Chalmers, Alan v Deakin University

[1997] FCA 766

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - complaint of unlawful termination - application for extension of time in which to review decision of judicial registrar - consideration of principles to be applied - whether acceptable explanation of delay

Workplace Relations Act 1996
Industrial Relations Court Rules  o 74 r 3

Roger Coyne v Ansett Transport Industries (Operations) Pty Ltd (IRCA, Marshall J, 9 May 1996, unreported)
Roger Coyne v Ansett Transport Industries (IRCA, Full Court, 24 Sept 1996, unreported)
Brodie-Hanns v MTV Publishing (1995) 67 IR 298

ALAN CHALMERS v DEAKIN UNIVERSITY
VI 1908 of 1996

MARSHALL J
MELBOURNE
11 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA  DISTRICT REGISTRY	)  VI 1908 of 1996
)
GENERAL DIVISION	)

BETWEEN:	ALAN CHALMERS Applicant
AND:	DEAKIN UNIVERSITY Respondent

JUDGE:	MARSHALL J
PLACE:	MELBOURNE
DATED:	11 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The applicant’s notice of motion dated 3 July 1997 is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA  DISTRICT REGISTRY	)   VI 1908 of 1996
)
GENERAL DIVISION	)

BETWEEN:	ALAN CHALMERS Applicant
AND:	DEAKIN UNIVERSITY Respondent

JUDGE:	MARSHALL J
PLACE:	MELBOURNE
DATED:	11 AUGUST 1997

REASONS FOR JUDGMENT

This is an application by Mr Alan Chalmers for an extension of time within which to seek a review of the exercise of power by a Judicial Registrar.  An application for review is required to be made within twenty-one days after the order of the Judicial Registrar.

In this matter, Judicial Registrar Murphy delivered ex-tempore reasons for judgment on 16 April 1997.  Mr Chalmers was present in Court when those reasons were given.  He was extremely displeased with the result and became engaged in an acrimonious discussion with his solicitor whose services he promptly terminated.  Mr Chalmers was aware that time limits applied in proceedings to the Workplace Relations Act 1996. He had earlier been granted an extension of time within which to bring his original application by Commissioner Whelan of the Australian Industrial Relations Commission.

Mr Chalmers attended at his former solicitors’ office in mid-May 1997 and obtained his file from those solicitors.  The file contained the written version of the ex-tempore reasons which the Judicial Registrar had orally delivered on 16 April 1997.  The covering letter from the Industrial Relations Court of Australia (IRCA) which accompanied the reasons was dated 1 May 1997.

Mr Chalmers was advised by his former solicitor in mid-May 1997 that he had no right of review against the judgment of the Judicial Registrar.  This, of course, was incorrect advice.  Mr Chalmers appears to have accepted this advice.  He made no contact with IRCA until he wrote to Chief Justice Wilcox on 13 June 1997.  In his letter to the Chief Justice, he asserted that he had not received any advice concerning his rights of review.  This was not so, because as referred to earlier in these reasons, negative advice in that respect had been received some one month earlier when he attended at the office of his former solicitors to retrieve his file.  The Associate to the Chief Justice, Mr Lachlan Armstrong, replied to Mr Chalmers by letter dated 18 June 1997.  Mr Armstrong noted that in order to review the decision of the Judicial Registrar, an extension of time would be required given that the time limit was twenty-one days.  I am satisfied that Mr Chalmers would have received Mr Armstrong’s letter at least by Monday, 23 June 1997.  He consulted a couple of solicitors on or after 23 June 1997 who would not act without charge.  Finally, Ms Roxon of Maurice Blackburn & Co, agreed to prepare a notice of motion for him seeking an extension of time within which a review application could be filed.  The appointment with Ms Roxon occurred on 1 July 1997.  Solicitors for the respondent, Deakin University, were advised by Ms Roxon on 2 July 1997 that an application would be made.  The relevant notice of motion and accompanying affidavit of Ms Roxon were filed and served on 3 July 1997.  The matter came before me at this morning’s directions hearing list.

Both parties agreed that the principles referred to in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-301 should be applied with necessary modifications in considering this application for an extension of time. I now turn to those principles.

Is there an acceptable explanation for the delay?

The application for review should have been filed and served by 1 May 1997.  It is effectively only just over two months out of time.  I do not, however, believe that there has been an acceptable explanation for the delay.  It appears that Mr Chalmers acted on the basis, at least until 13 June 1997, that he had no right of review.

He took no action to ask about any such rights until about one month after the ex-tempore decision of the Judicial Registrar.  When he did ask he received incorrect legal advice.

In Roger Coyne v Ansett Transport Industries (Operations) Pty Ltd  (IRCA, Marshall J, 9 May 1996, unreported) I said as follows on the question of incorrect legal advice:

“The fact that one receives incorrect legal advice as to the availability of a remedy from one’s union representative is not a reasonable explanation for the delay in filing an application.  There is no explanation as to why the applicant didn’t seek legal advice from a lawyer prior to 25 April 1995 (some two months after his termination).  There is no explanation as to why it took from early May until early August for his solicitors to discover the provisions of s 170EA(3) of the Act.  The application should have been filed on or before 6 March 1995.  It was filed five months out of time.  This, of itself, is not fatal.  See Albin Erich Richsteiger v Century Geophysical Corporation, Industrial Relations Court of Australia, TI 1256 of 1995, Marshall J, 26 April 1996, as yet unreported.  The blame for two of those five months of delay can be laid at the feet of the applicant for delaying in seeking advice from a lawyer.  The other three months of delay is referrable to the applicant’s solicitors.  In Duff and others v Freijah and others (1982) 62 FLR 280, 287, Northrop J said:

‘... It is well established that delays by a solicitor are visited upon the client when those delays are relevant to limitation periods or matters involving want of prosecution.’

See also Wolcott v Davis (1984) 4 FCR 124, 128 where Muirhead J said:-

‘... it is the parties’ solicitors who, on their behalf, conduct litigation and who have the obligation of complying with statutory procedures.  It could seldom be said that the failure of a solicitor to institute an appeal in time, caused by ignorance or negligence rather than by fortuitous circumstances, such as sickness or accident, constituted special reasons.’ ”

On appeal in Roger Coyne v Ansett Transport Industries (IRCA, Full Court, 24 Sept 1996, unreported) the following was said regarding that part of my judgment that dealt with a solicitor’s delay:

“The delay from 25 April 1995 is attributable to a combination of apparent ignorance or oversight by the appellant’s solicitors of the existence of the time limit and the time taken by the appellant to raise the money required by those solicitors as a condition of instituting proceedings.  We find nothing erroneous in the learned primary Judge’s analysis of those facts or his discussion of the circumstances in which a solicitor’s delay or negligence may prejudice a client’s application for extension of time.”

Delay from 13 June 1997 when Mr Chalmers appears, given the terms of his letter to the Chief Justice, to have doubted his former solicitor’s advice, can squarely be laid at the feet of Mr Chalmers in not seeking alternate legal advice until 1 July 1997.

The delay throughout May and June 1997 is the shared responsibility of Mr Chalmers and his former solicitors who represented him before the Judicial Registrar.  Not one day of it was a period in respect of which a reasonable explanation has been given.  This aspect goes against exercising my discretion to grant an extension.

Other action taken by the applicant

Mr Chalmers took no action to advise the University that he was contesting the judgment of the Judicial Registrar until Ms Roxon rang its solicitors on 2 July 1997.  This aspect also goes against the granting of an extension.

Prejudice to the respondent

No particular prejudice was raised by the respondent but the mere absence of prejudice will not favour an extension of time.  This aspect is neutral.

Merits of the application

I consider this aspect neutral as it appeared to be a matter of active contest by Mr Chalmers despite the University’s submission that the matter was clear cut.  I am not satisfied in the time I have had available to consider the matter that Mr Chalmers was bound to fail.  This aspect is neutral.

Fairness as between others in like positions

If I had granted the extension of time in this matter, I believe I would have sent a bad signal to parties involved in such proceedings, i.e., the Court is prepared to encourage dilatory behaviour by applicants for review and their legal representatives.  I exclude, of course, in that last observation any criticism of Maurice Blackburn & Co and Ms Roxon in particular who did act with alacrity.

CONCLUSION

Given that:

• there is no acceptable explanation for the delay in seeking the review;

• no action was taken to put the decision of the Judicial Registrar in contest prior to 2 July 1997; and

• considerations of fairness as between Mr Chalmers and other persons in a like position militate against  an extension of time,

the Court refuses to exercise its discretion under O 74 r 3 of the Rules of IRCA to extend the time within which a review application may be made.

The order of the Court is:

1. The applicant’s notice of motion dated 3 July 1997 is dismissed.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:            11 August 1997

Applicant appeared in person
Counsel for the Respondent:	S Stuckey
Solicitors for the Respondent:	Arthur Robinson & Hedderwicks
Date of Hearing:	11 August 1997
Date of Judgment:	11 August 1997