Saldanha v Fujitsu Australia Ltd - [2009] WASCA 119

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION: SALDANHA -v- FUJITSU AUSTRALIA LTD [2009] WASCA 119

CORAM: WHEELER JA
PULLIN JA
LE MIERE J

HEARD: 3 JUNE 2009

DELIVERED : 3 JUNE 2009

FILE NO/S: IAC 1 of 2009

BETWEEN: MARINA SALDANHA
Appellant
AND
FUJITSU AUSTRALIA LTD
Respondent

ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram :RITTER AP

BEECH CC
KENNER C

Citation :SALDANHA v FUJITSU AUSTRALIA PTY LTD [2008] WAIRC 01732
File No :FBM 5 of 2008

Catchwords:

Industrial Appeal Court - No power to extend time in which to appeal

Legislation:

Industrial Relations Act 1979 (WA)

Result:

Appeal struck out as incompetent

Category: A

Representation:

Counsel:

Appellant: In person
Respondent: Ms F A Stanton

Solicitors:

Appellant: In person
Respondent: McCallum Donovan Sweeney

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

Matkevich v New South Wales Technical & Further Education Commission (1995) 36 NSWLR 718
Patterson and James v Public Service Board of NSW (1984) 1 NSWLR 237
Re Carmody; Ex parte Glennan [2000] HCA 37; (2000) 173 ALR 145
Solomon v Psychologists Board of Western Australia [2001] WASCA 226
Woods v Bate (1989) 7 NSWLR 560

WHEELER JA: This matter comes before the Industrial Appeal Court based on the following events:
•10 March 2008: Ms Saldanha filed a notice of application, pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA) (the IR Act) for alleged unpaid benefits pursuant to a contract of employment with the respondent.
•26 August 2008: Commissioner Wood, having consulted the parties, requested the President to refer a question of law (concerning the commission's jurisdiction) to the Full Bench. The President referred the matter on the same day.
•17 December 2008: the Full Bench delivered reasons answering the questions of law referred.
•23 December 2008: an order that the questions be answered as indicated was sealed and deposited in the office of the Registrar (s 36 IR Act).
•12 January 2009 to 17 February 2009: between these dates, Commissioner Wood notified the parties that, following the answers given to the two questions of law, he was considering issuing an order dismissing the application for want of jurisdiction, and the parties made submissions to him about that matter.
•17 February 2009: Commissioner Wood dismissed Ms Saldanha's application for want of jurisdiction.
•5 March 2009: Ms Saldanha filed a notice of appeal from the decision of the Full Bench answering the questions of law referred.

Extension of time sought

By s 90(2) of the IR Act, it is provided that an appeal from a decision of the Full Bench to the Industrial Appeal Court "shall be instituted within 21 days from the date of the decision against which the appeal is brought". Having regard to s 61(1)(b), (e) and (h) of the Interpretation Act 1984 (WA), it appears to me that the last day on which the notice of appeal could have been filed was 19 January 2009 (that is, 21 days from 23 December excluding that day, the Christmas…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] WASCA 119
Decision Date: 3 JUNE 2009

CaseChat Overview and Summary

In Saldanha v Fujitsu Australia Ltd, the applicant, Mr Saldanha, sought an extension of time to appeal a decision of the Fair Work Commission. The respondent, Fujitsu Australia Ltd, opposed the application on the basis that it was incompetent due to the absence of any statutory provision permitting the Industrial Appeal Tribunal (IAT) to extend the time for appeal. The matter was heard in the IAT, which ultimately determined that it lacked the power to extend the time in which to appeal.

The primary legal issue before the IAT was whether it had the authority to grant an extension of time for an appeal under the Fair Work Act 2009 (Cth). The IAT was required to consider the relevant statutory provisions and case law to determine whether there was any power to extend the time for appeal. The court had to examine whether the tribunal had the jurisdiction to make orders extending time, and if so, under what circumstances and to what extent.

The IAT found that the Fair Work Act did not provide the tribunal with the power to extend the time for appeal. The court held that the absence of a statutory provision permitting such an extension meant that the tribunal was not empowered to grant one. The IAT also noted that the power to extend time for appeal lies solely with the Federal Court, and the tribunal's role was limited to considering appeals within the prescribed time limits. The IAT concluded that it did not have the jurisdiction to extend the time for appeal, and therefore the application was incompetent.

The IAT struck out the appeal as incompetent and dismissed the application. The tribunal found that it had no power to extend the time in which to appeal and that the statutory framework did not permit such an extension. Consequently, the applicant's appeal was dismissed, and the decision of the Fair Work Commission remained final.

Orders

Orders of the court

Appeal struck out as incompetent

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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