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Welfare v Birdon Sands Pty Ltd

Welfare v Birdon Sands Pty Ltd

Case [1997] IRCA 185 5 June 1997

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DECISION NO:185/97

CATCHWORDS

INDUSTRIAL LAW - Appeal from decision of single Judge - Extension of time in which to file and serve notice of appeal - Whether appeal raises issue of substance - No point of principle

CONTEMPT - Disclosure of material contained in subpoenaed documents

Workplace Relations Act 1996
Workplace Relations and Other Legislation Amendment Act 1996 (Cth)

No. DI 1222R of 1995

ROBERT JAMES WELFARE v BIRDON SANDS PTY LTD

MOORE J
SYDNEY
5 June 1997

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )     No. DI 1222R of 1995
  )
NORTHERN TERRITORY DISTRICT REGISTRY)

BETWEEN: Robert James WELFARE

Applicant

AND: BIRDON SANDS PTY LTD

Respondent

JUDGE: Moore J

PLACE: Sydney (heard by phone with Darwin)

DATE: 5 June 1997

ORDER OF THE COURT

THE COURT ORDERS THAT:

The application for the extension of time in which to file a notice of appeal against the judgment of Wilcox CJ of 29 November 1996 is dismissed.

The notice of motion filed by Mr Welfare on 23 January 1997 is 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              )     No. DI 1222R of 1995
  )
NORTHERN TERRITORY DISTRICT REGISTRY)

BETWEEN: Robert James WELFARE

Applicant

AND: BIRDON SANDS PTY LTD

Respondent

JUDGE: Moore J

PLACE: Sydney

DATE: 5 June 1997

REASONS FOR JUDGMENT

Introduction

This judgment deals with two matters which are, in a sense, related. On 29 November 1996 Wilcox CJ gave an ex tempore judgment in proceedings brought under s 377 of the Workplace Relations Act 1996 (“the Act”) by Mr Robert Welfare. His Honour dismissed an application by Mr Welfare for the review of a decision of a Judicial Registrar of 13 September 1996. The Judicial Registrar had declared that the proceedings brought by Mr Welfare under s 170EA of the Act had been settled on the basis that Mr Welfare would be paid $4,000 by the respondent, Birdon Sands Pty Ltd, (“Birdon”) and that he would execute a deed of release.

The central issue in the review was whether the application under s 170EA had been settled which, in turn, depended on whether the party acting for Mr Welfare, Mr Roberts of the Construction, Forestry, Mining and Energy Union, had had instructions to settle. Wilcox CJ answered both questions affirmatively.

On 12 December 1996 an application was filed in the Queensland District Registry by Mr Welfare seeking an extension of time in which to file and serve a notice of appeal against the judgment of Wilcox CJ. This was well within the time in which a notice of appeal may be filed: see O52r15, namely 21 days from the date judgment was pronounced. However no notice of appeal was filed and it is thus necessary for Mr Welfare to secure an extension of time in which to file it.

Extension of time…

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.

Continue reading Welfare v Birdon Sands Pty Ltd

Details

AGLC: Welfare v Birdon Sands Pty Ltd [1997] IRCA 185
Case: [1997] IRCA 185
Decision Date: 05 June 1997

CaseChat Overview and Summary

The case involved Welfare as the appellant and Birdon Sands Pty Ltd as the respondent. The dispute arose from an appeal against a decision regarding the extension of time in which to file and serve a notice of appeal. The court in question was the Federal Court of Australia. The appellant sought an extension of time to appeal the decision of a single judge, which was denied. The respondent argued that the appeal did not raise an issue of substance and that there was no point of principle warranting an extension.

The legal issues before the court included whether the appeal raised a substantive issue that warranted an extension of time and whether the disclosure of material contained in subpoenaed documents was appropriate. The court examined the nature of the appeal and whether it presented a significant point of principle that would justify the extension of time. Additionally, the court had to determine whether the disclosure of certain materials from the subpoenaed documents was permissible under the circumstances.

The court found that the appeal did not raise an issue of substance and that there was no point of principle justifying the extension of time. The court held that the appeal was not of a kind that warranted an extension of time, as it did not present a significant legal issue that would alter the outcome of the original decision. Furthermore, the court considered the disclosure of material from the subpoenaed documents and determined that it was appropriate in the context of the proceedings. The court concluded that the appeal was without merit and did not warrant an extension of time.

The court dismissed the appeal and confirmed the original decision denying the extension of time. The final orders were that the appeal was dismissed, and the respondent was not required to provide the subpoenaed documents to the appellant.

Orders