Concrete Tanks Australia Pty Ltd v Ivic

[1999] FCA 594

FEDERAL COURT OF AUSTRALIA

Concrete Tanks Australia Pty Ltd v Ivic [1999] FCA 594

APPEAL – Federal Court Rules – failure to file and serve notice of appeal within prescribed time – discretion to extend time

Workplace Relations Act1996 (Cth), ss 422, 469(7)
Federal Court of Australia Act 1976 (Cth), s 24
Federal Court Rules O 52 r 15(1), O 52 r 15(2)

Driclad Pty Ltd v FCT (1968) 121 CLR 45, cited
Wolcott v Davis (1984) 4 FCR 124, referred to

CONCRETE TANKS AUSTRALIA PTY LIMITED v BRANKO IVIC and OTHERS
NG 1283 of 1998

BRANSON J
SYDNEY
11 MARCH 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1283 of 1998

BETWEEN:	CONCRETE TANKS AUSTRALIA PTY LIMITED Applicant
AND:	BRANKO IVIC and OTHERS Respondent

JUDGE:	BRANSON J
DATE:	11 MARCH 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR DECISION

1. The applicant seeks an extension of time within which to file and serve a notice of appeal from a judgment of the Chief Industrial Magistrate of New South Wales, pronounced on 22 October 1998.  Today, very properly, in my view, the applicant for the extension of time has undertaken to pay the respondent's costs of the application should leave be granted.

2. The judgment pronounced by the learned Chief Industrial Magistrate was for the payment of amounts found by him to be payable by an employer to certain employees under an award made in 1990 under the Workplace Relations Act1996 (Cth) (“the WR Act”) then known as the Industrial Relations Act1988 (Cth). Although the learned Chief Industrial Magistrate delivered reasons for decision on 2 June 1997 concerning the complaints which had been filed by the respondents against their employer (the present applicant) the only order made by him on that day was to adjourn the proceedings to allow the parties to discuss the terms of the orders ultimately to be made.

3. On 22 October 1998 his Worship made final orders in the proceedings before him. The time for filing and serving a notice of appeal from his Worship's judgment ran from that day and not from 2 June of 1997. There is no appeal to this Court from the reasons for decision of another court under the WR Act, only from a judgment of a court (see s 422 of the WR Act, s 24 of the Federal Court of Australia Act 1976 (Cth); see also Driclad Pty Ltd v FCT (1968) 121 CLR 45).

4. The application for an extension of time was lodged twelve days beyond the twenty-one day period prescribed by O 52 r 15(1) of the Federal Court Rules.  The Court may, for special reasons, nonetheless give leave to the applicant to file and serve a notice of appeal (see O 52 r 15(2)).  The discretion to exercise the power given by O 52 r 15(2) may only be exercised if circumstances exist which distinguish the case from the usual run of cases in a way which justifies departure from the general rule.  Where such circumstances are found to exist, the Court nonetheless retains a discretion which is, of course, to be exercised judicially, to grant or to refuse to grant the extension of time sought.

5. No notice of appeal has in fact been filed in this case, nor has a draft of the proposed notice of appeal been placed before the Court.  However, the Executive Officer of the Industrial Relations and Safety Department of the Master Builders' Association of New South Wales (“the Executive Officer”), who is the applicant's representative on the record before this Court, by his affidavit in support of the application, has expressed the opinions that the appeal will raise important questions of law and that the judgment of the Chief Industrial Magistrate presently creates a precedent with significant impact for employers generally.

6. The basis for these opinions is not given in the affidavit.  It is not, in my view, self-evident that those opinions are well-founded.  However, I accept the submission that the applicant has identified grounds of appeal that appear to be seriously arguable.  That is, I proceed on the basis that the proposed appeal is not one demonstratively without merit, but rather one that may well have merit.  However, that is insufficient of itself to take this matter outside the usual run of cases so as to justify a departure from the ordinary rule as to the time frame within which an appeal is to be filed and served.  It will, however, be a significant matter in the exercise of the Court’s discretion.

7. The evidence put forward as to the reasons for the failure to file and serve a notice of appeal within the time frame prescribed by the Federal Court Rules is included in the Executive Officer's affidavit of 24 November 1998 in the following terms:

   “(g)The appeal was not made within the time prescribed as a result of an initial error, by myself, as to the time allowed for lodging an appeal and a subsequent error in preparing and lodging an appeal with the New South Wales Industrial Commission;

   (h)During the time period following the Magistrates order being issued I was also dealing with personal matters following the death of my mother.  My mother was the last surviving member of my family who I had personally cared for and lived with for several years.”

8. A further affidavit of the Executive Officer dated 10 March 1999 expands on the circumstances surrounding his mother's death and it also makes plain that until 19 November of 1998 the Executive Officer was acting in the belief that the appeal in this matter lay to the New South Wales Industrial Commission rather than to this Court.

9. The applicant today appears by counsel. However, until now, the applicant has been represented with respect to the application and the proposed appeal by the Executive Officer. The Executive Officer is not a legal practitioner. He is nonetheless entitled to represent the applicant before the Court on the present application (see s 469(7) of the WR Act). In doing so, however, he is in my view, expected to bring to his handling of the matter a proper knowledge and understanding of the applicable procedural rules of the Court. That is, in my view, O 52 r 15, is not to be construed as ordinarily allowing greater latitude in procedural matters to a party who chooses not to be represented by counsel or a solicitor in comparison with a party that does choose such representation.

10. In Wolcott v Davis (1984) 4 FCR 124 at 128, Muirhead J, in considering an application under O 52 r 15(2) said:

    “It is true …that the appellants themselves were not at fault and the error was entirely that of their legal representative.  That is so, but 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.”

11. The Executive Officer's evidence is that the reason that the appeal was not instituted within the prescribed time was because he made an error as to the time within which the notice of appeal was to be filed and served.  The nature of that error is not made explicit by his evidence.  However, whatever the nature of the error, I understand the Executive Officer by his affidavit evidence to say that a factor contributing to the making of the error by him was the death of his mother and the responsibilities which he assumed in the period immediately thereafter, and also a degree of confusion in his mind as to whether the proceeding before the Chief Industrial Magistrate was a proceeding in the State or Federal jurisdiction.

12. Whilst it would have been preferable for the Executive Officer to have made more explicit in his affidavit the way in which his mother's death and the consequential responsibilities assumed by him contributed to his error, I find, albeit with some hesitation, that the applicant has established that this is a case in which the Court has a discretion to grant the applicant an extension of time within which to file and serve a notice of appeal.

13. In considering whether or not an extension of time should be granted, I take into account my finding that the proposed appeal would appear to be seriously arguable.  I also take into account the fact that respondents have not identified any prejudice which would be suffered by them were an extension of time granted.  I also take into account the fact that instructions to appeal were given by the applicant itself in a timely manner, and that it was the error of its representative that allowed the prescribed time to expire.

14. Having regard to all of the circumstances of the case, I conclude that the interests of justice will be served by the grant of an extension of time sought.

15. The applicant will have leave to file and serve a notice of appeal in this matter by no later than 18 March 1999.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             6 May 1999

Counsel for the Applicant:	Mr R.M. Goot
Representatives for the Applicant:	Master Builders Association of New South Wales
Solicitor (Advocate) for the Respondent:	Mr D. Reiss
Representatives for the Respondent:	Construction, Forestry, Mining and Energy Union
Date of Hearing:	11 March 1999
Date of Judgment:	11 March 1999