Kamel LEBEIDI T/A Sugar Gum Restaurant v Napoli

[2001] WASCA 30

JURISDICTION     :   WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION:   KAMEL LEBEIDI T/A SUGAR GUM RESTAURANT -v- NAPOLI [2001] WASCA 30

CORAM:   KENNEDY J  (Presiding Judge)

SCOTT J
PARKER J

HEARD:   1 FEBRUARY 2001

DELIVERED          :   1 FEBRUARY 2001

PUBLISHED           :  13 FEBRUARY 2001

FILE NO/S:   IAC 9 of 1999

BETWEEN:   KAMEL LEBEIDI T/A SUGAR GUM RESTAURANT

Appellant

AND

REBECCA AIMY NAPOLI
Respondent

Catchwords:

Industrial law - Appeal to Full Bench from Commissioner's finding of unfair dismissal - No appearance before Full Bench by or on behalf of the appellant - Appeal to the Full Bench dismissed - Appeal to Industrial Appeal Court against dismissal of appeal - No question of law - Appeal to Industrial Appeal Court dismissed

Legislation:

Industrial Relations Act 1979, s 90(1)

Result:

Appeal dismissed as being incompetent

Representation:

Counsel:

Appellant:     In person

Respondent:     Ms K A Williams

Solicitors:

Appellant:     In person

Respondent:     Gibson & Gibson

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

Barker v Wilson (1901) 27 VLR 36

Hoskins v Van Den-Braak (1998) 43 NSWLR 290

Case(s) also cited:

Western Australian Builders Labourers Painters and Plasterers Union of Workers v Clark (1996) 40 AILR 13-063

1. JUDGMENT OF THE COURT:  On 1 February 2001, the Court dismissed this appeal on the ground that the decision appealed from was neither erroneous in law nor in excess of jurisdiction.  The following are the reasons of the Court for arriving at this conclusion.

2. On 8 February 1999, Commissioner A R Beech found that the appellant had unfairly dismissed the respondent and he ordered that the appellant forthwith pay to the respondent the sum of $2,902.68.  By a notice filed on 25 February 1999, the appellant appealed against the decision of the Commissioner on the ground that he had been denied natural justice for the reason that his case had not been better presented with the help of a lawyer.  He sought an order that the decision of the Commissioner be quashed "and rehearing of witnesses".  The notice of appeal showed the respondent's address as Sugar Gum Restaurant, 105 Terrace Road, Guildford 6055.

3. The appeal was called on for hearing before the Full Bench of the Industrial Relations Commission on 1 September 1999.  There being no appearance by or on behalf of the appellant, the President adjourned the appeal for a short time to enable the appellant to be called outside the door of the court and to have his Associate ascertain whether the appellant was in the vicinity of the hearing room.  When the hearing was resumed, there was still no appearance by the appellant.  The President indicated that a check had been made on two other floors of the building in order to see whether the appellant might, in error, have gone to those floors, but that there had been no sighting of him.  The President, in the circumstances, having observed that notice of the hearing had been duly given to the appellant, no doubt by giving notice by post to the address given by him in his notice of appeal, Sugar Gum Restaurant, 105 Terrace Road, Guildford 6055, invited counsel who appeared for the respondent to move for the dismissal of the appeal, as well as for the dismissal of the appellant's applications to extend time for filing an appeal and for extending the time for making an application to extend time for filing an appeal book.  Counsel moved accordingly, and those orders were made.

4. On 20 September 1999, the appellant filed a notice of appeal to this Court from the decision of the Full Bench.  The notice gave the appellant's address as Sugar Gum Restaurant, c/- 3A Harry Way, Willetton.  The grounds of the appeal were that the appellant had failed to receive notice to attend the hearing of the Full Bench because his address had changed due to the loss of his restaurant, and medical factors, and that the Full Bench, in dismissing the appeal without giving him the right to be heard, had denied him natural justice.  In his affidavit filed in support of his appeal to this Court, the appellant deposed that he had changed his address in June 2000.  He continued:  "I think I did give notice but I can't be sure as I was in and out of hospital, but I did give my new address to the Commission and to the Supreme Court of Appeal".  The affidavit concluded:  "I'm still suffering from depression.  I can't recall if I did give notice or not."  June 2000 was long after the dismissal by the Full Bench of the appellant's appeal.  From what the President said in dismissing the appeal, the notice of hearing had been duly served, in that the notice must have been posted to the address of the appellant in the Commission's records.

5. An appeal court is entitled to dismiss an appeal if the appellant does not make an appearance.  It has no duty to make further inquiries - see Barker v Wilson (1901) 27 VLR 36, at 38. By s 12 of the Industrial Relations Act, the Industrial Relations Commission is constituted a court of record and the Full Bench, for the present purposes, is constituted as a court of appeal.

6. In the circumstances, the Full Bench was entirely justified in making the orders which it did. It is abundantly clear that it did not commit any error of law, or exceed its jurisdiction in so doing. The only grounds upon which an appeal lies to this Court are that the decision appealed from is erroneous in law or is in excess of jurisdiction - see s 90(1) of the Act. The appeal was therefore incompetent, and this Court had no jurisdiction to hear it. It had accordingly to be dismissed.

7. We would add that, in an appropriate case, an appellant whose appeal has been struck out on the ground of his non-appearance, provided that his non‑appearance was due to no fault on his part and that no injustice to other parties would be involved, may have a remedy.  In those circumstances, the appellate court may set aside the order of dismissal - see Hoskins v Van Den-Braak (1998) 43 NSWLR 290, per Mason P at 293 ‑ 295, and the cases there cited.

8. Although, as we have indicated, in an appropriate case, a remedy may be available to the appellant, we should not be understood as indicating that any application by the appellant to the Full Bench at this stage has any prospects of success.  It is the obligation of every party to proceedings to notify the tribunal or the court in which those proceedings are being maintained of any change of address.  A great deal of time has now elapsed since the order was made by Commissioner Beech.  Furthermore, the grounds of appeal to the Full Bench, on their face, would appear to be of no substance.