Chalmers v Deakin University

[1998] FCA 1187

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW – Complaint of unlawful termination heard by Judicial Registrar – Application to review decision of Judicial Registrar out of time – Extension of time refused by primary Judge – Whether primary Judge erred in refusing to exercise discretion to extend time.

Industrial Relations Court Rules 1988 O 52 rr 2, 3, 4, 5, 33

Workplace Relations and Other Legislation Amendment Act 1996 Schedule 16, Item 67

Arnotts Ltd v Trade Practices Commission (1989) 24 FCR 313, applied

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, applied
Coyne v Ansett Transport Industries, IRCA, Full Court, 24 Sept 1996, unreported, applied

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, applied

Deighton v Telstra Corporation Ltd, Full Federal Court, 17 Oct 1997, unreported, referred
Hall v Nominal Defendant (1967-68) 117 CLR 423, applied

Hargreaves v National Safety Council of Australia (1997) 74 IR 19, applied

Harrington v Lowe (1997) 190 CLR 311, applied

Harris v Caladine (1991) 172 CLR 84, referred

House v The King (1936) 55 CLR 499, applied
Hunter Valley Developments Pty Ltd v Cullen (1984) 3 FCR 344, referred

Jess v Scott (1986) 12 FCR 187, applied
Keller v QBE (Investments) Ltd, IRCA, Gray J, 5 June 1995, unreported, referred
Orr v Holmes (1948) 76 CLR 632, applied

Sophron v Nominal Defendant (1956-57) 96 CLR 469, referred

CHALMERS v DEAKIN UNIVERSITY
No VG 492 of 1997

JUDGES:      RYAN, OLNEY and NORTH JJ

DATE:           23 SEPTEMBER 1998

PLACE:         MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	No.VG 492 of 1997

BETWEEN:	ALAN CHALMERS APPELLANT
AND:	DEAKIN UNIVERSITY RESPONDENT
JUDGES:		RYAN, OLNEY, AND NORTH JJ
DATE OF ORDER:		#23 SEPTEMBER 1998
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The appellant be granted an extension of time within which to seek leave to appeal.

1. Leave to appeal be granted.

1. The appeal be allowed.

1. The decision appealed from be set aside and, in lieu thereof, the appellant be granted an extension of time within which to seek a review of the decision of Judicial Registrar Murphy.

1. The appellant’s application for review be remitted for hearing by a single Judge.

1. The appellant’s notice of motion be otherwise 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	NO. VG 492 of 1997

BETWEEN:	ALAN CHALMERS APPELLANT
AND:	DEAKIN UNIVERSITY RESPONDENT

JUDGES:	RYAN, OLNEY, AND NORTH JJ
DATE:	# 23 SEPTEMBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. There is before the Court an application for leave to appeal from an order of Marshall J dismissing the appellant’s notice of motion dated 3 July 1997 seeking an extension of time within which to lodge a notice of motion to review an order of Murphy JR of the Industrial Relations Court of Australia made on 16 April 1997, dismissing the applicant’s application pursuant to s 170 EA of the Workplace Relations Act 1996 (“the Act”) and ordering the applicant to pay the respondent’s costs.

BACKGROUND

1. The appellant (“Mr Chalmers”) commenced employment with a predecessor of the respondent (“the University”) in 1973.   Mr Chalmers was employed as a lecturer pursuant to the Universities and Post Compulsory Academic Conditions Award 1995 (“Award”).   In 1992 the University became the successor to Mr Chalmers’ prior employer.

2. Mr Chalmers last performed work as a lecturer on 23 March 1992 when the University concluded that he was totally and permanently incapacitated for work.   Between 1992 and 1996 Mr Chalmers remained totally incapacitated and did not work. 

3. The University forwarded a letter dated 13 April 1994 to Mr Chalmers requiring him to undergo a medical examination to determine whether he was fit for work.   Mr Chalmers refused to undertake a medical examination.   There followed, particularly in 1995, correspondence between the parties concerned mainly with Mr Chalmers’ entitlements under the State Superannuation Act1988 (Vic) and the Accident Compensation Act1985 (Vic). The detail of this correspondence is not relevant to the present application.

4. The University forwarded a letter dated 8 December 1995 to Mr Chalmers, which gave him notice of the termination of his employment to take effect from close of business on 7 June 1996.   Mr Chalmers’ employment was terminated pursuant to cl 16 of the Award, which provides that the Chief Executive Officer may terminate employment by giving six months’ notice, where a medical examination reveals that an employee is unable to perform his or her duties.

5. On 3 June 1996 Mr Chalmers lodged with the Australian Industrial Relations Commission an application pursuant to s 170 EA of the then IndustrialRelations Act 1988 (Cth). On 11 July 1996 Commissioner Whelan granted Mr Chalmers an extension of time within which to lodge the application.

6. Murphy JR heard the application on 16 April 1997.  Mr Chalmers gave evidence, and was represented by his then solicitor, Mr Keith Elliott.   The Judicial Registrar decided that the University had discharged its onus of proving that it had a valid reason for the termination of Mr Chalmers’ employment, essentially consisting of Mr Chalmers’ inability to perform his duties. The learned Judicial Registrar ordered Mr Chalmers to pay the University’s costs of the application which he considered had been “doomed to fail” as, on his own version of the facts, at all times from 1992 Mr Chalmers had been unable to work.

7. Immediately following the delivery of the Judicial Registrar’s ex tempore reasons on 16 April 1997, Mr Chalmers had an acrimonious disagreement with Mr Elliott, and withdrew his instructions.    Mr Chalmers did not, on that day, obtain advice from Mr Elliott concerning any right which he may have had to appeal or obtain a review of the Judicial Registrar’s decision.  Mr Chalmers’ evidence before the learned primary Judge was that he decided to wait for the Judicial Registrar’s written reasons as Mr Elliott had advised him to “wait until you get the printed reasons then you’ll know exactly what happened”. Mr Chalmers had no notes of the Judicial Registrar’s orally pronounced reasons and said that he was “probably in a state of shock at that time” and was “too busy concerned with discussing what went wrong and why”.

8. Mr Chalmers’ further evidence at first instance revealed the following sequence of events:

a)A letter dated 1 May 1997 from Murphy JR’s associate was forwarded to Mr Elliott.   This letter enclosed the written text of the Registrar’s reasons.  It did not refer to any right of review that Mr Chalmers may have had.   (It does not appear that Mr Elliott forwarded a copy of the letter to Mr Chalmers.)

b)Mr Chalmers attended at Mr Elliott’s office in mid May 1997 to obtain his file.  Mr Elliott advised Mr Chalmers, presumably while handing over his file, that, due to the absence of any reference in the 1 May 1997 letter to a right of appeal or review “there was probably no right of appeal existing in relation to the decision”.  Mr Chalmers, accordingly, formed the view that his “only avenue of objection appeared to lie in a formal written complaint that may lead to a subsequent investigation.” Mr Chalmers stated that he then accepted the decision as he had been admitted to hospital at approximately that time and “had other things happening”.   Mr Chalmers also believed that he had 60 days within which to pursue any avenue of disputing the Judicial Registrar’s decision as he had previously encountered a 60 day time limit in which to seek a review of an adverse decision of the Equal Opportunity Commission of Victoria.   Mr Chalmers further stated that he did not take any action until mid June as he “had a pretty down and out feeling about solicitors” was ill, and had “other matters also in train”. 

c)Mr Chalmers forwarded a letter dated 13 June 1997 to Wilcox CJ of the Industrial Relations Court.   The letter stated that Mr Chalmers was giving formal written notice of his intention to “complain extensively about” and seek a “review and/or appeal” of Murphy JR’s decision. Wilcox CJ’s associate replied by way of a letter dated 18 June 1997 to Mr Chalmers, informing him of his right of review and indicating  that a motion seeking review was ordinarily required to be filed within 21 days of the decision, and that leave of a judge would be required to file the motion for review outside the normal time limit.  

d)As Mr Chalmers lives in Blairgowrie, he received the letter dated 18 June 1997 within 3 or 4 days as the mail “goes through the Sorrento Post Office, then to the Blairgowrie agency”.   On receipt of the letter, he sought legal advice from various firms of solicitors, and finally obtained a “successful appointment” on 1 July 1997 with Ms Nicola Roxon of Maurice Blackburn & Co.  On 3 July 1997 Maurice Blackburn & Co filed a notice of motion on Mr Chalmers’ behalf applying for review of the Judicial Registrar’s decision and for leave to file the motion out of time.

1. On 11 August 1997 Marshall J dismissed Mr Chalmers’ notice of motion and refused to extend the time within which Mr Chalmers could obtain a review of the Judicial Registrar’s decision

2. On 11 August 1997 Mr Chalmers did not apply orally to Marshall J for leave to appeal pursuant to O. 52 r. 2B of the Industrial Relations Court Rules from his Honour’s refusal of his application.   Nor did Mr Chalmers file a notice of motion formally seeking leave to appeal from a single judge or a Full Court within 21 days of 11 August 1997, as required by O. 52 rr.  3, 4 and 5.

3. On 28 August 1997 Mr Chalmers filed a document entitled “Notice of Appeal” seeking that Marshall J’s order of 11 August 1997 be set aside, that Murphy JR’s decision be reviewed, that the award of costs ordered by Murphy JR be set aside or stayed, and that leave be granted to file the notice of appeal outside the normal time limit.   The notice of appeal was accompanied by a detailed statement of grounds of appeal.

4. On 12 November 1997 the University filed and served a notice of motion seeking orders that Mr Chalmers’ proceeding be dismissed or stayed, and that Mr Chalmers pay the University’s costs of the application.   On 17 November 1997 Black CJ refused to dismiss Mr Chalmers’ appeal as incompetent, and ordered that all issues be determined by the Full Court on appeal.

5. Mr Chalmers subsequently filed a notice of motion dated 28 January 1998, seeking to adduce additional evidence on appeal and to include in his notice of  appeal filed on 28 August 1997 a formal application for  leave to appeal from Marshall J’s refusal of an extension of time.   The additional evidence sought to be adduced, the detail of which we consider below, was exhibited to Mr Chalmers’ affidavit dated 28 January 1998, which accompanied his notice of motion of the same date.

THE DECISION OF THE PRIMARY JUDGE

1. The learned primary Judge refused to exercise his discretion to extend the time within which Mr Chalmers could seek review of the Judicial Registrar’s decision. In doing so his Honour examined one by one some factors relevant to applications for extensions of time within which to bring applications under s 170 EA of the Act, as set out in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298. As he undertook that examination his Honour considered the significance of those factors to an application for an extension of time within which to review a Judicial Registrar’s decision. It is convenient to consider his Honour’s examination of these factors .

THERE WAS NO ACCEPTABLE EXPLANATION FOR MR CHALMERS’ DELAY

1. It is relevant initially to point out that his Honour stated in his reasons dated 11 August 1997 that “the application for review should have been filed and served by 1 May 1997”.  This statement was later corrected by corrigendum dated 15 September 1997 to read “7 May 1997”.   This later date correctly reflected the 21 day time limit which commenced to run from 16 April 1997, the date of Murphy JR’s decision.   We note also that his Honour stated, using the incorrect date of 1 May 1997 as marking the expiration of the 21 day time limit, that Mr Chalmers’ application for review was “effectively only just over two months out of time”.   A more accurate statement, given that 7 May 1997 represented the conclusion of the period within which Mr Chalmers was entitled as of right to seek a review, is that the application for review was “just under two months out of time”.

2. His Honour took the view that “not one day” of Mr Chalmers’ delay in lodging his application for review “was a period in respect of which a reasonable explanation has been given”.   In particular, his Honour found that, until 13 June 1997, Mr Chalmers had acted on the basis that he had no right of review, he did not ask about his rights until about one month after the Judicial Registrar’s decision, that delay from 13 June 1997 was the fault of Mr Chalmers in not seeking alternative legal advice until 1 July 1997, and that Mr Chalmers and Mr Elliott shared responsibility for the delay through May and June 1997.

OTHER ACTION TAKEN BY THE APPLICANT

1. His Honour found that Mr Chalmers took no other action to advise the University that he contested the Judicial Registrar’s decision until 2 July 1997, when Ms Roxon of Maurice Blackburn & Co telephoned the University’s solicitors.   In his Honour’s view this tended against granting an extension.

PREJUDICE TO THE RESPONDENT

1. The University did not submit that it would suffer prejudice if an extension of time were granted. His Honour viewed this as “neutral” as the absence of prejudice to the University did not of itself favour an extension of time.

MERITS OF THE APPLICATION

1. His Honour found that the merits of the application were also a “neutral” factor, as Mr Chalmers actively contested the lawfulness of his dismissal and his Honour could not be satisfied in the time available to consider the matter that Mr Chalmers was bound to fail.

FAIRNESS AS BETWEEN OTHERS IN LIKE POSITIONS

1. His Honour considered that it would send a bad signal to other parties if the Court were to encourage “dilatory behaviour” by applicants for review and their solicitors.

ISSUES ON APPEAL

1. In our view it is appropriate to examine in the following order the issues which have been raised before the Full Court:

a)Whether Mr Chalmers should be granted an extension of time within which to file his notice of motion seeking leave to appeal from Marshall J’s order of 11 August 1997.

b)Whether leave to appeal from his Honour’s decision ought be granted.

c)If leave to appeal is granted, whether Mr Chalmers may adduce evidence in addition to that adduced in the court below.

d)If leave to appeal is granted, whether the appeal should be allowed.

SHOULD THERE BE AN EXTENSION OF TIME WITHIN WHICH TO SEEK LEAVE TO APPEAL?

1. Order 52 rule 3 of the now repealed Industrial Relations Court Rules 1988 provided that, where an application for leave to appeal from an interlocutory judgment had not been made orally to the Judge pronouncing the judgment, an application might be made by motion on notice to a single Judge or to a Full Court. The notice was required to be filed and served within 21 days from the pronouncement of the relevant judgment: Order 52 rule 5 (a). The operation of Item 67 of Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 (WROLA Act) means that the Industrial Relations Court Rules are applicable to Mr Chalmers’ application for leave to appeal:  Hargreaves v National Safety Council of Australia (1997)74 IR 19.

2. In our view Marshall J’s judgment of 11 August 1997 was an interlocutory judgment.   The test to determine whether a judgment is interlocutory or final is whether the rights of the parties are finally disposed of: Hall v Nominal Defendant (1967-68) 117 CLR 423. We note that in Hall’s case a majority of the High Court held that an order made under s 65 A(3) of the Traffic Act 1925 (Tas), refusing an application for an extension of time within which to institute proceedings against the nominal defendant, was not a final order. The High Court held that the order did not operate finally to deprive the plaintiff of a right of action, as it was open to the plaintiff to make a further application for an extension of time and the substantive merits of his cause of action were not determined. In our view that reasoning is applicable to the present case. We also note that in Keller v QBE (Investments) Ltd, 5 June 1995, unreported, Gray J appeared to prefer the view that an order of a primary Judge refusing an application for an extension of time within which to review the decision of a Judicial Registrar was an interlocutory order.

3. Mr Chalmers filed the notice of motion required by O. 52 r. 3(a) on 28 January 1998.  The motion sought, inter alia, leave to appeal from Marshall J’s decision, “(Pursuant, I understand, to Order 52, rule 10)”.   The latter statement in parenthesis was a technically incorrect reference to the Federal Court Rules rather than the Industrial Relations Court Rules, an error that in our view has no significance.   Given that his Honour’s decision was handed down on 11 August 1997, the motion was required to be filed by 1 September 1997.   It was accordingly filed nearly five months out of time.

4. Of significance, however, is the fact that on 28 August 1997 Mr Chalmers filed a document entitled “Notice of Appeal”.   The University was put on notice from that date that Mr Chalmers contested his Honour’s decision, so much so that on 12 November 1997 it filed an unsuccessful notice of motion seeking that Mr Chalmers’ appeal be dismissed.   We note that at the hearing of the University’s motion before Black CJ on 17 November 1997, counsel for the University stated that the University’s position was “that all of the preliminary matters should be heard in March” (of 1998).  The University was, accordingly, not prejudiced by the lateness of Mr Chalmers’ motion, once it had been properly filed in January 1998.

5. We have decided in these circumstances to grant Mr Chalmers an extension of time within which to seek leave to appeal.   We note also that Mr Chalmers is an unrepresented applicant. Although he has not complied strictly with the Industrial Relations Court Rules, his filing of the Notice of Appeal within 17 days of his Honour’s decision was, in our view, a genuine attempt to comply with these rules.   We have also taken into account Mr Chalmers’ prospects of obtaining leave to appeal and of succeeding on the appeal which, for the reasons set out below, are not inconsiderable.

6. We note finally in this respect that a Full Court of this Court suggested in Deighton v Telstra Corporation Limited, (17 October 1997, unreported) that, as with an order pursuant to O. 52 r. 15(2) of the Federal Court Rules extending time within which to appeal, “special reasons” may be required if time within which to appeal from an interlocutory judgment is to be extended.   If this be correct we consider that the action taken by Mr Chalmers in August 1997 to contest his Honour’s decision, together with his prospects of success on appeal, constitute the requisite “special reasons”.

WHETHER THE APPLICANT SHOULD HAVE LEAVE TO APPEAL FROM THE ORDER OF THE PRIMARY JUDGE

1. In most cases there are two major considerations relevant to the grant of leave to appeal. The first is whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered by the Full Court, and the second is whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, at 398-400. For the reasons which are developed later, we are of the view that his Honour erred, in the present case, in refusing an extension of time in which to commence a review of the decision of the Judicial Registrar. To deny Mr Chalmers the chance to challenge the decision of the Judicial Registrar would cause injustice to him. Consequently, we grant leave to appeal.

WHETHER MR CHALMERS MAY ADDUCE ADDITIONAL EVIDENCE ON APPEAL

1. The notice of motion filed on 28 January 1998 by Mr Chalmers sought the following order from the Court;

   “1. To receive evidence additional/further to evidence in the Court below (Rule 36)”

2. The reference to Rule 36 of the Federal Court Rules is erroneous because, in our view, given the operation of Item 67 of Schedule 16 of the WROLA Act referred to in paragraph 25 above, the Industrial Relations Court Rules also govern this issue.

3. Order 52 r. 33 of the Industrial Relations Court Rules provided that an application to the Court to receive evidence additional to evidence in the Court below should be made by motion on the hearing of the appeal without filing or serving notice of the motion (R. 33 (3)), and that the grounds of the application shall be stated in an affidavit (R. 33(4)).     Mr Chalmers filed and served the relevant notice of motion dated 28 January 1998, together with an affidavit of the same date, before the hearing commenced before this Full Court.   Annexed to the affidavit was the additional evidence on which Mr Chalmers sought to rely consisting of:

a)a copy of an “outline of resolution” dated 4 May 1997 apparently forwarded to the Equal Opportunity Commission of Victoria, which provides a summary of events leading up to and surrounding Mr Chalmers’ dismissal; and

b)copies of documents and correspondence passing between Mr Chalmers and the University concerning Mr Chalmers’ employment, and particularly his entitlements pursuant to superannuation and workcover legislation.

1. The relevant principles governing the introduction of new evidence on appeal indicate that the evidence will not be admitted unless:

a)it is shown that the evidence could not have been adduced at first instance (Orr v. Holmes (1948) 76 CLR 632 at 644 per Dixon J); and

b)it is almost certain that, if the evidence had been available, an opposite result would have been reached at first instance (Arnott’s Ltd v Trade Practices Commission (1989) 24 FCR 313).

1. Mr Chan of counsel for the University correctly submitted that all but three of the documents that Mr Chalmers sought to introduce pre-date the decision of the Judicial Registrar dated 16 April 1997. It was further submitted that none of those was capable of showing any error by the learned primary judge. HAs his Honour , however, treated the merits as neutral, in spite of the Judicial Registrar’s finding that Mr Chalmers’ application was “doomed to fail”, it is unlikely that the. The bulk of the correspondence therefore would not have correspondence would have had such an impact on his Honour’s reasoning in respect to the merits that an opposite conclusion would have been reached.   Further, the correspondence was available at the time of the hearing before the Judicial Registrar. We therefore  decline to admit this correspondence.

2. Of the three documents which postdate the Judicial Registrar’s decision, the documents dated 22 April 1997 and 27 June 1997 have no possible relevance to the exercise of his Honour’s discretion.   The document dated 4 May 1997 entitled “outline of resolution” is in a slightly different category.   It was apparently forwarded to the Equal Opportunity Commission three weeks after the Judicial Registrar’s decision, and constituted a component of Mr Chalmers’ separate complaint to the Equal Opportunity Commission.   On the one hand, it may suggest that Mr Chalmers was capable of pursuing his rights at that time and was mindful of the need to take action.   On the other hand it may suggest that Mr Chalmers genuinely believed that he had no right to seek a review of the Judicial Registrar’s decision and was, accordingly, pursuing other alternatives. Whichever way the document is seen as tending, it cannot be said that the primary Judge, if the document had been before him, would have almost certainly reached a conclusion that the extension of time should be granted.   We note also that Mr Chalmers has produced no evidence to the effect that he was unable to adduce the document at first instance.   Accordingly, we are not persuaded to exercise the Court’s discretion to receive the additional evidence.

WHETHER THE APPEAL SHOULD BE ALLOWED

1. It is convenient, before considering the correctness of his Honour’s conclusions, to set out the observations of the High Court in House v The King  (1936) 55 CLR 499 relating to appeals against the exercise of a discretion (per Dixon, Evatt and McTiernan JJ at 504):

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. 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…”.

1. Bearing these observations in mind, we turn to his Honour’s conclusions in respect of each of the factors considered.

WHETHER THERE WAS AN ACCEPTABLE EXPLANATION FOR THE DELAY

1. We respectfully differ from the learned primary Judge’s conclusion that “not one day” of Mr Chalmers’ delay in lodging the application for review “was a period in respect of which a reasonable explanation has been given”.

2. His Honour concluded that the delay from 13 June 1997 “can squarely be laid at the feet of Mr Chalmers in not seeking alternate legal advice until 1 July 1997”. However, this conclusion is inconsistent with the unchallenged evidence given by Mr Chalmers to his Honour.   As indicated in paragraph 9 above, Mr Chalmers wrote to the associate to the Chief Justice on 13 June 1997.   His Honour was satisfied that Mr Chalmers would have received the response by 23 June 1997.   His Honour accepted that Mr Chalmers consulted a number of solicitors before retaining Maurice Blackburn & Co on 1 July 1997. The notice of motion and accompanying affidavit were then promptly filed and served.   In consequence, it cannot be said that the delay between 13 June 1997 and 1 July 1997 was attributable to Mr Chalmers. The evidence in our view shows that Mr Chalmers acted promptly on receipt of the letter from the associate to Wilcox CJ. We accordingly consider that, in respect of the period from 13 June 1997 to 1 July 1997, Mr Chalmers has provided an acceptable explanation for the delay. 

3. The issue then turns on the period from 16 April 1997 to 13 June 1997.   His Honour found that Mr Chalmers did not ask about any rights of review until about one month after the Judicial Registrar’s ex tempore decision and that “when he did ask he received incorrect legal advice”. Mr Chalmers stated, in response to a question from his Honour as to whether he had sought advice on 16 April 1997 as to his alternatives:

   “No, no, we were too busy concerned with discussing what went wrong and why, to be honest.” (transcript, p17)

4. However, Mr Chalmers also stated, in response to a question from Counsel for the University as to whether he was aware of the time limit for a review:

   “… I waited for the ex tempore reasons … I was advised by Keith, my solicitor, at the trial that “wait until you get the printed reasons then you’ll know exactly what happened.”  (transcript, p7)

5. Thus, Mr Chalmers received advice from his solicitor on 16 April 1997 as to his options.   He was told to wait for the ex tempore reasons.   This is consistent with Mr Chalmers attending at Mr Elliott’s office in mid May 1997 to obtain his file and the written reasons of the Judicial Registrar.   Mr Chalmers was then told by Mr Elliot that, due to the absence of any reference in the 1 May 1997 letter to a right of appeal or review, there was probably no right of review.  Mr Chalmers gave evidence that he accepted this advice, but decided nonetheless to lodge “a formal written complaint that may lead to a subsequent investigation” (transcript, p20).   Mr Chalmers believed that a 60 day time limit would apply to the lodging of such a written complaint and his letter dated 13 June 1997 to Wilcox CJ was forwarded about two days before such a  time limit would have expired.

6. The evidence therefore established that the delay between 16 April 1997 and 13 June 1997 was attributable to:

a)Mr Elliott’s advice on 16 April 1997 to wait for the ex tempore reasons;

b)Mr Elliott’s advice in mid May 1997 that no right of review existed; and

c)Mr Chalmers’ incorrect assumption that a 60 day time limit would apply to any other avenue of complaint.

1. The question of whether error of a legal representative is a sufficient reason for the grant of an extension of time depends on the facts and circumstances of each case: Sophron v NominalDefendant 96 CLR 469 at 474; Jess vScott (1986) 12 FCR 187. A relevant distinction is that between delay attributable to the representative where the applicant is blameless, and delay to which the conduct of the applicant has contributed: Hunter Valley Developments Pty Ltd vCullen (1984) 3 FCR 344 at 351 per Wilcox J. The conduct of the applicant is at all times a central consideration.

2. Applying this approach, it is not possible to accept in full the primary Judge’s view that “the delay throughout May and June 1997 is the shared responsibility of Mr Chalmers and his former solicitors…”.   Mr Chalmers questioned Mr Elliott on 16 April 1997 and received inadequate advice.   He then received positively incorrect advice in mid May 1997.   Mr Chalmers in no way contributed to these errors of his representative. It was accordingly incorrect advice of his representative, rather than delay by the representative or himself, which was the major cause of  Mr Chalmer’s delay until mid May 1997 in lodging the application for review.

3. Mr Chalmers did delay from mid May 1997 to 13 June 1997 in lodging a written complaint.   That delay was caused by his incorrect belief that a 60 day time limit would govern the lodging of a written complaint.   We are not prepared, however, to find that an incorrect view held by an unrepresented applicant concerning a question of law is an unacceptable explanation for a four week delay, where the applicant has previously received incorrect legal advice dealing directly with the question.  We therefore consider that Mr Chalmers has provided an acceptable explanation for the delay in lodging his application for an extension of time.

OTHER ACTION TAKEN BY THE APPLICANT

1. There can be no dispute with the finding at first instance that Mr Chalmers took no other action to advise the University that he was contesting the Judicial Registrar’s decision.   However, that finding in the circumstances, did not militate against the grant of an extension of time .   Mr Chalmers was not aware until 23 June 1997 that he had a right of review.   In our view he could not fairly be blamed for previously failing to contest the decision or to notify the University of his intention to do so, where, ex hypothesi he was unaware of the existence of any right of review or right of appeal. 

PREJUDICE TO THE RESPONDENT

1. It is well established that the mere absence of prejudice to the respondent will not favour an extension of time and we agree with his Honour’s conclusion in that regard.

MERITS OF THE APPLICATION

1. We agree with the observations of the Full Court of the Industrial Relations Court in Coyne v Ansett Transport Industries ( unreported, 24 September 1996) where it was pointed out:

   In the context of an application for extension of time heard separately from the substantive application a Court, if it is to take any account at all of the prospects of success, can necessarily never come to a concluded view as to the merits of the substantive application…

   … The Court when dealing separately with an application for extension of time is usually confined to untested assertions, often of only one party, and must take an approach similar to that adopted in granting or refusing interlocutory injunctions.   If the merits have been considered by a Judicial Registrar or other authority whose opinion is entitled to respect, it is open to the Court to have regard to the conclusion then reached as an aid in forming its own impression of the merits.

2. In the present case the primary Judge considered the merits of the application to be a neutral factor, notwithstanding the University’s reliance on the Judicial Registrar’s conclusion that the application was always “doomed to fail”.   His Honour does appear to have considered the University’s submission that the matter was clear cut, based on the Judicial Registrar’s decision.   However he was unable, in the time available, to conclude that Mr Chalmers was bound to fail.

3. We do not think that his Honour’s approach in this respect was erroneous.   While the Judicial Registrar’s view of the merits of the application was entitled to be, and apparently was, accorded some weight, it was not conclusive.   An applicant has a right  to a hearing de novo of a Judicial Registrar’s decision.   The Court may come to a different view to that of the Judicial Registrar in respect of the same evidence or the applicant may adduce additional evidence which warrants a departure from the conclusion reached on more limited evidence in the first hearing. We therefore consider that where there are merely untested assertions concerning the correctness of a Judicial Registrar’s decision,  to regard the merits as neutral will not be in error, provided that the fact of the Judicial Registrar’s decision and the evidence on which it was based have not been overlooked.

FAIRNESS AS BETWEEN OTHERS IN LIKE POSITIONS

1. His Honour considered that the grant of an extension of time to Mr Chalmers could be construed as encouraging dilatory behaviour by applicants for review and their legal representatives.   Given our conclusion above that Mr Chalmers was not guilty of inexcusable dilatory behaviour, we do not agree that encouragement of the kind indicated at first instance would be involved in the grant of an extension of time.

CONCLUSION

1. In our view the learned primary Judge erred in concluding that Mr Chalmers did not have an acceptable explanation for the delay in filing his application for a review.   That error was referable to what we have identified as findings of fact that were not open.  It therefore falls to this Court to exercise the discretion itself. For the reasons given earlier in this judgment, we consider that the time for bringing the application for review should be extended.  We therefore allow the appeal, set aside the order dated 11 August 1997, extend time within which Mr Chalmers may seek a review of the Judicial Registrar’s decision, and remit Mr Chalmers’ application for that review to be heard de novo by a single Judge.

OBSERVATIONS CONCERNING HARRIS v CALADINE

1. During the hearing of this matter we raised with counsel for the University, albeit somewhat obliquely, the principle in Harris v Caladine (1991) 172 CLR 84. This principle requires the exercise of the powers and functions of a court officer to whom jurisdiction has been delegated pursuant to statute to be subject to review or appeal before a Judge on questions of both fact and law. It was suggested to Counsel in the course of argument on the appeal that to refuse an application for an extension of time to review a Judicial Registrar’s decision may be to deny an applicant’s constitutional entitlement to have federal judicial power exercised by a Judge.

2. We have subsequently considered the High Court’s decision in Harrington v Lowe (1997) 190 CLR 311. The High Court held in Harringtonv Lowe that O. 36 r. 5 (2) of the Family Law Rules, which fixed a time limit of 7 days for an applicant to the Court to review the exercise of power of a Registrar, was valid, as the Court could extend the prescription of seven days or dispense with the requirements of any of the Rules (190 CLR 311 at 321). In our view the High Court’s reasoning is equally applicable here, as this Court may extend the prescribed period of 21 days. The Court therefore retains “effective supervision and control over the exercise of its function by its officers” (Harris v Caladine 172 CLR 84 at 122). Accordingly, we have concluded that the need to obtain an extension of time within which to review a Judicial Registrar’s decision did not render unconstitutional the conferral of jurisdiction on a Judicial Registrar.

I certify that this and the preceding nineteen eighteen (198) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Olney and North

Associate:

Dated:             # 23 September 1998

Counsel for the Applicant:	Applicant appeared in person
Counsel for the Respondent:	D. Chan
Solicitor for the Respondent:	Arthur Robinson & Hedderwicks
Date of Hearing:	26 March 1998
Date of Judgment:	#23 September 1998