Turner v K & J Trucks Coffs Harbour Pty Ltd
[1995] IRCA 360
•10 August 1995
CATCHWORDS
INDUSTRIAL LAW - termination of employment - application to court for remedy in respect of termination - time limit for lodging application - whether extension of time should be granted - principles to be applied for granting an extension of time - whether there was an acceptable explanation of delay - whether extension of time would prejudice respondent - whether fair and equitable to grant extension of time.
Industrial Relations Act 1988 (Cth): s 170EA(3).
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Wedesweiller v Cole (1983) 47 ALR 528
Martin v Nominal Defendant (1954) 74 W.N. (NSW) 121
Pozniak v Minister for Health & Ors (Burchett J, Federal Court, 14 March 1986, unreported)
Winter v The Deputy Federal Commissioner of Taxation (1987) 87 ATC 4065
Coker-Godson v National Dairies Limited (Keely J, Industrial Relations Court, 22 August 1994, unreported)
Lovatt v LeGall (1975) 10 SASR 479
MICHAEL TURNER v K&J TRUCKS COFFS HARBOUR PTY LIMITED
No. NI 1246 of 1994
Beazley J
10 August 1995
Sydney
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
) No. NI 1246 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )
)
BETWEEN:MICHAEL TURNER
Applicant
AND:K&J TRUCKS COFFS HARBOUR PTY LIMITED
Respondent
CORAM:BEAZLEY J
PLACE: SYDNEY
DATE: 10 August 1995
SHORT MINUTES OF ORDER
The Court orders that:
The time in which the application under s 170EA of the Industrial Relations Act 1988 (Cth) may be filed be extended to 7 December 1994.
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 1246 OF 1994
NEW SOUTH WALES DISTRICT REGISTRY )
)
BETWEEN:MICHAEL TURNER
Applicant
AND:K&J TRUCKS COFFS HARBOUR PTY LIMITED
Respondent
CORAM:BEAZLEY J
PLACE: SYDNEY
DATE: 10 August 1995
REASONS FOR JUDGMENT
BEAZLEY J: This is an application to review a decision of a judicial registrar refusing to extend time for the bringing of an application under s 170EA of the Industrial Relations Act 1988 (Cth) (the "Act").
Background Facts
The applicant was dismissed from his employment as a mechanic with the respondent on 4 October 1994. There is no dispute as to the date of his dismissal; that he was given written notice of dismissal by his foreman, Mr Harry Rathbone, at the time that his employment was terminated; or that he had a conversation with his foreman at the time of his dismissal. However, Mr Turner's and Mr Rathbone's recollections of the terms of the conversation differ. Mr Turner recollects saying to Mr Rathbone:
"I am not happy about this. I disagree with the letter."
and that Mr Rathbone replied:
"I am sorry for what has happened but I can't do anything about it. Work is pretty slow at the moment. I have never had to do this before."
Mr Rathbone's recollection of the conversation is slightly but significantly different. He said the conversation was as follows:
Mr Rathbone:
"I am sorry to do this. I've not done it before but we must terminate your employment. We've warned you before, however, your work is still not acceptable. Marilyn will now draw up your pay and you can collect it from her."
He said that a short time later, Mr Turner came to him with his pay and said:
"I do not accept this. I don't agree with the calculation".
Mr Rathbone responded:
"If you've got any problem, contact the DLI and they can check our figures. If our calculations are wrong we'll fix it up and pay you what is owing."
Mr Rathbone said that Mr Turner made no response.
Mr Turner said that about two weeks after he was dismissed, his then de facto wife, Ms Emma Brenton, thought of approaching the Department of Industrial Relations in Coffs Harbour for advice. Mr Turner said that he left it to Ms Brenton to do so, both because he was working, and that was the type of thing that she often did for the parties in the relationship. He said that he had not taken any steps earlier as he was very distressed about his employment being terminated and that he did not know what to do as he had little experience of the legal system. He said that he had not been in that situation before and did not know where to go for information.
Ms Brenton said that she went to the Department of Industrial Relations in Coffs Harbour on about 18 October 1994, requesting information about unjust dismissal. She said she was given a telephone number to ring in Newcastle. It is to be inferred from her evidence that it was the telephone number for the Department of Industrial Relations in that city. She said that the woman to whom she spoke in the Coffs Harbour office also said to her:
"You have 21 days in which to file an application to the Court."
Ms Brenton said that she then had the following conversation:
Ms Brenton:
"We might be too late if that is the case, what should we do?"
The woman:
"Don't worry, the people in Newcastle will not send you the forms unless they think it is alright for you to file them late".
Ms Brenton said she then rang the Newcastle office and gave details of the circumstances in which Mr Turner had been sacked and the date on which he had been sacked. She said that no advice was given to her about the time in which the application had to be filed. She was told that the relevant form would be forwarded to Mr Turner. The form did not arrive and about a week later, Ms Brenton received a telephone call from a person from the Department of Industrial Relations in Newcastle who informed her that the letter to Mr Turner had been returned. Ms Brenton said at that time she and Mr Turner did not have a letterbox at the rental property in which they lived. Apparently the postman left the mail at the front door. Ms Brenton said that they realised at about this time that some of their mail was being lost. She gave the Department Mr Turner's father's post box number and the forms were forwarded to that address in early November 1994.
Mr Turner said that after he received the forms, he made arrangements to see a solicitor as, although he did not wish to engage a solicitor to represent him, he did not feel confident about making the application without first getting legal advice. At that time, Mr Turner had a solicitor acting for him in respect of a work accident and he decided to consult her. His evidence contains two versions of what happened in relation to the arrangements to see his solicitor. In his affidavit of 9 June 1995, he said that the first appointment had to be rescheduled because the solicitor had unforeseen court commitments. He said there was then some delay in obtaining a further appointment and it was not until 28 November 1994 that he was able to obtain an interview to discuss his application. In his oral evidence, he said that when he sought to make an appointment with his solicitor, he was told she was on holidays and she could not see him for about a week and there was thus a delay in being able to see her.
Mr Turner was uncertain as to when he completed the application form and in particular whether he completed it before he saw his solicitor or during the course of his conference with her. He could not recall whether the solicitor forwarded the application to the Industrial Relations Court, or whether he did that himself. The application form is dated "1.12.72", which is clearly an error. That date is Mr Turner's date of birth, which he had also completed on the front of the form. The circumstances of completing the form are not sufficiently clear to infer that it was dated on 1 December 1994. In any event, the application was not filed in the Registry until 7 December 1994.
Mr Turner, Ms Brenton and Mr Rathbone were all cross examined, albeit briefly. Mr Rathbone was a confident, straightforward witness. In contrast, Mr Turner was vague in respect of detail and did not have a good memory. Accordingly, where the evidence of Mr Turner conflicted with that of Mr Rathbone's, I prefer Mr Rathbone's evidence. In doing so, I should indicate that I did not consider that Mr Turner was deliberately lying or was trying to mislead the court. He genuinely appeared to be a person who does not have a good memory, or at least a good memory for detail.
Ms Brenton's evidence was more difficult to assess. She had an unusual demeanour, which might best be described as "cocky" and there were aspects of her evidence which were not entirely consistent. According to her, she made inquiries at the Coffs Harbour office of the Department of Industrial Relations about 2 weeks after the dismissal. She says, however, that when she was told an application had to be filed within 21 days, she thought that, even at that stage, they might be out of time. This reaction does not accord with the actual time frame. Nor does the information seem to have imported to her any sense of urgency. She sought to explain this by stating that she was told at the Coffs Harbour office that the Newcastle office would not send her the forms unless they considered the application could be filed late. In one respect I have difficulty accepting this evidence as it involves accepting that a staff member of the Department would give such advice over the counter. On the other hand, it is not unknown for office staff, both in government departments and in private enterprise to give out wrong information or alternatively for such information as they give out to be misunderstood. However, even accepting that the statement was made, there is no evidence that Ms Brenton conveyed any of this to Mr Turner.
Had it not been for my acceptance of Mr Turner as a genuine witness, I would have had some concerns as to Ms Brenton's credibility. However, he generally supports Ms Brenton's version of events. Accordingly, notwithstanding the difficulties I had with her evidence, I accept, on balance, that she did make the inquiries to which she deposed and that there was the outcome to which she referred.
Principles for Extension of Time
It was accepted by both the applicant and respondent that the general considerations referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349 were applicable to an application for extension of time under the s 170EA(3) of the Act. Those considerations are:
"Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period"...is not to be ignored (Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at 485; Chapman v Reilly unreported (Federal Court of Australia, Neaves J, 9 December 1983) at 7).
Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question 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, has continued to make the decision-maker aware that he contests the finality of the decision (who has not "rested on his rights"; per Fisher J in Doyle v Chief of Staff (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (1984) 1 FCR 287 with Lucic at 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.
Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.
However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.
The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6.
Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534-535".
It was submitted on behalf of the applicant that there was an acceptable explanation of the delay and that the applicant, on 4 October 1994, had told Mr Rathbone that he was not happy about the dismissal, so as to put the respondent on notice that action might be taken against it. It was submitted therefore that in all the circumstances it was just and equitable that an extension be granted. The respondent conceded that the s 170EA application had substantial merit in the sense referred to in Hunter Valley Developments. It was submitted, however, that there had been a significant delay in bringing the application and there was no acceptable explanation of the delay. It was further submitted that the respondent was prejudiced as it would be required to incur further legal costs in defending the substantive application if leave was granted.
Explanation of delay
The s 170EA application should have been filed on 18 November 1994, 14 days after Mr Turner received written notice of termination of his employment: s 170EA(3). It was filed 50 days late, on 7 December 1994. The applicant said he assumed there was some time limit involved in making an application, which he thought would be 21 days. Ms Brenton was given to understand that there may have been a time limit of 21 days but that she was told that the Newcastle office would not send out the forms if the applicant was not entitled to file the application late.
The application form was received from the Department of Industrial Relations in early November. It is not clear when, having obtained the form, Mr Turner tried to make an appointment with his solicitor but it seems to have been in about mid-November. Once having seen his solicitor, there was a delay of another 9 days before the application was filed. The application was filed by post, so allowance has to be made for the time taken for the application to reach the Registry from Coffs Harbour in the usual course of post. There was no evidence as to this but it would be reasonable to allow 2-3 days.
It was clear from the evidence that Mr Turner's solicitor was not aware of any time limits for the bringing of the application. There are a number of decisions to the effect that negligence of a solicitor may be a sufficient reason to extend time: see Martin v Nominal Defendant (1954) 74 W.N. (NSW) 121 at 125; Pozniak v Minister for Health & Ors (Burchett J, 14 March 1986, unreported); Winter v The Deputy Federal Commissioner of Taxation (1987) 87 ATC 4065. In Hunter Valley Developments, Wilcox J stated at 351:
"...although the fact that a relevant failure is the fault of the solicitor for a party rather than the party himself does not in itself amount to sufficient cause to excuse the delay "the blamelessness of the claimant and the responsibility of his solicitor is very material": See Sophron v The Nominal Defendant (1957) 96 CLR 469 at 474. It would be erroneous to treat the fault of the solicitors as if it were the direct default of the client."
See also Repatriation Commission v Gordon & Ors (1990) 26 FCR 569 especially at 574.
The solicitor's lack of knowledge of the time limit provides some assistance to the applicant's case, in that nothing she did imparted any sense of urgency to the applicant. However, in so far as her conduct is relied on to provide an explanation for the delay, it deals with a short period of about a week only.
Overall, the applicant acted without any sense of urgency in the making of his application, notwithstanding that he had some belief that there may have been a time limit of 21 days and notwithstanding that Ms Brenton had been given to believe that there was a time period of 21 days. As will be seen, the essential question on this application is whether that lack of sense of urgency is fatal to the applicant's case.
Other action taken by applicant
It was further submitted on behalf of the applicant that he had put the respondent on notice that he may consider taking action over his dismissal. However, as I have accepted Mr Rathbone's evidence on this point it is not necessary to deal with this issue further. I should state however that the delay is not so lengthy as to raise the problem that memories might fade as was referred to in Hunter Valley Resources. Nor do I consider that the need for finality of disputes is a relevant factor in this case.
Prejudice to the respondent
The respondent submitted that it was prejudiced by the applicant's failure to make the application within time because it would incur the costs of a further hearing if the time was now extended. In my opinion, this submission is misconceived. When properly analysed, the respondent's complaint is that it will be prejudiced in relation to costs, not because the application was made out of time, but because it was not made at the time the matter was heard by the judicial registrar. The consequence was that the matter proceeded, right up to the point of the commencement of the respondent's case, on the basis of a complete hearing of the substantive application.
However, even if prejudice of that nature could be relevant prejudice for the purposes of an extension of time, I am of the opinion that the costs detriment of which the respondent complains is not sufficient in this case to refuse an extension of time. In the first place, not all the costs which were incurred in relation to application up until the time it was dismissed by the judicial registrar will have been lost if the extension of time is granted. The same affidavits could be used on a further hearing of the matter. It may also be that the transcript of the cross examination of the applicant and his witnesses could be used. Further, the respondent would at all times have been aware that the application was filed out of time and the point was raised by its solicitor at a relatively early point in the proceedings. Mr Turner acknowledged that the matter was raised at the conciliation conference. However Mr Turner did not have any legal representation at that conference, although by this time he was legally represented in the matter. Mr Turner did not subsequently raise the issue with his solicitor. He did not appear to understand the importance of doing so, or to have an appreciation of its significance. He seemed to consider that it was sufficient that he had explained the matter to the person undertaking the conciliation.
The matter was not raised again until the commencement of the respondent's case at the hearing before the judicial registrar. At that point, the judicial registrar noted that she had expected an application for leave to be made during the applicant's case, or alternatively, for the issue to be raised by the respondent. The respondent's solicitor responded:
"Yes I wish to address the court on that point in my final submissions Madam Registrar... Now my submission wasn't made earlier because I needed the evidence from the applicant as to precisely when he said he got that notice.
...
Well Madam Registrar the reason why it's not made earlier than now was that it was raised at the conciliation conference."
As I have already stated, the respondent's solicitor had some instructions in relation to the date written notice of termination was given, as he raised it during the conciliation conference. In my opinion, his statement to the judicial registrar reveals he had made a tactical decision not to raise the matter until the conclusion of the proceedings. A party is entitled to make tactical decisions in the course of litigation but if they do have the anticipated result, the opposing party should not thereby bear the burden of their failure or be disadvantaged as a result. Accordingly, I am of the opinion that the prejudice involved in the additional costs now involved, if leave is granted, should not be to the applicant's disadvantage on the leave application. In any event, I am of the opinion that the amount of those costs will not be substantial, given that the work already done in the matter could be utilised in a hearing of the substantive application.
I should add finally that this is not a case where public interest considerations intrude. Nor is there any question of persons having to be removed from the position formerly occupied by the applicant. Nor is this a case where any practice has been instituted which would be interfered with should there be an extension of time.
Whether it is fair and equitable to grant the extension
That leaves the question whether, in the absence of relevant prejudice, the application for extension of time should be granted. In Coker-Godson v National Dairies Limited (Keely J, Industrial Relations Court, 22 August 1994, unreported) Keely J stated at 6-7 that:
"...the wording of s 170EA(3) is such that it may well be easier for an applicant, under the sub-section, to persuade this court to allow a "further period" than it is for an applicant, under s 11 of the Judicial Review Act, to persuade the Federal Court i.e. on the principles distilled by Wilcox J in Hunter Valley at 348 "to guide, not in any exhaustive manner, the exercise of the court's discretion" under the Judicial Review Act. In saying that I am referring in particular to the statements in principle 1 that: (a) "the court will not grant the application unless positively satisfied that it is proper so to do", (b) "it is the prima facie rule that proceedings commenced outside that period will not be entertained" and (c) it "is a pre-condition...that the applicant show an "acceptable explanation of the delay" (emphasis added). As the mater has not been argued I shall not express any opinion on the question."
In my opinion, there is force in his Honour's prima facie view. Whilst the scheme of Part VIA Division 3 of the Industrial Relations Act is to provide for quick and inexpensive resolutions of clams for unjust dismissals, the Act does not involve the same considerations of public administration as are inherent in applications to review administrative decisions. In any event in Lovatt v LeGall (1975) 10 SASR 479 Bray CJ stated at 485:
"If the defendant has suffered no prejudice,...it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant an extension."
The length of the delay, the explanation for the delay and the absence of prejudice, or alternatively the minimal prejudice to the respondent have to be balanced to determine if it is just and equitable to grant the extension of time. The overall impression I have of the applicant's evidence is that, whilst he believed there may have been a time limit, he did not appreciate the significance of acting promptly. Whilst I did not have direct evidence of the applicant's educational background, I infer from his trade that he is not a highly educated person. There was also evidence that he was not adept at understanding forms and that Ms Brenton attended to many of the organisational and business aspects of their lives, because she was better at doing so. The applicant lives and works in Coffs Harbour which is a coastal town. I have no doubt that life there is conducted at a more leisurely pace than in major cities. This seemed to be reflected in Mr Turner's demeanour generally and his approach to this case. Whilst a delay of some 50 days in the context of a time limit of 14 days, may seem a lengthy delay, the factors to which I have referred do provide an acceptable explanation of the delay. Accordingly, in circumstances where there is no relevant prejudice to the respondent, no questions of public interest, and where reinstatement is not sought so as to upset arrangements which the respondent may have put in place since the dismissal, it is just and equitable to grant the extension of time.
I certify that this and the preceding 15 pages
are a true copy of the Reasons for Judgment
of the Honourable Justice Beazley.
Associate:
Dated: 10 August 1995
APPEARANCES
Solicitors for the Applicant: Messrs Musgrave & Malcolm
Solicitors for the Respondent: Catherine McKimm & Associates
Date of hearing: 24 July 1995
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