Cousins v YMCA of Perth - [2001] WASCA 374

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION: COUSINS -v- YMCA OF PERTH [2001] WASCA 374

CORAM: KENNEDY J (Presiding Judge)
SCOTT J
PARKER J

HEARD: 1 DECEMBER 2000

DELIVERED : 28 NOVEMBER 2001

FILE NO/S: IAC 6 of 2000

BETWEEN: MICHAEL COUSINS
Appellant
AND
YMCA OF PERTH
Respondent

Catchwords:

Industrial Relations (WA) - Unfair dismissal - Application for extension of time to appeal against refusal of Commissioner to reinstate appellant in employment - Decision of Commissioner depending upon assessment of credibility of witnesses - Refusal of Full Bench to extend time - Whether discretion of Full Bench miscarried

Legislation:

Industrial Relations Act 1979 (WA), s 23A, s 83

Minimum Conditions of Employment Act 1993 (WA), s 5(1), s 7(c)

Workplace Relations Act 1996 (Cth), s 177A, s 179

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr M Richardson (as agent)
Respondent: Mr A J Randles

Solicitors:

Appellant: Mr M Richardson (as agent)
Respondent: Mr A J Randles

Case(s) referred to in judgment(s):

Abalos v Australian Postal Commission (1990) 171 CLR 167
Alexander v Australian National Airlines Commission [1988] 1 QR 331
Attorney‑General v Simpson [1901] 2 Ch 671
City of Geraldton v Cooling [2000] WASCA 364
Colson v Shire of West Pilbara (1986) 66 WAIG 1256
Devries v Australian National Railways Commission (1993) 177 CLR 472
FDR Pty Ltd v Gilmore (1996) 76 WAIG 4434
Gallo v Dawson (1990) 64 ALJR 458
Hill v Rushton Building Contractors Pty Ltd (1987) 67 WAIG 923
Jackamarra v Krakouer (1998) 195 CLR 516
Josephson v Walker (1914) 18 CLR 691
Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942
R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Ryan v Hazelby & Lester t/a Carnarvon Waste Disposals (1993) 73 WAIG 1752

Case(s) also cited:

A/asian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd (1988) 25 IR 137
Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417
Association of Professional Engineers, Scientists and Managers Australia v Skilled Engineering Pty Ltd (1994) 54 IR 236
Australasian Meat Industry Employees' Union, Industrial Union of Workers, West Australian Branch v Stewart Butchering and Co Pty Ltd (1993) 73 WAIG 1196
Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1
Australian Municipal, Transport, Energy, Water, Ports, Community and Information Services Union v Aboriginal Child Care Agency [1993] 360 IR CommA
Australian Workers' Union, Western Australian Branch, Industrial Union of Workers v Cockburn Cement Ltd (1999) 79 WAIG 1227
Bowling v General Motors-Holden's Pty Ltd (1980) 50 FLR 79
Bradford v Prentice Builders Pty Ltd (1986) 15 IR 342
Brailey v Mendex Pty Ltd (1992) 73 WAIG 26
Burazin v Blacktown City Guardian Pty Ltd, unreported; Industrial Relations Court of Aust (Full Court); No 606/96; 13 December 1996
Chapman v Rossiter (1998) 78 WAIG 4900
Coal and Allied Operations Pty Ltd v Construction, Forestry, Mining and Energy Union (1999) 94 IR 37
Coal and Allied Operations Pty Ltd v The Full Bench of the Australian Industrial Relations Commission [2000] HCA 47
Confederation of Western Australian Industry (Inc) v Western Australian Timber Industry Industrial Union of Workers (1990) 71 WAIG 19
Construction, Forestry, Mining and Energy Union v Giudice (1998) 159 ALR 1
Cooling v City of Geraldton (2000) 80 WAIG 1622
Corlett Bros Pty Ltd v Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (1975) 55 WAIG 644
Crewe and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights' Union of Western Australia (1989) 69 WAIG 2623
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
FDR Pty Ltd v Gilmore (1998) 78 WAIG 1099
Gatti v Shoosmith [1939] Ch 841
Gilmore v Cecil Bros (1996) 76 WAIG 4434
Griffiths v Malika Holdings Pty Ltd (1997) 140 FLR 353
House v The King (1936) 55 CLR 499
Jaggard v Tranby Pty Ltd t/a The Court Hotel (1996) 76 WAIG 4720
Liddell v Lembke t/a Cheryls Unisex Salon (1994) 56 IR 447
Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66
Max Winkless Pty Ltd v Bell (1986) 66 WAIG 847
McVinish v Flight West Airlines [1999] AIRC, C No 37333/1997
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Police v Western Australian Police Union of Workers (1995) 75 WAIG 1504
Monarch Petroleum NL v Citco Australia Petroleum Ltd, unreported; SCt of WA (Master Seaman); Library No 6015; 16 August 1985
Newcrest Mining Ltd v Australian Workers' Union, Western Australian Branch, Industrial Union of Workers (1992) 73 WAIG 26
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 37 IR 50
Norbis v Norbis (1986) 161 CLR 513
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
PMT Partners Pty Ltd (In Liq) v Australian National Parks & Wildlife Service (1995) 69 ALJR 829
Portius Pty Ltd v Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (1990) 71 WAIG 19
RGC Mineral Sands Ltd v Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers' Union of Australia WA Branch [2000] WASCA 162
Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11
Roc Mineral Sands Ltd v Construction Mining Energy Timberyards Sawmills Woodworkers' Union of Australia, WA Branch (2000) 80 WAIG 2437
Rosemist Holdings Pty Ltd v Khoury (1999) 79 WAIG 645
Tip Top Bakeries v Transport Workers' Union (1994) 74 WAIG 1189
Tranchita v Wavemaster International Pty Ltd (1999) 79 WAIG 1886
Van Stillevoldt (CM) BV v El Carriers Inc [1983] 1 WLR 207
Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201

KENNEDY J (Presiding Judge): Pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA), by an application dated 7 April 1999, the appellant referred to the Industrial Relations Commission a claim that he had been unfairly dismissed from his employment by the respondent. In his application, he gave the nature of the respondent's business as "Managing sport & rec centres" and the nature of his own work as "Duty manager of Morley Sport & Rec Centre & Alma Venville Rec Centre". He described his main duties as "Duty manager - Responsible for the operations of the centres after hours (Monday ‑ Friday 4.30 pm onwards & weekends)" and "Administration - Help run the centres during normal hours". He gave his type of employment as "casual". He replied in the negative to the question of whether his employment was bound by any award or registered agreement. The appellant sought reinstatement in addition to "(1) Back pay from termination at $290.81 a week; (2) promised pay increase which was to come into place within a couple of weeks of employment. I am seeking this from time of engagement." It is noted that the wage of $290.81 per week was the average of the wages paid to the appellant each week over 32 weeks, which appears to have been the period of his employment. The appellant's claim for the promised pay increase was later abandoned.
The appellant's application came on for hearing before Commissioner C B Parks. The hearing was conducted over six days, during which, as the Commissioner indicated, "numerous witnesses were called", and "the total evidence before the Commission both oral and documentary was extensive". An unusual feature of the hearing was that Mr M Richardson, who appeared as agent for the appellant, called the great majority of the witnesses who would normally have been expected to have been called by the respondent, being employees of the respondent whose evidence was generally unfavourable to the appellant. Mr Richardson subsequently sought to impeach their evidence.
The learned Commissioner noted that the respondent is a Christian association which conducts a number of operations in the metropolitan area. Two establishments, the Alma Venville Centre, located in Maylands, and the Morley Sports and Recreational Centre, located in Morley, were the places at which the appellant worked for the respondent, principally as a "Duty Manager", but he also on occasions performed duties of a lesser nature. He was designated a "casual" employee. The events that led to the termination of the employment relationship, the respondent claimed, stemmed from a restructuring of the respondent's business so far as it related to each of the centres mentioned. The appellant challenged the respondent's claim that there was any such restructuring as had been alleged.
The Commissioner found that Mr Peter Bauchop, the Recreations Operations Manager for the respondent, Ms Lana Leslie, the Health Club Manager at the Alma Venville Centre and the appellant were the persons whose evidence was material in determining whether a dismissal had occurred. Mr Bauchop and Ms Leslie were amongst those called to give evidence on behalf of the appellant.
Mr Bauchop gave evidence in relation to the appellant's contract of employment, the circumstances in which the parties parted company, the organisation of the restructuring, and details of the staff employed by the respondent. According to Mr Bauchop, once the Duty Managers, including the appellant, had been informed of the restructuring, he had notified other sporting organisations of the proposed new positions. He had also held a meeting with the Duty Managers, during which he explained to them the details of the new positions and the impact they would have on the respondent's operations. He stated in his evidence that "everybody was clearly on notice that, if they wanted to protect their interests, they needed to apply for one of the two newly created 'permanent' positions with the respondent". The appellant elected not to lodge an application for either of the two available positions.
Ms Leslie said she was present at the meeting when the respondent's employment relationship with the appellant was terminated. The Commissioner indicated that her evidence provided him with an overview of the restructuring which had taken place within the respondent's operations, and in particular in the Centre that she managed. Ms Leslie told the Commissioner that, at the conclusion of the meeting, Mr Cousins was requested to return his keys and uniform, and she and Mr Bauchop accompanied the appellant to the outer doors of the premises to make sure he departed.
The Commissioner accepted that, on the day the employment relationship terminated, Ms Leslie and Mr Bauchop had told the appellant that he was not being dismissed, but rather that he was not being placed in the roster for future work. The Commissioner found that the appellant, upon hearing this explanation, drew the correct conclusion, namely, that his services were no longer required. He waited 20 days before lodging his application with the Industrial Relations Commission, during which time he was not afforded any further work.
One of the major issues which arose was whether the appellant was a casual employee. Notwithstanding his own description of the nature of his employment in his application, the learned Commissioner found that he was not a casual employee, but that he was an employee with an ongoing obligation to the respondent. He went on to hold that the appellant's dismissal had been unfair, essentially, it would seem, because no performance issues had been raised with the appellant at the time of his dismissal.
The learned Commissioner then turned to the question of reinstatement. He said:
"The goal of the respondent was to restructure its operations in such a way that there was a devolution of duties and responsibilities from office administration staff to two new permanent positions, that of a weekday Duty Manager, and that of a weekend Duty Manager, each of whom would be responsible for the organising and supervision of the employees designated casual Duty Managers. The intention of the respondent was that the hours to be worked by the future appointees to the new positions would be such that the hours of work usually covered by the casual Duty Managers was likely to reduce. However, the respondent was prepared to fix the hours of work for each of the new positions upon a consideration of the applicants viewed as potential appointees and their availability to undertake the hours of work. Hence, until such time as the respondent had decided whom it was they would appoint in each of the new permanent positions and fixed the hours and shifts those persons were to work, and the selected persons accepted the positions according to how they were finally tailored, and the commencement dates for the new positions were finalised, there was no reason to seek a variation of, or the termination of, the contract of employment with the [appellant]. What effectively was conveyed to the Duty Managers on behalf of the respondent was that there was to be a 'spill' of their so‑called casual positions and their future employment depended upon what outcome there was in relation to the proposed new positions."
The Commissioner found that the appellant had "actively agitated employment related complaints, and in relation to the proposed restructure", and he was satisfied that this had alienated Mr Bauchop and was of some influence in relation to the decision that was made. He went on to point out that it was then almost 12 months since the appellant had been dismissed, and it was his view that the appellant's reinstatement in employment was impracticable, both by reason of the restructuring which had been implemented by the respondent, and by reason of his not being satisfied that a reasonable working relationship was able to be established.
The Commissioner then considered a claim by the appellant, which was not to be found in his application, that by reason of his eligibility to be a member of the Australian Municipal Administrative Clerical and Services Union, his employment relationship with the respondent was governed by the Social and Community Services Industry - Community Services Workers - Western Australia Award 1996, which is a Federal Award made by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth). To this was added a claim, in the alternative, under the Minimum Conditions of Employment Act 1993 (WA). These claims had all the hallmarks of afterthoughts.
For the appellant, it was contended that s 23A(1)(a) of the Industrial Relations Act gives the Commission the power in a claim of harsh, oppressive or unfair dismissal to order the payment to the claimant of any amount to which the claimant is entitled. The Commissioner said, however, that there was a paucity of argument for the appellant with regard to the application of the Federal Award, and he added that no "valid attempt" had been made to prove the existence of the appellant's eligibility to be a member of the union, nor any attempt to prove his classification and salary level within the Federal Award which, he claimed, governed his employment. The Commissioner, in the circumstances, held that he was unable to determine whether the Federal Award applied to the employment relationship; but, in any event, to the extent that the claim of the appellant sought the recovery of entitlements allegedly due by the operation of the Federal Award, s 179 of the Workplace Relations Act required that the applicant sue in the Federal Court or in a court of competent jurisdiction. The expression "court of competent jurisdiction" is defined in s 177A of that Act as a District, County or Local Court or a magistrate's court. The Western Australian Industrial Commission does not come within the definition of a court of competent jurisdiction.
The Commissioner continued:
"Were it that the Commission found that the Federal Award had applied to the former employment relationship, and the weekly wage to which the [appellant] was entitled were also established, the coverage of the Federal Award would have ceased upon the dismissal and no entitlement under the Federal Award continued to accrue. Hence the payment of wages which the [appellant] claims beyond the dismissal is not a plea for the recovery of an entitlement but one for compensation on account of a loss, and the assessment of that loss is to be made upon what was the wage of the [appellant] whether that be pursuant to the contract of employment, an award of this Commission or the Federal Award.
However, given that the [appellant] has failed to establish that he had been bound by the Federal Award an assessment of compensation cannot be made with regard to the Federal Award."
The learned Commissioner then went on to consider the alternative claim. He said:
"In the alternative the [appellant] claims to have entitlements which are his due by reason of the Minimum Conditions of Employment Act 1993 (the MCE Act) and such are entitlements that the Commission ought award him pursuant to s 23A of the [Industrial Arbitration Act]. The claims made under this limb are each for an enforcement of the MCE Act, which enforcement, if it be in relation to a provision of the MCE Act that is implied in a contract of service as appears to be the basis of the claims, is pursuant to s 7 of the MCE Act required to be prosecuted under s 83 of the Act ie before an industrial magistrate's court. Hence I find that such claims fall outside the jurisdiction of the Commission (see Chapman v Rossiter (78 WAIG 4900))."
The Commissioner next proceeded to consider the appellant's claim for compensation, having already held that the reinstatement of the appellant was impracticable, which is a precondition to an award of compensation. The Commissioner was satisfied that the appellant had suffered a loss exceeding the maximum amount which the Commission may award under s 23A(4) of the Industrial Arbitration Act, being six months' remuneration, and he fixed the compensation accordingly. It amounted to the sum of $7561.
The order for the payment of compensation was made on 3 March 2000. On 24 March 2000, which was the last day for instituting the appeal, the respondent filed a notice of appeal to the Full Bench of the Industrial Relations Commission, seeking to set aside the Commissioner's findings that the appellant had not been a casual worker and that he had been unfairly dismissed by the respondent.
On 4 April 2000, the appellant filed two notices of application, the first seeking an extension of time to lodge an application for an extension of time to lodge an appeal [sic] against the decision of the Commissioner, and the second seeking an extension of time to lodge an appeal against the decision of the Commissioner. The grounds for the applications are almost identical, being, in essence, that although the appellant had not been successful in his application for reinstatement or re‑employment, he had reluctantly accepted the decision of the Commission because he had not wished to bear the expense and stress associated with an appeal. However, the respondent having instituted an appeal against the decision, it was claimed, the appellant would now have to bear the expense and stress of an appeal, and he therefore desired to appeal, by way of cross‑appeal, against the Commissioner's decision. No affidavit was filed in support of his applications.
On the same day that the two applications for extension of time had been filed, the appellant had also filed a notice of appeal. It is to be observed that the Industrial Relations Act does not make any provision for cross‑appeals as such. In particular, there is no provision equivalent to O 63 r 9 of the Supreme Court Rules, which allows a period of 21 days after the service of the notice of appeal for the respondent to file a cross‑appeal.
The two applications and the "appeal" came on for hearing before the Full Bench of the Commission. At the commencement of the hearing, the President inquired of the appellant's agent, Mr Richardson, whether he said that the appeal had "chances of success". He responded, "Yes, very much so in that." The learned President then asked Mr Richardson why, briefly, he said that, and he added, "without going into your grounds in detail, of course".

Mr Richardson then responded:
"[O]n the reinstatement issue which the Commissioner erred in his discretion in not considering any of the authorities properly, and in brief, it was quite clear that there was no restructure at all in terms of the work that the appellant had been doing and would have gone back to do, that it's done in exactly the same way, and the evidence clearly shows that. And that was the ground the Commissioner gave for – in his very short comments on the – on his decision. He found that it was impractical … because there has been a restructure, without saying more."
Mr Richardson then dealt briefly with the alternative claims made by the appellant under s 23A(1)(a) of the Industrial Relations Act for payment to the appellant of the amounts to which he claimed to be entitled under the Social and Community Services Industry - Community Services Workers - Western Australian Award 1996, or under the Minimum Conditions of Employment Act, each of which has its own mechanism for the recovery of amounts claimed under it - see s 179 and s 177A of the Workplace Relations Act and s 7 of the Minimum Conditions of Employment Act.
It is not clear whether the Full Bench had before it the full transcript of evidence presented to the single Commissioner, although the appeal book prepared on behalf of the appellant did refer to pages of the transcript containing evidence which was thought to be favourable to the appellant. It was properly conceded by the respondent that the length of the delay on the part of the appellant was negligible, and that it had not thereby suffered any great prejudice.
At the conclusion of a brief hearing, the Full Bench announced its decision and dismissed the applications. It also dismissed the "appeal", no doubt on the ground that, in the circumstances, it was incompetent. The reasons for decision of the members of the Full Bench were published later.
In his reasons, the learned President expressed his opinion that, on the submissions made on behalf of the appellant, there was an argument, because the decision of the Commissioner at first instance "was based upon credibility of evidence, or said to be, that reinstatement may have been not impracticable". Whether it was a strong argument, his Honour said, he was not able to say. As to the other submissions made by the appellant, he indicated he would need to be persuaded, but he was not, that the Commissioner had erred in holding that a benefit payable by reason of the Federal Award was recoverable under s 23A of the Industrial Relations Act, or that, whilst there was an argument that the Commissioner was in error, it was a strong argument. The Commissioner had not, in fact, held that the benefit payable under the Federal Award was recoverable under s 23A. Furthermore, the President said he would need to be persuaded that there was merit in the submission that a claim for entitlement under the Minimum Conditions of Employment Act was a claim within the jurisdiction of the Commission. He said that, having regard to s 46 of that Act, he was not at that time persuaded that this was a strong argument sustainable on appeal. Nevertheless he accepted that the delay had not been substantial and, in many cases, would not be a bar. As to the argument said to be based on s 46, the respondent rightly accepted that the section had no application, it being concerned only with offences relating to the keeping of employment records and relating to access to employment records.
Mr Richardson, his Honour noted, had informed the Full Bench "with proper and refreshing frankness" that, in fact, the appeal was lodged only because the respondent had appealed and that, otherwise, the appellant had been satisfied with the order of the Commission. From this, his Honour said, it followed that this was the reason for the delay in the appellants lodging the appeal.
What Mr Richardson said was, in fact, as indicated in the notice of appeal, that is to say, that whilst the appellant had not been happy with the decision of the Commissioner at first instance, by reason of the expense and disruption involved in his appealing, he had decided to accept the decision. He added that when, on the twenty‑first day after the decision, the respondent had instituted an appeal, the reason for the appellant's decision not to appeal had fallen away, and he had then determined that he would seek to appeal.
The delay was a mere 11 days, although the learned President drew attention to the fact that both parties had been tardy in pursuing their appeals. The President then went on to suggest that the appellant would not be placed at a disadvantage if his application failed, because he would retain the orders made by the Commissioner if the respondent's appeal failed, and he would, in any event, be able to oppose the appeal by defending the orders made in his favour. He added that, for the respondent, there was no detriment in allowing the application, save and except that it faced an appeal that the appellant had not intended to bring because he was satisfied with the order at first instance. These comments, however, ignored the added benefits which the appellant would gain if he were to be successful in his proposed appeal.
The President indicated that he had considered the prospect of the appellant's proposed appeal being successful, but that he was "not unequivocally able to say that the prospect of succeeding on appeal is a real one on the submissions put", and he added that the reasons for the delay were cogently against granting the application, with the resultant prospective detriment to the respondent. He was not satisfied that the justice of the matter, on the authorities to which he referred, required that the appellant's applications to extend time should be granted, in particular, because it appeared that the appellant was attempting to use a cross‑appeal as a tactical weapon, "having decided otherwise that he was satisfied with the order made".
Chief Commissioner W S Coleman agreed with the President that the appellant's applications should be dismissed. He did not purport to adopt the President's reasons. The learned Chief Commissioner said:
"More particular to the application for an extension of time is consideration of whether there was a real prospect of the appellant succeeding in the substantive appeal. In this respect the claim for reinstatement appears to be the only ground upon which some semblance of an arguable case may have been mounted. However, this to a significant extent was dependent upon overturning the Commission's findings based on credibility. In my view nothing was put which showed that there was a real prospect of succeeding given the evidence before the Commission in the first instance.
I am unable to conclude that on the material before the Full Bench that rejection of the applications would constitute an injustice."
Commissioner S J Kenner, who expressed himself to be in general agreement with the President's reasons, went on to add:
"Until such time as the respondent lodged its appeal, the agent for the appellant quite candidly admitted that the appellant was content with the fruits of his litigation and submitted to the Full Bench that he had no prior intention to appeal against the decision at first instance."
As to the merits, he said:
"I was not persuaded on the materials before the Full Bench that the appeal would have any reasonable prospect of success. There was, as correctly conceded by the agent for the appellant, evidence before the Commission at first instance as to the impracticability of reinstatement. However, the submission was that there was an issue as to the credibility of such evidence. The appellant faces a substantial hurdle in this regard on appeal and I was not persuaded that there was an arguable case on this ground.
In Jackamarra v Krakouer (1998) 195 CLR 516, the High Court heard an appeal from the Full Court of the Supreme Court of Western Australia in which the Full Court had dismissed an appeal for want of prosecution, an application for an extension of time within which to enter the appeal for hearing having been dismissed, principally on the basis that the appeal lacked any real prospect of success. The Full Court did not have before it a transcript of the evidence or of the exhibits tendered at the trial.
The facts in Jackamarra v Krakouer (supra) differed from those in the present case for, as Brennan CJ and McHugh J pointed out at 520, to grant an application for an extension of time within which to lodge an appeal is to put at risk a vested right of the respondent. When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, an even more liberal approach is justified. The Court is then dealing with a pure procedural question, that is to say, should time be extended? The merits of the appeal do not furnish the criterion for granting or refusing such an extension.
Brennan CJ and McHugh J, at 519, cited a passage in the judgment of Lord Denning MR in R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087, a case in which an extension of time was being sought for lodging an appeal. His Lordship said, at 1091:
"We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time."
The present case, as in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 947, is concerned with an application which seeks to put at risk the substantive rights of the respondent, notwithstanding that the respondent is itself appealing. As Brennan CJ and McHugh J pointed out, it is understandable that where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success.
Their Honours continued at 521 ‑ 522:
"[9] One reason that an appellate court does not go into 'much detail on the merits' in considering whether the time for an appeal should be extended is because ordinarily it only has 'limited materials and argument'. Unless motions to extend time for appeals are to turn into full rehearsals for those appeals, appellate courts can only assess 'the merits' in a fairly rough and ready way. In most cases, that assessment will be made from the statement of the applicant's case rather than from the opposing arguments or any detailed examination of the proofs of the argument. The merits are merely one of the factors that must be considered in determining whether the discretion to extend time should be exercised… The court needs to remind itself also that the parties do not expect to argue the merits issue as elaborately as if they were arguing the appeal itself.
[10] It is one thing to conclude that counsel's statement of the appeal argument contains the ground for its rejection. It is another matter altogether to hold that, although the logic of the argument is impeccable, the appeal has no merits because the applicant has not taken the Court to the detail of the evidence, the statutes or the case law. Given the practice in hearing applications for extension of time, the rules of procedural fairness require that an appellate court should not determine the application on the details of the evidence (if they have been provided) or the lack thereof unless counsel has been given fair notice that the court intends to take that course."
The last sentence is of particular relevance in the present case.
In Gallo v Dawson (1990) 64 ALJR 458, McHugh J said, at 459, in relation to an extension of time for appealing from a single Justice under the High Court Rules:
"The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard 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 for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194‑195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263‑264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice."
There is, in my opinion, a significant problem in the decision of the Full Bench in the present matter. It arises from an apparent failure to appreciate the distinction between the principles governing the granting of an extension of time for complying with a particular rule of procedure, of which Jackamarra v Krakouer (supra) is an example, and the seeking of an extension of time for appealing against a judgment, of which Gallo v Dawson(supra) is an example. The present case falls into the latter category.
As was emphasised by McHugh J in Gallo v Dawson (supra), the discretion to extend time is given for the sole purpose of enabling the Court (or, in this case, the Industrial Relations Commission) to do justice between the parties, and the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon him. One of the relevant factors relates to what the consequences will be of the grant or refusal of the application for an extension of time. Another relevant factor for granting an extension of time is that the proposed appeal has some prospects of success, whilst conceding, as Brennan CJ and McHugh J said in Jackamarra v Krakouer, that an appellate court can only assess the merits in a fairly rough and ready way, because otherwise the court would have to conduct a full rehearsal for the appeal.
It is quite apparent that the learned Commissioner's conclusion that the reinstatement of the appellant was impracticable was arrived at in consequence of his finding that there had been a restructuring which had been implemented by the respondent, and by reason of his not being satisfied that a reasonable working relationship was able to be established between the appellant and staff members of the respondent. As previously noted, he found that the appellant had "actively agitated employment related complaints", and in relation to the proposed restructuring, the Commissioner was satisfied that Mr Bauchop had been alienated by the appellant.
It was conceded for the appellant that the reversal of the Commissioner's finding that the reinstatement of the appellant was impracticable could only be achieved by overturning his findings of fact based upon the credibility of the witnesses. It was claimed on the appellant's behalf, however, that if the evidence was examined in detail, it would clearly show that the respondent's officers and witnesses were not telling the truth. Having now examined the considerable amount of material placed before us, I am not persuaded that any basis has been shown for interfering with the Commissioner's findings which clearly were based upon his conclusions as to the credibility of the witnesses.
As Kirby J said in Jackamarra v Krakouer (supra) at 543:
"Of course, if the decision of the primary judge turned on the credibility of the evidence of witnesses called at the trial, the difficulties of disturbing conclusions based upon such findings are well known."
His Honour cited Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472. Gummow and Hayne JJ, at 531, citing the same two authorities, also referred to the difficulty of the task of attacking the findings which the primary Judge has made about the effect of oral evidence which he has heard, as being "notorious".
In cases turning on disputed evidence, such as in the present case, it is only too common for there to be conflicts in the evidence presented. Some of the conflicting evidence may arise out of lapses in memory and innocent errors in recollection, particularly when those errors relate to peripheral issues, of which many were raised in this case, and upon which Mr Richardson placed particular stress. Some of the conflicting evidence may arise from deliberate lies. It is the difficult, but very necessary, duty of Judges and Commissioners at first instance to arrive at what they believe to be the facts of the matter. Furthermore, it is always open to a Judge or a Commissioner to believe part of what a witness has said in the witness box and to reject another part of that evidence. The Judge or Commissioner who has seen and heard the witnesses is almost invariably going to be in a much better position than is an appellate court or tribunal to assess accurately their credibility. I am not persuaded that Commissioner Parks failed to use the advantage which he had.
I turn now to the grounds of appeal, all of which purport to be based upon errors of law. It is unnecessary for the present purposes to characterise the diverse grounds as either errors of fact or of law.

(1) The Full Bench erred in law in not taking cognisance of the legal signification of a cross‑appeal.

The Industrial Relations Act makes no provision for a cross‑appeal as such. If a party desires to appeal, that party must institute the appeal within 21 days of the date of the decision against which the appeal is brought (s 49(3)). By s 27(1)(n) of the Act, the Commission (as to which see the definition of "Full Bench" in s 7) is empowered to extend any "prescribed time". Section 5 of the Interpretation Act 1984 (WA) defines the expression "prescribed", to mean, for the purposes of this case, a time prescribed by the Industrial Relations Act. Furthermore, the appeal is to be heard and determined on the evidence and matters raised in the proceedings before the Commission (s 49(4)).
The fact that the respondent had filed its appeal on the twenty‑first day after the decision was handed down is no doubt a factor which can be taken into account in determining whether or not to grant an extension of time. In FDR Pty Ltd v Gilmore (1996) 76 WAIG 4434, the Full Bench granted an extension of time in such a situation. However, as the learned President pointed out in that case, at 4447, the granting of an extension of time is not automatic, and each case turns upon its particular facts. The discretion is conferred for the sole purpose of enabling the court to do justice between the parties and it is always necessary to consider the prospects of success of the applicant. See also Ryan v Hazelby & Lester t/a Carnarvon Waste Disposals (1993) 73 WAIG 1752.
An argument was advanced on behalf of the appellant that, by s 49(5)(b) of the Industrial Relations Act, in the exercise of its jurisdiction, the Full Bench has the power to vary the decision in such manner as it considers appropriate. Thus, it was claimed, even if there were no formal notice of "cross‑appeal", the "cross‑appellant" has the right to argue its case at the hearing of the appeal, and the Full Bench is empowered to vary the decision in favour of the "cross‑appellant". Expressed in the terms in which it was, the submission, if correct, would obviate the necessity for having to file a "cross‑appeal" in order to attack a decision. For this proposition, Attorney‑General v Simpson [1901] 2 Ch 671 was relied upon. However, it was a very different case from that which is before us. By an Act, 6 Geo I, ch 29, passed in 1720, powers were conferred on a predecessor of the defendant to construct a "stanch" in a river below St Ives (at which point it was a public navigable river) and to repair and maintain the same, but no obligation was in terms imposed upon him. The Act contained a recital that the making, maintaining, and repairing of the "stanch" would necessarily be a great charge and expense to the grantee, his heirs and assigns, and it was enacted that it should be lawful for the grantee, his heirs and assigns, from and after the repairing or erecting the stanch, from time to time and at all times, to demand and take for all goods which should be carried by boat or other vessel up or down that part of the river the tolls in the Act specified. It was held by Farwell J that the public were entitled to pass through the locks without paying a toll, and through the stanch on payment of the statutory toll, and that the defendant was not liable to maintain or work any of the locks or the stanch. The defendant appealed from the judgment, other than the latter part of the declaration. The plaintiffs gave no notice of cross‑appeal. The Court of Appeal while allowing the appeal to the extent of declaring that the defendant was entitled to a reasonable toll for the passage of boats through the locks, exercised its power under O LVIII r 4 of the English rules, to vary the judgment in favour of the plaintiffs by declaring that the defendant was bound to maintain and work both the locks and the stanch, and the judgment was varied accordingly. These two aspects of the case were closely bound up together.

Section 49(5) of the Industrial Relations Act provides:
"In the exercise of its jurisdiction under this section the Full Bench may, by order ‑
(a)dismiss the appeal;
(b)uphold the appeal and quash the decision or, subject to sub‑section (6), vary it in such manner as the Full Bench considers appropriate…"
Section 49(6) which is not presently relevant, provides that, where the Full Bench varies a decision under s 49(5)(b), the decision so varied shall be in terms which could have been awarded by the Commission that gave the decision. On the face of it, s 49(5)(b) can only operate when an appeal is upheld. If the respondent's appeal should ultimately be upheld, the consequence will be that the appellant's application under s 23A of the Industrial Relations Act will be dismissed, and there will be no scope for any variation of the original decision.
If the appellant's argument is correct, should leave to extend the time for instituting his appeal be refused, it would not matter, because he could simply resort to the provisions of s 49(6). That would be an absurd result, which cannot be accepted.
The first ground of appeal cannot succeed.

(2) The Full Bench erred in law in finding that the appellant was satisfied with the order of the Commission.

The appellant filed no affidavit in relation to his satisfaction or otherwise with respect to the order of the Commission. Mr Richardson merely informed the Full Bench that the appellant, "while not happy with the decision of the Commission in the first instance, decided to accept the remedies that the Commission had awarded, or ordered, because of the expense and disruption involved in appealing". The only member of the Full Bench to use the word "satisfied" was the President. The relevant passage in his Honour's reasons has been set out above. Chief Commissioner Coleman said:
"The appellant was forthcoming in declaring the reason for lodging the substantive appeal. This, in essence, provided the explanation for the delay. The respondent had not appealed until the expiry of the statutory period. Although accepting the decision of the Commission in the first instance, it was the appeal by the respondent against the determination of unfair dismissal and the relief granted that prompted the applicant (sic) to appeal against the failure to gain reinstatement in employment and to pursue the failure to have secured payments under a Federal Award and the Minimum Conditions of Employment Act. In the absence of the respondent's appeal those matters were not going to be pursued."
Commissioner Kenner said:
"The reason for the notice of appeal being brought out of time was, on the appellant's submissions, because the respondent to this appeal had itself lodged an appeal against the Commissioner's decision finding in favour of the appellant at first instance and awarding compensation for the unfair dismissal and not reinstatement. Until such time as the respondent lodged its appeal, the agent for the appellant quite candidly admitted that the appellant was content with the fruits of his litigation and submitted to the Full Bench that he had no prior intention to appeal against the decision at first instance."
It is apparent, therefore, that this ground of appeal is based upon a misunderstanding of the reasons of the Full Bench. The point being made by the majority of the Full Bench was quite clearly that the appellant had made a considered decision not to appeal against the orders made in his favour by the Full Bench. It was in this sense that the appellant "accepted the decision" or "was content with the fruits of his litigation". The appeal and the proposed appeal raised quite discrete issues.
It must be stressed that the fact that a member of the Full Bench expresses his or her "general" agreement with the reasons of another member is not an indication that every observation in those reasons has been adopted. This is especially the case where the member expressing his or her general agreement with another member's reasons then proceeds to set out in summary form, as did Commissioner Kenner, his own reasons for joining in the ultimate decision. Even if this ground of appeal were to be upheld, it would not, in my opinion, be determinative of the appeal, having regard to what I consider to be the low prospect of the proposed appeal being successful. I would reject this ground.

(3) The Full Bench erred in law in finding that the appellant would not have pursued the failure to have secured payments under a Federal Award that covered his employment and the Minimum Conditions of Employment Act

The decision of the Commissioner at first instance was that the Industrial Relations Commission did not have jurisdiction to order the payment of any amounts due to the appellant under the Federal Award or the Minimum Conditions of Employment Act.
The Full Bench did not make the finding complained of by the appellant in this ground. The wording comes from the reasons for judgment of the Chief Commissioner in a passage which I have set out above. The comment was addressed to the decision of the appellant to seek an extension of time for appealing only after the respondent had filed its notice of appeal. The reference to the matters not going to be pursued was only intended, in my view, to indicate that they were not going to be pursued in the Industrial Relations Commission.
Section 179(1) of the Act, which is to be found in Div 1 of Pt VIII of the Workplace Relations Act, provides that where an employer is required by an award to pay an amount to an employee, the employee may, not later than six years after the employer was required to make the payment to the employee under the award, sue for the amount of the payment in the Court or in any court of competent jurisdiction. As previously noted, "Court" is defined in s 4 of the Act to mean the Federal Court of Australia, whilst s 177A, for the purposes of Div 1 of Pt VIII, defines "court of competent jurisdiction" to mean a District, County or Local Court or a magistrate's court. On the face of it, the Western Australian Industrial Relations Commission has conferred upon it no jurisdiction to enforce Federal Awards.
Mr Richardson relied upon two decisions of Commissioner Fielding in support of his argument that the Western Australian Industrial Relations Commission had jurisdiction to hear and determine the appellant's claim for entitlements under the Federal Award. Those decisions were Colson v Shire of West Pilbara (1986) 66 WAIG 1256 and Hill v Rushton Building Contractors Pty Ltd (1987) 67 WAIG 923. It is important to observe that s 123 of the Commonwealth Conciliation and Arbitration Act 1904, at the time of both those decisions, conferred jurisdiction in this area upon the Federal Court and "any other court of competent jurisdiction" without, in the latter case, defining a court of competent jurisdiction. This is in stark contrast to s 177A of the Workplace Relations Act which now defines the expression in precise terms. The decision of the Full Court in Queensland in Alexander v Australian National Airlines Commission [1988] 1 QR 331, in which reliance was placed upon Josephson v Walker (1914) 18 CLR 691 at 695, is readily distinguishable for the same reason. It is not necessary, in the circumstances, to answer this jurisdictional point.
I also leave open the question of whether, under s 23A(1)(a) of the Industrial Relations Act, a claim for the payment to the claimant of any amount to which the claimant is entitled, but which is unrelated to his or her dismissal, is capable of being a State law providing protection for an employee against harsh, unjust or unreasonable termination (however described in the law) under s 152(1A) of the Workplace Relations Act and consequently within the jurisdiction of the Industrial Relations Commission. That was not an issue which was argued before us.
It is not necessary to answer the two questions just posed for the reason that, in any event, as the Commissioner at first instance observed, there was a paucity of argument from the appellant with regard to the application of the Federal Award. As he indicated, there had been no valid attempt made to prove the appellant's eligibility. Nor had there been any attempt to prove the classification and salary level within the Federal Award that was alleged to have applied to the appellant, and the Commission was not able, on the evidence, to determine whether the award applied. The appellant has failed to establish any amount to which he is entitled under the Federal Award.
The claim under the Minimum Conditions of Employment Act was an alternative claim to that made under the Federal Award. No particulars of this claim were provided to us, and we are not in a position to evaluate whether there is any substance in it. Furthermore, the appellant faces another jurisdictional hurdle. In relation to any entitlement of the appellant under the Minimum Conditions of Employment Act, by s 5(1), minimum conditions of employment extend to, and bind, all employees and employers, and they are taken to be implied in any workplace agreement, in any award or, if a contract of employment is not governed by a workplace agreement or an award, in that contract. By s 7(c), a minimum condition of employment may be enforced where the condition is implied in an award, under Pt III of the Industrial Relations Act, or where it is implied in a contract of employment under s 83 of the Industrial Relations Act, as if it were a provision of an award, industrial agreement or order (other than an order made under s 32 or s 66 of that Act. Section 83 of the Industrial Relations Act, which is to be found in Pt III, provides in s 83(1)(a) that an application for the enforcement of an award, industrial agreement or order, shall not be made otherwise than to an Industrial Magistrate's Court.

(4) The Full Bench erred in law in finding that the appellant was using the cross‑appeal as a tactical weapon and as a result the justice of the matter did not require that an extension of time be granted

Only the President referred to the appellant as having used the cross‑appeal as a tactical weapon. The Chief Commissioner did not adopt the reasons of the President but based his decision upon his view that the appellant did not have a "real prospect of succeeding given the evidence before the Commission in the first instance". He added that he was unable to conclude that, on the material before the Full Bench, the rejection of the applications would constitute an injustice.
Commissioner Kenner, who merely expressed himself to be "in general agreement" with the President's reasons, went on to make some observations of his own, which effectively summarised his reasons for dismissing the applications. They contained no reference to the appellant's pursuing an appeal as a tactical weapon. His conclusion on the merits was that he was not persuaded that the appeal would have any reasonable prospect of success, the practicability of reinstatement turning upon the credibility of the relevant witnesses. Nor was Commissioner Kenner persuaded that there was an arguable case open to the appellant in relation to his claims under the Federal Award and the Minimum Conditions of Employment Act.
It is further to be observed that the President's reference to the appellant's cross‑appeal as a tactical weapon came after his statement that he was not satisfied that the justice of the matter, on the authorities referred to by him, required that the applications to extend time should be granted for all the reasons which he had given.
There is, in my opinion, no merit in this ground.

(5) The Full Bench erred in law in finding that the reasons for the delay were cogently against granting an extension of time

This "finding" is only to be found in a paragraph in the President's reasons which dealt with the prospects of the appeal. His Honour said, "I am not unequivocally able to say that the prospect of succeeding on appeal is a real one on the submissions put and the reasons for delay are cogently against granting the application, with the resultant prospective detriment to the respondent, which I have described above". His Honour then went on to say that he was not satisfied that the justice of the matter, on the authorities referred to by him, required that the applications to extend time be granted, for all of the reasons which he had given. He added that equity, good conscience and the substantial merits of the case and the consideration of the interests of the parties pursuant to s 26(1)(a) and (c) of the Industrial Relations Act, lay with the making of the orders which the Full Bench had already made.
The Chief Commissioner and Commissioner Kenner each summarised his reasons as I have already set out. Each of them made reference to the decision of the appellant not to appeal until the respondent instituted its appeal; but each then proceeded to deal with the merits of the case. Neither was satisfied that the appellant had a reasonable prospect of success or an arguable case. Neither took up the President's argument regarding the respondent's delay. As with the previous ground of appeal, the alleged finding of the President cannot be attributed to the other members of the Full Bench.

(6) The Full Bench erred in law in not following the principle in FDR Pty Ltd v Gilmore (supra)

This ground of appeal has already been discussed. FDR Pty Ltd v Gilmore did not lay down some principle which should be followed. The Full Bench was required to exercise its discretion taking into account all the relevant factors. In this case, the significant factors to emerge from the reasons of the individual members of the Full Bench were the limited prospects of a successful appeal and the conclusion that to refuse the application would not constitute an injustice. There is no substance in this ground of appeal.

(7) The Full Bench erred in law in finding that there was detriment to the respondent in that the appellant was bringing an appeal that he did not intend to bring because he was satisfied with the order

The comment that there was "resultant prospective detriment" to the respondent was made by the President. The detriment is referred to in a single sentence where his Honour says that, "For the respondent, there is no detriment in allowing the application, save and except that it faces an appeal that the appellant did not intend to bring because he was satisfied with the order". In its context, this does not appear to me to be a matter upon which the President placed a great deal of weight, and it was not an issue which was taken up by either of the other Commissioners. There really could be little detriment to the respondent, having regard to the fact that it had already instituted an appeal and to its concession that it had not suffered any great prejudice.
I am unable to accept that the views expressed in this matter by the President constituted a finding by the Full Bench.

(8) The Full Bench erred in law in finding that the appellant would not be at a disadvantage if the application for an extension of time failed

The passage upon which this ground of appeal is based appears in the reasons of the President in a passage which I have previously discussed. For the appellant it was argued that he would lose his right to persuade the Full Bench to exercise its discretion to order reinstatement. Counsel for the respondent, however, citing City of Geraldton v Cooling [2000] WASCA 364, argued that, if the appellant's appeal seeking reinstatement were to be successful, then, if the respondent is minded to pay compensation, rather than reinstate the appellant, it cannot be compelled to reinstate him.
Under s 23A(1)(b) of the Industrial Relations Act, the Commission may order the employer to reinstate or re‑employ a claimant who has been harshly, oppressively or unfairly dismissed. Subsection (1)(ba) provides that, subject to subs (1a) and subs (4) the Commission may order the employer to pay compensation to the claimant for loss or injury caused by the dismissal. By subs (1a), which was substituted for the previous subs (1a) in 1997, the Commission is prohibited from making an order under subs (1)(ba) unless either it is satisfied that reinstatement or re‑employment of the claimant is impracticable or the employer has agreed to pay the compensation instead of reinstating or re‑employing the claimant. It is to be noted that the "agreement" is that of the employer. The section does not refer to an agreement between the employer and the claimant. Furthermore, by subs (3), if an employer fails to comply with an order under subs (1)(b) the Commission may, upon further application, revoke that order and, subject to subs (4), make an order for the payment of compensation for loss or injury caused by the dismissal. Subsection (4) provides that the amount ordered to be paid under subs (1)(ba) or (3) is not to exceed six months' remuneration of the claimant. As was said by the Minister for Labour Relations in his second reading speech in the Legislative Assembly on 2 March 1997, as a result of the amendments made to s 23A "employers can now decide whether they wish to compensate employees for loss or injury caused by the dismissal instead of reinstatement or re‑employment".
In the course of the hearing before us, counsel for the respondent informed the Court that it has always been the respondent's position in the case that reinstatement is impracticable and that it is something which the respondent does not want. It is therefore prepared to pay compensation if the decision should go against it.
From a practical point of view, it is pointless for the appellant to pursue his claim for reinstatement.

(9) The Full Bench erred in law in not granting an extension of time when it found that there was an arguable case

In two passages in his reasons, the learned President referred to a "strong argument" and later said that, having considered the prospect of the appeal succeeding, he was not "unequivocally" able to say that the prospect of succeeding on appeal was a real one on the submissions put.
Chief Commissioner Coleman, in contradistinction to the President, referred to the appropriate test as being whether there was a real prospect of the appellant succeeding in the substantive appeal. He concluded that nothing which had been put to the Full Bench showed that there was a real prospect of the appellant succeeding in the substantive appeal. He indicated that the claim for reinstatement appeared to be the only ground upon which some semblance of an arguable case might have been mounted, but he added that, to a significant extent, it was dependent upon overturning the Commission's findings based on credibility.
Commissioner Kenner referred to the test as being whether the appeal would have any reasonable prospect of success and he said he was not persuaded that there was an arguable case on the question of reinstatement or in relation to the claimed entitlements.
It is quite erroneous to claim, as Mr Richardson did, that a recognition that the appellant had to overturn the Commissioner's findings based on credibility to succeed in the cross‑appeal was itself recognition that there was an arguable case in respect of the impracticability of reinstatement. The use of the word "arguable" in this context is to be treated with some caution. As McHugh and Hayne JJ said in Jackamarra v Krakouer at 527 [31]:
"Both parties submitted that the test which the Court should apply before taking either of those steps [to strike out the appeal for want of prosecution or considering whether to grant an extension of time for the taking of the procedural steps necessary to make an appeal ready for hearing] was whether the appeal is 'arguable' or 'fairly arguable'. That apparent agreement may mask more than it reveals; much turns on what is meant by 'arguable' or 'fairly arguable'."

At 529 [35] their Honours continued:
"The parties submitted here that the Full Court should have decided whether the appeal was 'arguable'. It is important to understand what is meant in this context by 'arguable'. If it means no more than that counsel, acting responsibly, can formulate an argument which can properly be advanced in support of the appeal, the test is too loose; if it is clear that that argument will fail, the appeal should not proceed. To permit it to proceed is to subject the respondent to the many costs of litigation."
In my opinion, although there may be some inconsistency in the tests referred to by the President, in my opinion, the other members of the Full Bench applied an appropriate test. I would reject this ground of appeal.

(10) The Full Bench erred in law in finding that the cross‑appeal had no prospect of success without examining all of the evidence

There was no obligation upon the Full Bench to examine all of the evidence before the Commissioner at first instance. To do so would have been to determine the appeal itself.
The usual approach to a consideration of the prospects for success of a proposed appeal is set out above in par [9] and par [10] in the joint judgment of Brennan CJ and McHugh J in Jackamarra v Krakouer. An appellate court does not normally go into much detail on the merits and there was no requirement for the Full Bench to go into all the evidence; but where it fell into error, in my opinion, was in discouraging Mr Richardson from dealing with the proposed grounds of appeal. In the circumstances, Mr Richardson did not attempt to argue the merits of the case, and he said only that the Commissioner had not properly considered any of the authorities, and that he had found that it was impracticable to reinstate the appellant because there had been a restructuring which precluded his reinstatement. Mr Richardson omitted to point out to the Full Bench that the Commissioner had also found that reinstatement was impracticable because he was not satisfied that a reasonable working relationship was able to be established between the parties. He made only a fleeting reference to the alternative claim for the payment to the appellant of amounts to which he maintained he was entitled. I do not consider that in this respect the Full Bench complied with the rules of procedural fairness referred to by Brennan CJ and McHugh J in Jackamarra v Krakouer at 522[10].
Mr Richardson, conceded in this Court that a major part of the appellant's case was that the "respondent's witnesses" had not told the truth. The great majority of the "respondent's witnesses", however, as already noted, were called by the appellant himself. The credibility of the witnesses was at all times of critical importance. Clearly, however, the learned Commissioner on the issue of reinstatement rejected the evidence of the appellant and accepted the evidence of the employees of the respondent.
Before this Court, Mr Richardson went into considerable detail with respect to the evidence which supported the appellant's case, and he provided us with 139 pages of written submissions. A consideration of the evidence available to us has convinced me that there was ample evidence to support the conclusion of Commissioner Parks that, by the time the matter had come on for hearing before him, reinstatement was impracticable, both by reason of the restructuring in the operations of the appellant which had taken place and by reason of a working relationship between the appellant and the respondent being unable to be restored.
Commissioner Parks indicated in his reasons that he had regard to all of the evidence but that, for the purposes of his reasons, he referred only to those aspects of the evidence which he considered to be relevant to the central issues which had been raised.
The evidence of Mr Bauchop was that the restructuring undertaken by the respondent did not amount merely to a change in the titles of the respondent's employees. The appointments to the positions of Senior Duty Managers were intended to result in a restructuring of the working rosters, with a reduction in the need for what were described as "casual staff" and consequently a reduction in their number. The Senior Duty Managers were intended to work the majority of the evenings with a team of Assistant Duty Managers working the balance of the evenings, in addition to supporting the Senior Duty Managers by making sure that all of the required procedures were being followed. The aim of the respondent was to establish the best possible team of the more experienced duty managers under the new appointees in order to resolve problems which the respondent had been experiencing.
Ms C H Hoesle was appointed as one of the new Senior Duty Managers. She had spoken to the appellant about the planned changes. She found him to be very frustrated and annoyed and said that he had made all sorts of accusations to her. On the other hand, there was evidence of complaints having been made regarding the appellant's behaviour in relation to derogatory remarks which he had made when he addressed women, a matter concerning which Ms V Stamelos had spoken to him. Mr N P Marshall, another employee of the respondent, spoke of the appellant as having been rude to, and harassed, his mother when he was trying to contact Mr Marshall concerning a dispute regarding conditions of employment. Mr Marshall claimed that the majority of the other members of staff disliked the appellant. Having regard to the way he went about his work, they believed he was hindering them a lot and bothering them. He was described as rubbing people up the wrong way. Mr Marshall also claimed that he had seen the appellant rummaging through Mr Bauchop's files in his office, a claim which the appellant denied.
Ms Leslie and Mr Bauchop gave evidence regarding the meeting at which the appellant was informed that he would not be placed on the roster for future work. The appellant was said to have been frustrated and annoyed with them. Mr Bauchop was insulted by the appellant for the majority of the time. He described the appellant as being full of rage. The appellant told Mr Bauchop that he was weak, and he made very harsh and cutting comments. Mr Bauchop, on the other hand, claimed that the appellant had previously been very negative, continually asking about an increase in pay and wanting shifts that suited him.
Mr V Rettura, an officer of the City of Bayswater who had been seconded to the Morley Recreation Centre, criticised the appellant for having barred his way into his office at the centre on two occasions and for being abrupt and quite rude towards him and also for "barging" into his office and disturbing an interview he was conducting with clients. He also complained of continuing criticism of himself and others by the appellant.
The Commissioner made no specific findings on the foregoing evidence of Mr Bauchop and the respondent's other employees, but on that evidence it was clearly open to the Commissioner to conclude, as he did, that a reasonable working relationship was most unlikely to be established in the future between the appellant on the one hand and Mr Bauchop and the respondent's other employees on the other. No reasons of any substance were advanced on behalf of the appellant as to why his evidence should have been preferred to that of the respondent's employees and of Mr Rettura.
Under this ground of appeal, the appellant also claimed that Commissioner Parks should have ordered the respondent to pay costs, on the ground that the respondent had treated both the appellant and the Commissioner with arrogance and contempt, that it had failed to discover and produce all of the relevant documents in its possession and that its officers and witnesses had deliberately lied in the Commission on matters material to the determination of the application for remedies pursuant to an unfair dismissal. Section 27(1)(c) of the Industrial Relations Act empowers the Commission to award costs. However, it is only in special circumstances that costs will be ordered to be paid by a party. In this case, Commissioner Parks did not find that the respondent's officers and witnesses had lied and no basis has been shown for departing from the normal rule. In any event, counsel for the respondent indicated that, although some mention of costs had been made in the course of the hearing, no application for costs had actually been made to Commissioner Parks in that regard. Mr Richardson did not challenge this statement. No basis has been demonstrated for any departure by the Commissioner from the normal practice that costs should not generally be awarded in this jurisdiction.

(11) The Full Bench erred in law in not properly applying the principles in Esther Investments Pty Ltd v Markalinga Pty Ltd (supra) in deciding whether an extension of time should be granted

Esther Investments Pty Ltd v Markalinga Pty Ltd was not a case in which an extension of time for instituting an appeal had been sought. The learned President set out the principles to be derived from Gallo v Dawson, which is the leading authority on the principles to be applied in relation to the granting of extensions of time for instituting appeals, and I have referred in these reasons to the assistance to be derived from the decision in Jackamarra v Krakouer in this respect. Having reviewed the evidence upon which the appellant has relied I am not persuaded that the strength of the proposed appeal is such as to warrant an extension of time.

(12) The Full Bench erred in law in applying the wrong principles in deciding whether an extension of time should be granted

This ground has been sufficiently covered under the preceding proposed grounds of appeal and it is unnecessary for me further to expand upon them.
For the foregoing reasons, I would dismiss this appeal.

SCOTT J: In this matter I have had the opportunity of reading in draft the reasons to be published by the Presiding Judge. I generally agree with his Honour's reasons and the conclusion that the appeal should be dismissed. In particular I endorse the view that it was unfortunate that the Full Bench did not give counsel for the appellant the opportunity of at least outlining the grounds of appeal so that in the broad sense the merits of the appeal could have been evaluated.
The merits of the appeal, had the extension of time been granted, have been outlined in considerable detail in this Court and I agree with the conclusions of the Presiding Judge that the grounds of appeal have not been made out.
Whilst ordinarily in these circumstances an extension of time would be granted where, as here, the substance of the appeal is without merit, an extension of time should not be granted.
I also agree that the appeal should be dismissed.
PARKER J: I agree with the Presiding Judge, for the reasons he has published, that this appeal should be dismissed.