Noonan v Arena Printing and Publishing Pty Limited
[1996] IRCA 363
•10 July 1996
DECISION NO: 363/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of employment - extension of time
Industrial Relations Act 1988 S170EA
CASES:
Transport Workers’ Union of Australian v National Dairies Limited, No 2 (1994) 57 IR 186
Michael Turner v KJ Truck Coff's Harbour Pty Limited IRCA, NI1246 of 1994 (10 August 1995)
Brodie Hanns v MTV Publishing Limited, IRCA, (31 October 1995)
North Coombes Pty Limited v Reece Pty Limited, IRCA, 26 April 1996
Szabo v T.T. Line and Company Limited, IRCA, 20 November 1995
Carnegie v Eastern Energy Limited, IRCA (23 February 1996)
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Mahnken v Saunders Logging Pty Ltd (1994) 57 IR 237
MICHAEL NOONAN -v- ARENA PRINTING AND PUBLISHING PTY LIMITED
No. VI-1151 of 1996
Before: Ryan JR
Place: Melbourne
Date: 10 July 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-1151 of 1996
B E T W E E N :
MICHAEL NOONAN
Applicant
AND
ARENA PRINTING & PUBLISHING P/L
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 10 July 1996
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-1151 of 1996
B E T W E E N :
MICHAEL NOONAN
Applicant
AND
ARENA PRINTING & PUBLISHING P/L
Respondent
Before: Ryan JR
Place: Melbourne
Date: 10 July 1996
REASONS FOR JUDGMENT (EX TEMPORE)
The Applicant claims unlawful termination of employment, stating in his application that:
he started work as a printer with the Respondent on 1 June 1994 and that the last day of work with the Respondent was 1 October 1995 (i.e. 16 months with the Respondent)
there was no written notice of termination
In fact there was a notice in writing which the Court finds was a written notice of termination. It is Exhibit R1 and it is dated 10 October 1995, some nine days after the termination.
The Court has agreed to deal, at this stage - that is, after hearing evidence from the Applicant - with a preliminary jurisdictional issue, namely, that the Applicant is out of time pursuant to S170EA(3) and that time should not be extended so as to bring the application under S170EA into jurisdiction.
The relevant principles which govern the Court's discretion to extend time within which an application under S170EA may be lodged are set out in the decisions of Keely J in Transport Workers Union of Australian v National Dairies Limited, No 2 (1994) 57 IR 186, and Beazley J in Michael Turner v KJ Truck Coff's Harbour Pty Limited IRCA, NI1246 of 1994 (10 August 1995), and in Brodie Hanns v MTV Publishing Limited, IRCA, (31 October 1995) North Coombes Pty Limited v Reece Pty Limited, IRCA, 26 April 1996; Szabo v T.T. Line and Company Limited, IRCA, 20 November 1995; and Carnegie v Eastern Energy Limited, IRCA (23 February 1996).
The first of those principles is that 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 so extend. In this case, no acceptable explanation has been given for a delay of three months from 24 October 1995 to 22 January 1996. The discussion with the solicitors Slater and Gordon, if an explanation for delay, is only an explanation for some delay in October 1995. The 14-day time limit under S170EA(3)(a) applied on or about 24 October 1995 (i.e. 14 days after receipt of the written notice of termination).
The Applicant cannot say when he wrote to the Industrial Relations Court; he believes it was in October 1995. The Applicant cannot say when he got a reply from the Industrial Relations Court of Australia; again he believes it was still in October 1995. He states that he may have the reply at home with other relevant papers, but he did not bring those papers with him and, surprisingly, did not consider they would be relevant. The Applicant never lodged his claim with the Australian Industrial Relations Commission until 22 January 1996, and seems to have signed it in late December 1995, although he said in cross-examination he sent it to the Industrial Relations Commission, at the latest, in early November 1995.
This was one of many examples in which the Applicant gave imprecise and unimpressive evidence. At other times he gave inconsistent and conflicting evidence.
The second principle - and I am referring to the principles in the cases already cited are, of course, the principles set out by Wilcox J, as he then was, in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349. The second of those principles is that action taken by the Applicant to contest the termination, will be relevant.
The main thrust of that principle is that any action taken, other than applying under the Act, can be, in certain circumstances, action which shows that the termination is actively contested. Those circumstances may favour the granting of an extension of time. The only action taken by the Applicant, other than applying under the Act, appears to be his consultations with a solicitor, possibly Mr Peter Hunt, at Slater and Gordon. I have already indicated that, such consultations could only be an explanation for a delay in October. Furthermore, it is not, in any way, an action which demonstrated to the Respondent that the termination was actively contested.
The third principle is that prejudice to the Respondent, including prejudice caused by the delay, will go against the granting of an extension of time. The Respondent in this case is not a large employer. This Respondent, indeed all Respondents, should not be lightly put to the cost and inconvenience of defending an application lodged out of time, unless the interests of justice so dictate. Further, the delay occasioned by the lateness in bringing the application will doubtless impact, even if only in a minor way, on the recollections of the Respondent's officers concerning the relevant events relating to the Applicant's termination.
I find that the delay has caused very minor prejudice, but nevertheless prejudice to the Respondent.
The fourth principle is that the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time. This principle applies with equal or more force in a case in which the prejudice to the Respondent is described as I have described it, “merely minor”.
The fifth principle is that the merits of the substantive application may be taken into account in determining whether to grant an extension of time. In the circumstances the Court has had available to it some evidence to justify holding some view on the merits of the matter, but finds it unnecessary to express a view and has decided that it is best that it does not do so. This aspect and this principle is neutral.
The sixth principle is that considerations of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion. This criterion provides little assistance to the resolution of the issue before the Court. To the extent that it does provide assistance, it favours the Respondent, in that this Court should not encourage late applications.
And I am happy to rely, as I have so often in the past on a short and succinct decision of Northrop J in Mahnken v Saunders Logging Pty Ltd (1994) 57 IR 237. Given the inadequate explanation for the delay in instituting proceedings and the other observations made, it is the view of the Court that no extension of time should be granted and the application must be dismissed.
The order of the Court is that the application, under S170EA lodged in the Australian Industrial Relations Commission on 22 January 1996 is dismissed, no extension of time having been granted under S170EA(3)(b).
MINUTES OF ORDERS
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding 3 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 12 August 1996
Mr A McDonald of McDonald and Charman, solicitors, appeared for the Applicant.
Mr J Hargrave of the Printing Industries Association of Australia appeared for the Respondent.
Date of hearing: 5 and 10 July 1996
Date of judgment: 10 July 1996
21
0
0