James Foreman Ryan and Furneys Stockfeeds Limited

[1995] IRCA 343

IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA                    )
  )    No. NI 1120 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )
  )

BETWEEN:JAMES FOREMAN RYAN

Applicant

AND:FURNEYS STOCKFEEDS LIMITED

Respondent

CORAM:BEAZLEY J

PLACE:    SYDNEY
DATE:     2 August 1995

FURTHER REASONS FOR JUDGMENT

BEAZLEY J:      In this matter I delivered reasons for my decision in which I considered it appropriate to allow a period of 7 days from today's date to file any application for review.  Mr Mellos appears on behalf of the respondent and asks that a further period of 5 days be allowed to file any such application.  His reason for seeking the further time is that notwithstanding that the Judicial Registrar published his reasons for judgment on 14 June 1995, the solicitor with the carriage of the matter within his firm did not receive a copy of those reasons until just after the middle of July and, further, no steps had been taken to give any consideration as to whether advice would be given to the client to seek a review of the decision until such time as the court determined whether it would or would not extend the time in which to do so.

It seems to me that because of the reasons which I gave whereby I considered it was appropriate to extend the time, it is appropriate to extend the time regardless, and that the time in which that ought to be allowed to be done is not in itself the definitive matter.  I had considered that 7 days was an appropriate time, given the fact that the Judicial Registrar's decision has now been available for quite some period, however, having regard to the matters which were put to me by Mr Mellos this morning I am prepared to accede to his application that a further 5 days be allowed.  Accordingly, I propose to amend the order which I made so as to change the date from 9 August 1995 to 14 August 1995. 

I certify that this and the preceding  1  page
is a true copy of the Reasons for Judgment
of the Honourable Justice Beazley.
Associate:
Dated:     2 August 1995

CATCHWORDS

JUDICIAL REGISTRAR'S DECISION - application for review - whether time to file application for review should be extended.

Industrial Relations Act 1988(Cth): s 170EA; s 377.

Industrial Relations Court Rules : Order 74 rule 3.

Industrial Relations Act 1988

JAMES FOREMAN RYAN v FURNEYS STOCKFEEDS LIMITED
No. NI 1120 of 1994
Beazley J
2 August 1995
Sydney

IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA                    )
  )    No. NI 1120 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )
  )

BETWEEN:JAMES FOREMAN RYAN

Applicant

AND:FURNEYS STOCKFEEDS LIMITED

Respondent

CORAM:BEAZLEY J

PLACE:    SYDNEY
DATE:     2 August 1995

SHORT MINUTES OF ORDER

The Court orders that:

1. the time for filing any application for review of Judicial Registrar Patch's decision made 18 May 1995 be extended to 9 August 1995.

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

IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA  )
  )    No. NI 1120 OF 1994
NEW SOUTH WALES DISTRICT REGISTRY )
  )
GENERAL DIVISION                 )

BETWEEN:JAMES FOREMAN RYAN

Applicant

AND:FURNEYS STOCKFEEDS LIMITED

Respondent

CORAM:BEAZLEY J

PLACE:    SYDNEY
DATE:     2 August 1995

REASONS FOR JUDGMENT

BEAZLEY J:    This is an application by the respondent, Furneys Stockfeeds Limited, for an order that the time prescribed under Order 74 rule 3 of the Industrial Relations Court Rules, in which to file an application to review the judgment of Judicial Registrar Patch made on 18 May 1995, be extended to 21 days after the date upon which the judgment and written reasons for judgment are published in writing.  Order 74 rule 3 prescribes a period of 21 days for the making of an application to review the exercise of a power by a judicial registrar, "or such further time as is allowed by the Court".

The application, which was brought under s 170EA of the Industrial Relations Act 1988 (Cth) (the "Act") was heard and determined on 18 May 1995, at which time the judicial registrar delivered oral reasons for his decision. Neither party was legally represented at the hearing, the applicant appearing for himself and an officer of the respondent company appearing for the respondent.

The application for an extension of time was made on 7 June 1995, 20 days after the judicial registrar's determination.
However, on the day the matter was determined, Mr Watson, a director of the respondent made inquiries with Auscript with a view to obtaining a copy of the judgment so that the respondent could determine whether it should lodge an application for review.  Mr Watson ordered the transcript that day.  He has paid a total amount of $338.00 for the transcript, payment being made on two separate occasions, the first on 18 May 1995 and the second on 31 May 1995.  The respondent also wrote to the New South Wales District Registry on 18 May 1995, requesting that "the judgement delivered verbally today be submitted in written form for the purpose of determining grounds for an appeal".  The reference to "appeal" must be taken as a reference to a review.  Mr Watson made inquiries of the judicial registrar's associate on 1 and 5 June 1995 and on each occasion was informed that the reasons for judgment were not yet available.

At some stage after the date of the judicial registrar's determination, the respondent engaged solicitors in the matter.  On 7 June 1995, the solicitor with the carriage of the matter contacted the judicial registrar's associate and was told that until a transcript had been received from Auscript "the judgment cannot be prepared".  In his affidavit in support of the application for extension of time, the respondent's solicitor stated that he was unable to properly advise the respondent as to the merits of filing an application for review until he had had an opportunity to consider the reasons for decision.

The respondent's notice of motion was listed for hearing before me on 14 June 1995.  There was no appearance by or for the applicant at that time.  However, on 13 June 1995 the applicant had sent a letter to the court stating that he had only been served with the notice of motion on 10 June 1995 "and considering that Monday the 12 of June was a public holiday minimum preparation and the fact that I am currently unrepresented by council, I feel I may prejudice my defence of the issue listed...".  There was no dispute as to the date of service of the notice of motion. 

Having regard to the late service upon the applicant, I considered that he ought to be given the opportunity to make any further written submissions in the matter as he wished.  I made directions to that effect and ordered that the respondent serve a copy of those directions upon the applicant.  That was done.  Subsequently, on 22 June 1995, the applicant filed lengthy submissions.  Those submissions were not served upon the respondent in accordance with my directions but that was subsequently attended to by the Registrar of the court.  The respondent has not filed any submissions in reply.

I do not propose to deal with the applicant's submissions in any detail.  They comprise the applicant's statement as to why he was terminated, including the history leading up to the termination and subsequent history.  However, he did state that he believed "that the reasons for the judgment [of the judicial registrar]...were made quite clear regarding the reasons for this decision".  He again submitted that no further time be allocated to the respondent as a considerable amount of time has now passed since he was first dismissed on 24 August 1994.  In the body of the submissions, the applicant also referred to a conversation he had had with a representative of the respondent which indicated that the respondent had taken a stance that it would not pay any amount of compensation awarded to the applicant as a result of the alleged unlawful termination.  Notwithstanding these matters, it must be kept in mind that a party has a right to apply for the court to review a judicial registrar's decision: s 377, subject only to the discretionary time limits imposed by the rules.

In the present case, the respondent took immediate steps to obtain the transcript and a copy of the judgment.  Its solicitor wishes to review that material so as to properly advise the respondent in respect of an application under s 377.  The application for extension of time was itself made within 21 days, which indicates that the respondent's solicitors were aware of the time limits contained in the rules and took such steps as they considered appropriate to protect their client's interests.  In all the circumstances therefore, I am of the opinion that the time should be extended.  As the judicial registrar's reasons for decision were formally published on 14 June 1994, I consider that I should allow 7 days from today's date to file any application for review. 

I certify that this and the preceding  4  pages
are a true copy of the Reasons for Judgment
of the Honourable Justice Beazley.

Associate:

Dated:     2 August 1995

APPEARANCES

There was no appearance for applicant.

Solicitors for the Respondent:      Messrs Mallesons     Stephen Jaques

Date of hearing:  14 June 1995