Coyne v Ansett Transport Industries

[1996] IRCA 449

DECISION NO: 449/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - CLAIM of UNLAWFUL TERMINATION - TIME LIMITATION - DISCRETION to extend time - APPEAL against exercise of DISCRETION - PRINCIPLES to apply on APPEAL - EVIDENTIARY considerations on INTERLOCUTORY APPLICATION to extend time

Industrial Relations Act 1988 (Cth): ss 170DE(2), 170EA,

Convention Concerning Termination of Employment at the Initiative of the Employer: Article 8.3

Brodie-Hanns v MTV Publishing Limited (Industrial Relations Court of Australia, 31 October 1995, unreported)

House v The King (1936) 55 CLR 499

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Lucic v Nolan (1982) 45 ALR 411

Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412

Victoria v The Commonwealth (Industrial Relations Court of Australia, 4 September 1996, unreported).

Wyndham Lodge Nursing Home Inc v Reader (Industrial Relations Court of Australia, 15 April 1996, unreported)

ROGER COYNE v ANSETT TRANSPORT INDUSTRIES

WI 1203 of 1996

CORAM:  WILCOX CJ, RYAN AND MADGWICK J
PLACE:    SYDNEY
DATE:     24 SEPTEMBER 1996

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

No. WI 1203 of 1996

Appeal against a judgment of a single Judge of the
Industrial Relations Court of Australia

BETWEEN  ROGER COYNE

Appellant

AND  ANSETT TRANSPORT INDUSTRIES
  Respondent

CORAM:  WILCOX CJ, RYAN AND MADGWICK JJ
PLACE:    SYDNEY
DATE:     24 SEPTEMBER 1996

MINUTES OF ORDER

The Court orders that the appeal be dismissed.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

No. WI 1203 of 1996

Appeal against a judgment of a single Judge of the
Industrial Relations Court of Australia

BETWEEN  ROGER COYNE

Appellant

AND  ANSETT TRANSPORT INDUSTRIES
  Respondent

CORAM:  WILCOX CJ, RYAN AND MADGWICK JJ
PLACE:    SYDNEY
DATE:     24 SEPTEMBER 1996

REASONS FOR JUDGMENT

THE COURT: This is an appeal against a judgment of a single Judge of the Court which overturned on review a decision of a Judicial Registrar to grant to the applicant, who is the present appellant, an extension of time within which to bring an application under s.170EA of the Act. The appellant's employment by the respondent was terminated with effect from 20 February 1995. On 11 August 1995 he filed his application in the Western Australian District Registry of the Court and, on the same day, sought an extension of time within which to bring the application.

At the time of the termination, the appellant was assisted and represented by a Mr Hammond, an officer of his union, the Australian Services Union ("ASU").  On 21 April 1995, Mr Hammond wrote to Mr Coyne a letter in the form of a record of events surrounding the termination addressed "TO WHOM IT MAY CONCERN".  That letter implies an acceptance by Mr Hammond that no challenge could be mounted against the appellant's dismissal.  This is consistent with the oral evidence of the appellant that he was so advised by Mr Hammond at the time of termination.

The appellant sought advice from a firm of solicitors on 21 April 1995 and, on 25 April 1995 wrote to that firm enclosing a copy of Mr Hammond's letter of 21 April 1995 and requesting the solicitors' "assessment of the likely success of this action and associated costs prior to any commencement".  We infer from the wording of the letter that there had already been contact between the appellant and the solicitors involving a reference to an action against the former employer Ansett Transport Industries ("Ansett").  On 1 May 1995, the solicitors wrote to the appellant requesting him to "make an appointment ... to provide a comprehensive proof of evidence prior to the provision of an opinion on the likely success of an action against Ansett".  The evidence does not disclose when such appointment was made.

On 23 June 1995, the appellant's solicitors provided him with a written opinion which, we infer, made no reference to the existence of a time limit.  On 28 July 1995, the appellant put his solicitors in funds to institute an application under the Act.  However it was apparently not until 3 August 1995 that he was advised of the existence of a time limit.

On 7 November 1995 the Judicial Registrar granted an extension to 11 August 1995 of the time within which the application might be brought.  On the next day, the Judicial Registrar heard the appellant's application on the merits and reserved her decision.  On 27 November 1995 the respondent sought a review of the decision to extend time and, on 22 December 1995, the Judicial Registrar made an order, on the merits of the substantive application, reinstating the appellant and requiring payment to him of compensation for lost remuneration.

The learned primary Judge analysed the facts which we have already recounted and concluded that "the blame for two of those five months of delay can be laid at the feet of the applicant" for delaying in seeking legal advice.  The other three months of delay his Honour held to be referable to the appellant's solicitors.

His Honour then referred to a judgment of Wilcox J in the Federal Court of Australia in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 saying:

However, as Wilcox J made clear in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 351, a delay by a solicitor although not necessarily to be treated as the direct delay of a client is not necessarily a sufficient basis to excuse the delay in bringing an application. Given the initial delay in the applicant's raising the matter of his termination of employment with his solicitors, it is my view that such inertia would not have enlivened the solicitors to the urgency of the matter. Therefore, some blame should be visited upon the applicant for the slow reaction of his solicitors.

Reference was then made to Ansett's position. In that context, the learned primary Judge said:

OTHER ACTION TAKEN BY THE APPLICANT

At no time until the receipt of the application filed on 11 August 1995 was Ansett put under notice that the decision to terminate the applicant's employment was actively contested.  Another issue regarding access to concessional travel benefits was pursued in late April 1995 by his union with Ansett. However, that was the only issue pursued. It was an issue which had been pursued by the applicant prior to the termination of his employment. This factor also supports Ansett's position.

PREJUDICE TO THE RESPONDENT

Ansett has employed a replacement employee.  The delay in the filing of the application will have the potential to prejudice Ansett especially if a reinstatement order is under active consideration at the conclusion of the review.  Adverse consequences may arise for the replacement employee. This factor also supports Ansett's position in the context of the application to extend time.  Of course, such a matter would not defeat an otherwise appropriate case for reinstatement in an application brought within time or where time is extended due to other factors.

Reference was also made in similar vein to the uncontradicted evidence from Ansett's Human Resources Manager to the effect that "the significant delay in filing the application meant that I did not, and still do not, have a clear recollection of many facts which were in dispute between the parties".

On the question of the merits of the application, his Honour said:

The merits of the application were not canvassed in determining this preliminary issue.  This is a neutral consideration.  The Court on the review cannot assume the correctness of the Judicial Registrar's decision on the merits when its correctness is disputed in a re-hearing.

After expressing the view that, should the application for extension of time be granted, it would encourage "dilatory behaviour in applicants" under s. 170EA, reference was made to the policy implicit in the requirement in Art. 8.3 of the Convention Concerning Termination of Employment at the Initiative of the Employer that rights to appeal against termination must be exercised "within a reasonable time after termination", his Honour then reached this conclusion:

Given that:-

.        there is no acceptable explanation for the delay in instituting the proceeding;

.        no action was taken to put the termination in contest prior to the application being lodged;

.        prejudice arises to Ansett as a result of its employment of a replacement employee; and

.        considerations of fairness as between the applicant and other persons in a like position militate against the granting of the extension of time to the applicant,

the Court refuses to exercise its discretion in favour of the applicant under s170EA(3)(b) of the Act. I do not believe that it would be fair or equitable in the circumstances of this case to extend the time within which the applicant may make his application.

This is an appeal against the exercise of a discretion which attracts the application of the principles enunciated by the High Court in House v The King (1936) 55 CLR 499 where it was observed in the joint judgment of 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.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

The learned primary Judge set out the following principles which he had distilled in an earlier judgment of his own in Brodie-Hanns v MTV Publishing Limited (unreported 31 October 1995) as applicable to the exercise of the discretion to extend time under s. 170EA(3)(b) of the Act:

1.      Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended.  The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to extend.

2.      Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

3.      Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

4.      The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

5.      The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

6.      Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.

That is an unexceptionable statement of the relevant principles (see eg,. Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412 at 414-415). It remains only to consider whether there was any misapprehension by his Honour of any of the facts which he was required to evaluate in applying those principles.

Mr Segler of Counsel for the appellant was inclined to contest his Honour's conclusion that the "blame" for the first two months of delay from the date of termination could be imputed to the appellant.  He argued that the appellant may be taken to have relied on the erroneous advice given to him by Mr Hammond of the ASU that no remedy was available against Ansett.  That is true but that advice was given on 20 February 1995 immediately after the termination.  There is nothing to indicate what prompted the appellant, more than two months later, to seek a second opinion from his solicitors unless it was Ansett's refusal on 10 April 1995 to extend to him the benefit of concessional travel.

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

Mr Segler also took issue with his Honour's remark quoted above that "the merits of the application were not canvassed in determining this preliminary issue".  We were referred to the transcript of the hearing below where this exchange is recorded as having occurred between his Honour and Counsel for the appellant:

HIS HONOUR:    In the circumstances where I am looking at this as an up front issue, how could the merits be anything other than neutral, particularly in the context of this being a review where it is a complete re-hearing and I am instructed by a Full Court which in part overturned me, which is the first time that has ever happened, and hopefully the last.  I am instructed by that Full Court to say that I should not have regard to what has happened;  that is the reasoning process or the conclusions of the Judicial Registrar, that this is a hearing afresh notwithstanding that there is some agreement as to what the evidence is, including by reference to evidence given before the Judicial Registrar on matters that do not raise issues of credibility and having regard to the Wyndham Lodge and Reader case, an unreported Full Court decision of 15 April.  So, on the basis of that, how can ground 5 be anything other than neutral, seeing as I have not heard the merits?

MR SEGLER:      No, you have not of course.  From the materials that you are aware of, you would be aware of the nature of the case and it is a case based upon termination allegedly for incapacity.

HIS HONOUR:    Yes, but I cannot make any conclusive findings in isolation on that matter when I am determining a preliminary jurisdiction point.

MR SEGLER:      No, and I do not invite your Honour to do so, but just simply to have regard to the nature of the substantive application because there are some applications that may be - - -

HIS HONOUR:    Would inherently probably be doomed to fail.

MR SEGLER:      Yes.

HIS HONOUR:    This cannot be one of them.

MR SEGLER:      Yes, if I could put it this way, this was always an arguable case, your Honour.

The judgment of the Full Court in Wyndham Lodge Nursing Home Inc v Reader (unreported 15 April 1996) to which his Honour referred in that exchange concerned difficulties which had arisen from the election of the parties to conduct a review as a re-hearing but relying on the transcript of the evidence before the Judicial Registrar instead of calling the witnesses anew before the Judge.  It was of those difficulties that the Full Court was speaking when it observed at p. 12:

Determination of a dispute about primary facts involves choosing between conflicting elements of the evidence.  This almost always involves an assessment of the witnesses, not only as to their truthfulness but also as their characters and personalities and the likelihood that they acted in a particular way.  Without seeing and hearing the witnesses, a Judge has no basis for substituting his or her opinion on such matters for that of the Judicial Registrar.  The Judge will be bound to hold that the party who bears the onus of proof on the disputed issue has failed to discharge that onus.

Those observations were not directed to the quite different matter of evidentiary considerations which may arise on an interlocutory application like the present. 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.  Thus, in Lucic v Nolan (1982) 45 ALR 411, Fitzgerald J observed, at 417:

Whilst there are obvious reasons why there should be no attempt at a full investigation of the merits of the application for review on an application for an extension of time, I would not exclude from consideration in an appropriate case some obvious strength or weakness in an applicant's case or matters which might justify the refusal of relief, if the Court has a discretion to do so where a ground for relief is made out.

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.  This is not because the conclusion is necessarily correct;  on considering the issue for itself (if time is extended) the Court may take a different view of the merits.  But the conclusion is some evidence that the claim has substance.

Accordingly, if when he characterized the merits of the application as "neutral", his Honour meant that because he was not then determining the substantive application, he should not give any weight in the exercise of his discretion to a provisional assessment of the merits, he was in error.  On that assumption, we shall proceed to consider for ourselves how the discretion should be exercised.

We have already indicated our agreement with the learned primary Judge's approach to the other matters relevant to the discretion to extend time. In the light of the Judicial Registrar's conclusion in favour of the appellant, it would normally have been appropriate to proceed on the basis that he had a better than even chance of success on a review of the merits. However, the Judicial Registrar's conclusion was founded on s. 170DE(2) of the Act, she taking the view that the termination of the appellant's employment was in the circumstances harsh, unjust or unreasonable. Since her decision the High Court has held s. 170DE(2) is invalid: see Victoria v The Commonwealth (unreported 4 September 1996). On our assessment of the merits of the appellant's case in the light of that development and viewing all of the other relevant factors against the background of the policy implicit in the imposition of the strict time limit adopted by s. 170EA, we would exercise the discretion in the same way as the learned primary Judge. The appeal must therefore be dismissed.

I certify that this and the preceding 9 pages are a true copy of the Reasons for Judgment of the Court.

Associate:

Date:

APPEARANCES

Counsel for the Appellant:              Mr M.L. Segler

Solicitors for the Appellant:            E.N. Stamatiou & Co

Counsel for the Respondent:          Mr F. Parry

Solicitors for the Respondent:        Freehill Hollingdale & Page

Date of Hearing:  3 September 1996

Date of Judgment:  24 September 1996

I certify that this and the preceding 10 pages are a true copy of the Reasons for Judgment of the Court.

Associate:  

Dated:       24 September 1996

APPEARANCES

Counsel for the Applicant:      

Solicitor for the Applicant:      

Counsel for the Respondent:   

Solicitor for the Respondent:  

Date of hearing: