Robert James McCafferty v Savings and Loans Credit Union
[1995] IRCA 214
•11 April 1995
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - Time - Application for extension of time.
PRACTICE AND PROCEDURE - Industrial Relations Court of Australia - Termination of employment cases - Steps to be taken by parties to ensure that proceedings are set down and concluded as speedily as possible.
Industrial Relations Act 1988, S170EA.
ROBERT JAMES McCAFFERTY v SAVINGS AND LOANS CREDIT UNION
No. TI-194/94
Before: Ryan JR
Place: Hobart
Date: 11 April 1995
Coker-Godson v National Dairies Limited, I.R.C.A. VI-262/94 (22 August 1994) (unreported);
Hunter Valley Developments Pty Limited v Cohen [1984] 3 FCR 344;
Mahnken v Saunders Logging Pty Ltd (Northrop J) [1995] 57 IR 237.
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY Matter No TI-194/94
B E T W E E N: ROBERT JAMES McCAFFERTY
Applicant
AND: SAVINGS AND LOANS CREDIT UNION
Respondent
RYAN JR
MINUTES OF ORDER
11 APRIL 1995
THE COURT ORDERS THAT:
The application be dismissed.
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
TASMANIA DISTRICT REGISTRY Matter No TI-194/94
B E T W E E N: ROBERT JAMES McCAFFERTY
Applicant
AND: SAVINGS AND LOANS CREDIT UNION
Respondent
COURT: RYAN JR
PLACE: HOBART
DATE: 11 APRIL 1995
REASONS FOR JUDGMENT (EX TEMPORE)
The applicant worked for the respondent from December 1992 to July 1994. He occupied a position known as supervisor, administration, having been first employed as a casual collection officer. The applicant alleges he was unlawfully dismissed from his employment and he sought by way of the application as lodged, reinstatement, compensation and an order that the time for making his application be extended. Mr Cooper, for the applicant, states that the applicant no longer seeks reinstatement but of course the Court must consider the primary remedy if a case proceeds and unlawful termination is found.
Section 170EA(3) requires an application to be lodged within 14 days of receiving written notice of termination of employment. The application was not lodged until 25 October 1994, three and a half months after termination, and three and a half months after receipt of written notice of termination. The principles relating to extension of time were referred to by Keely J of this Court on page 5 of Coker-Godson v National Dairies Limited, VI-262/94, a recent decision of the Court, 22 August 1994. I think that case has since been reported in the Industrial Reports, but I refer to page 5 of the unreported decision. Keely J referred to a decision of Wilcox J, as he then was, in Hunter Valley Developments Pty Limited v Cohen [1984] 3 FCR 344. At 348 and 349 Wilcox J was dealing with section 11 of the Administrative Decisions (Judicial Review) Act of 1977. However, the principles are applicable to any application for extension of time. The six principles laid out in Hunter Valley and developed from case law over a period of time are as follows:
(1)Special circumstances need not be shown but the Court will not grant an application for extension of time unless positively satisfied that it is proper to do so. It is a pre-condition to the exercise of discretion in favour of an applicant for the applicant to show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.
(2)Action taken by the applicant (other than by making an application for review in the case of the Administrative Decisions Judicial Review Act and making an application for remedy in this case) is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who by non-curial means had continued to make the decision maker aware (in this case the employer aware) that he, the applicant, contests the finality of the decision.
(3)Whether or not there is prejudice to a respondent.
(4)Mere absence of prejudice is not enough.
(5)That the merits of the substantial application are properly to be taken into account (something on which the Court was not addressed by either party).
(6)Considerations of fairness, as between applicants and other persons otherwise in a like position.
In respect of the first and second principles Mr Cooper submits that the applicant made every effort to take action by consulting solicitors and a union of which he was not a member, and that the real delay was occasioned by a delay at the Legal Aid Commission after Mr Cooper himself had been instructed. Ms Lyon, for the respondent, points out that the applicant himself made no attempt to find out from the Court what steps could be taken by him to lodge an application alone and unaided.
The Court pauses to note that this is a jurisdiction in which applicants and potential applicants are given every assistance to lodge without representation and, indeed, to pursue claims to finality without assistance.
In respect of the second principle (efforts by non-curial means to put a respondent on notice) nothing was done either by the applicant or his solicitor in the three and a half months from termination to lodgment.
Ms Lyon alleges no prejudice in respect of the third principle. Mr Cooper himself concedes that general prejudice can flow in such circumstances but certainly suggests none. The Court notes that such a delay inevitably created some prejudice but it is not significant and none is alleged by the respondent.
However, Ms Lyon rightly points out the existence of the fourth principle which is that mere absence of prejudice is not enough to justify the grant of an extension.
The fifth principle is the merits of a substantive application. Ms Lyon did not raise that but the Court does. Even from the papers filed it has to be said that this is an application subject to substantial challenge and that is in no way a finding on the merits. It is not possible to make such a finding but the Court simply notes that the merits of the application to the extent that they can be considered at this initial stage, have been considered.
The sixth principle is that considerations of fairness as between an applicant and other persons otherwise in a like position are relevant in the manner of exercise of the Court’s discretion. If applications are not lodged in this jurisdiction until claims for legal aid are resolved, the jurisdiction will grind to a halt if such claims are given an imprimatur under S170EA(3). The whole emphasis of the jurisdiction is expedition in lodging, expedition in conciliation and, if a hearing is necessary, expedition in listing for trial. See Mahnken v Saunders Logging Pty Ltd (Northrop J) [1995] 57 IR 237.
The union officer seems to have given the applicant good advice although that, too, was a little late. That was advice to lodge an application and to pursue it at least to the conciliation stage. After all, had that been done and conciliation as here proved to be unsuccessful, an adjournment of trial could well have been sought while the legal aid issue was resolved and of course, such an application would have been considered. In saying that, the Court is not saying a trial would have been deferred on that ground but it would have been considered.
For all six principles outlined in Hunter Valley Developments, for all six, and considering all, I decline to extend time and, in doing so, I have noted Keely J’s tentative qualifications on which he did not rule but which he expressed at the conclusion of his judgment in Coker-Godson v National Dairies. The Court, having declined to extend time, there is no jurisdiction.
The application is dismissed.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date : 18 May 1995
Appearances:
Counsel for the Applicant : Simon Cooper
Solicitor for the Applicant : Ogilvie McKenna
Counsel for the Respondent : Melissa Lyon
Solicitor for the Respondent : Dobson Mitchell & Allport
Date of Hearing : 11 April 1995
Judgment : 11 April 1995
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