalty, until 17 July 2013 when he issued his reasons for decision following the hearing on 23 May 2013.[14] Counsel’s submissions was to the effect that Mr Cowdery’s belief that there was no order on 2 May 2013 precluded him from deposing to there being any other reason why he did not file an appeal within 30 days of 2 May 2013.
Ms Jardine:Yes. As I said earlier, and I’m trying very hard not to repeat myself, but the fact that there was no affidavit material or nothing in the affidavit material from Mr Cowdery in the hearing before the associate justice justifying why there was a delay and that is actually evidence in favour of granting the — in considering that Mr Cowdery really believed he’d done the right thing by the court and had made the appeal within time of the order and, as I said earlier, if he’d put something in his affidavit ‘Well, if I’m wrong, I didn’t do it for some other reason,’ that would make his primary submission as to there was no order in May absolutely weak and hopeless. So that was the situation.[15]
[14]T57: 10.
[15]T65: 13-25.
Counsel did submit that the course of events between 23 May 2013 and 17 July 2013 were ‘confusing for the parties’.[16] This falls well short of constituting an exceptional circumstance justifying the grant of leave to file outside of the prescribed 30 day period.
[16]T58: 29.
For the reasons set out above, I consider that her Honour erred in concluding that there were exceptional circumstances by reason of the decision of Ginnane M to recall part of the order which he had made on 2 May 2013. However, even if I am incorrect in reaching that conclusion, I do not consider that there was a nexus between the exceptional circumstances found to exist by her Honour, and the decision of Mr Cowdery not to file an appeal within 30 days of 2 May 2013. In order to satisfy the requirements for the grant of leave under s 109(5), the court must be satisfied that the failure to institute the appeal within the prescribed period was due to exceptional circumstances. Her Honour concluded at [56] that it was a ‘fair inference’ given Mr Cowdery’s earlier demonstrated commitment to appeal, that the application for recall in relation to penalty and the delay in determining that issue actually were the reasons for the delay in filing the appeal. I do not consider that there was a sound basis for drawing the inference in favour of Mr Cowdery. First, as I have noted above, the inference is in fact inconsistent with the stated reason proffered by Mr Cowdery’s counsel for his failure to have filed an appeal within the 30 day period, namely, his belief that no order had been made on 2 May 2013. Second, in considering whether or not it is appropriate to draw an inference in favour of Mr Cowdery, due weight must be given to his failure to have filed an affidavit deposing to the reason why he did not lodge an appeal.
In AusNet Electricity Services Pty Ltd v Liesfields,[17] Robson J cited with approval the following statements of principle regarding the assessment of whether a party who bears an onus of proof, has discharged that onus:
[17][2014] VSC 474 [125]-[129].
In G v H, Brennan and McHugh JJ stated:
When a court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party's ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response.[18]
[18](1994) 181 CLR 387, 391-392.
In Ho v Powell, Hodgson JA stated:
In deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision.
…
In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so.[19]
[19](2001) 51 NSWLR 572 [14]-[15].
In Shalhoub v Buchanan, Campbell J stated:
Failure of a party who bears an onus of proof to call an available witness who could cast light on some matter in dispute can be taken into account in deciding whether that onus is discharged, in circumstances where such evidence as has been called does not itself clearly discharge the onus. This is an application of Lord Mansfield's maxim.[20]
[20][2004] NSWSC 99 [71]. This was followed in Australian Securities and Investments Commission v Rich (2009) 75 ACSR 1 [440].
…
In Cook's Construction Pty Ltd v Brown, Hodgson JA stated, in an ex tempore judgment:
Where a party has to prove something and prima facie has available evidence that would directly deal with the question, a court will be very hesitant in drawing an inference in that party's favour from indirect and second-hand evidence, when the party doesn't call the direct evidence that prima facie it could have called, at least unless some explanation is given, or the circumstances themselves provide an explanation.[21]
[21](2004) 49 ACSR 62 [42].
There is no issue between the parties that Mr Cowdery bore the onus of proof of establishing both the existence of exceptional circumstances and, also, that his failure to initiate an appeal within the 30 day period was due to those exceptional circumstances. He had the opportunity to lead direct evidence in relation to that issue but chose not to do so. His failure to take advantage of the opportunity to place direct evidence before the court, setting out the reasons for his failure to lodge an appeal within the prescribed period is a powerful consideration weighing against the drawing of an inference in his favour. This is particularly so in circumstances where the inference drawn by her Honour was inconsistent with the reason proffered by Mr Cowdery (and rejected by her Honour) for not commencing an appeal within 30 days of 2 May 2013, namely, his belief that no order had been made on 2 May 2013.
Her Honour concluded that Mr Cowdery’s ‘earlier demonstrated commitment to appeal’ supported the inference that his failure to file a notice of appeal within 30 days of 2 May 2013 was due to the application for recall in relation to penalty and the delay in determining the issue. Whilst there was evidence that as at 15 May 2013 Mr Cowdery was committed to filing an appeal, her Honour fell into error in relying upon that stated commitment as the basis for drawing the inference. First, the stated commitment was of limited probative value, as it was directly inconsistent with the reason proffered by Mr Cowdery’s counsel for the failure to file an appeal within 30 days; ie his belief that there was no order made on 2 May 2013. Second, any weight to be attributed to the stated commitment to file an appeal was greatly diminished by the failure of Mr Cowdery, despite having ample opportunity to do so, to file direct evidence explaining his failure to have filed within 30 days of 2 May 2013.
Conclusion
The orders of Lansdowne AsJ made 1 April 2014 granting leave to Mr Cowdery to file out of time his appeal filed 18 October 2013 against the dismissal of his contractual claims, must be set aside. In lieu thereof, the court will order that Mr Cowdery’s application for leave to appeal against the dismissal of his contractual claims pursuant to s 109 of the Magistrates’ Court Act is refused.
There will be no order as to costs. During the course of the proceedings I raised with the parties the potential impact of s 570 of the Fair Work Act upon the power of the Supreme Court to order costs pursuant to s 24 of the Supreme Court Act 1986. Shortly after the conclusion of the proceedings, I was informed by each of the parties that, if successful in the appeal, no order for costs would be sought.
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