Wood v Commonwealth Bank of Australia

DECISION NO: 192/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - APPLICATION for extension of time to lodge substantive APPLICATION - acceptable explanation for delay - deliberately misleading EVIDENCE
Industrial Relations Act 1988 ss 170EA, 170EA(3), 170EA(3)(b)
Industrial Relations Court Rules, O19r1(1), O19r1(2), O19r1(3), O19r2(2), O19r2(2)(d)
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
TWU of Australia v National Dairies Limited (1994) 57 IR 183
Turner v K & J Trucks Coffs Harbour Pty Limited (1995) 61 IR 412
Szlezynger v Montefiore Homes for the Aged, Fleming JR, unreported, Industrial Relations Court of Australia No. 258/95, 16 June 1995
Bailey v GHE Pty Ltd, Parkinson JR, Industrial Relations Court of Australia No. 545/95, 29 September 1995
Szabo v TT Line Company Limited, Ryan JR, Industrial Relations Court of Australia No. 624/95, 20 November 1995
Brodie-Hanns v MTV Publishing Limited, Marshall J, unreported, Industrial Relations Court of Australia No. 585/95, 31 October 1995
Jay Bradley WOOD - v - COMMONWEALTH BANK OF AUSTRALIA

WI 1022 of 1996
Nelson v Scholle Industries, von Doussa J, unreported, Industrial Relations Court of Australia No. 588/95, 17 October 1995
Dalgleish v Hedland College, Boon JR, unreported, Industrial Relations Court of Australia No. 122/95, 22 February 1995
Patricelli v Glenis Stephenson, RD Farrell JR, unreported, Industrial Relations Court of Australia No. 715/95, 16 November 1995
Watts v Woolworths (Vic) Ltd, Murphy JR, unreported, Industrial Relations Court of Australia No. 164/95, 6 April 1995
Farnell v Ansett Air Freight, Murphy JR, unreported, Industrial Relations Court of Australia No. 441/95, 31 August 1995
Porter v Environmental Recovery Services Ltd, Boon JR, unreported, Industrial Relations Court of Australia No. 147/95, 12 April 1995
Jay Bradley WOOD - v - COMMONWEALTH BANK OF AUSTRALIA

WI 1022 of 1996
Before:                    RITTER JR
Place:            PERTH
Date:                        14 MAY 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1022 of 1996

B E T W E E N:
Jay Bradley WOOD
Applicant

A N D:
COMMONWEALTH BANK OF AUSTRALIA
           Respondent
MINUTE OF ORDERS
14 MAY 1996                     RITTER JR
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
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1022 of 1996
B E T W E E N:
Jay Bradley WOOD
           Applicant
A N D:
COMMONWEALTH BANK OF AUSTRALIA
           Respondent
REASONS FOR DECISION
14 MAY 1996  RITTER JR
BACKGROUND
This proceeding involved an application under Section 170EA of the Industrial Relations Act 1988. On 1 May 1996, I published my reasons in relation to an "interlocutory" matter that arose immediately prior to the commencement of the trial on 21 March 1996. In those reasons I published something of the background of the proceedings.
The application was listed as a one day trial to take place on 21 March 1996. At the conclusion of that day, the trial was not completed and was adjourned part heard until 6 May 1996.
Prior to the commencement of the trial, counsel for the respondent sought production of two documents. It was this matter that was the subject of my reasons published on 1 May 1996.
There was another issue which was raised prior to the commencement of the trial. The respondent argued that the application was commenced out of time and that there was no application before the Court to extend time. This was brought to the attention of counsel for the applicant. He sought, on his feet, an order for an extension of the time within which the applicant had to file the application under Section 170EA of the Industrial Relations Act.
It was necessary for the applicant to make such an application because, on the applicant's case, his employment with the respondent had been terminated on 19 October 1995. The applicant received written notice of the termination of his employment via a letter from the respondent dated 25 October 1995. This letter was received by the applicant on 30 October 1995.
The application to the Court under Section 170EA of the Act was not filed until 8 January 1996.
The then applicable Section 170EA(3) of the Act provided that an application must be made:
(a)Within 14 days after the employee receives written notice of the termination; or
(b)within such further period as the Court allows on an application made during or after those 14 days.
As the applicant received written notice of the termination of his employment on 30 October 1995, time commenced to run, for the purposes of Section 170EA(3) of the Act, on 31 October 1995 (Acts Interpretation Act (Cwth) 1901 (as amended) Section 36(1)). Fourteen days from this date expired on 13 November 1995. That is, the applicant would require the Court to extend time if an application was filed on 14 November 1995 or thereafter. As stated earlier, the application was filed on 8 January 1996. This was some 55 days out of time, just under eight weeks. This period of time is about four times the amount of time (14 days) within which an applicant is by right permitted to file an application.
As stated earlier, there was no formal application before the Court to extend time.
Order 19 rule 1 of the Industrial Relations Court Rules provides in sub-rule (1) that any interlocutory or other application in any proceeding which has already been commenced in accordance with the rules shall be made by motion. Sub-rule (2) provides that the motion shall be supported by affidavit setting forth the facts relied upon. Sub-rule (3) provides that the application may be made to the Court or a Judge. Order 19 rule 2 deals with the filing and service of a notice of motion. Order 19 rule 2(2) provides that a person may move the Court or a Judge without previously filing or serving notice of the motion:
(a)Where the preparation of the notice, or the filing or service (as the case may be) of the notice would cause undue delay or other mischief to the applicant;
(b)where each party interested, other than the applicant, consents to the order;
(c)where under these rules the motion may properly be made without the prior filing or service (as the case may be) of notice of the motion; or
(d)where the Court or a Judge dispenses with the requirements of sub-rule (1).
I drew to the attention of counsel for the applicant that there had been no motion filed with the Court. Counsel for the respondent then indicated that he had "just" asked his client for instructions on the matter and that the respondent was not going to take a "technical point" on the basis that the application was not in writing. The concession by counsel for the respondent that the application should be heard indicated to me that I ought to dispense with the requirement for a written motion, in accordance with Order 19 rule 2(2)(d) and hear the application.
As stated earlier, there was no affidavit filed in support of the application. This was also an irregularity but with the agreement of counsel for the respondent, counsel for the applicant then explained from the bar table the "reasons" for the delay in filing the application. During these submissions, it became apparent that it was inappropriate to decide the application in the absence of some evidence before the Court to explain the delay. Indeed, after hearing submissions from counsel for the applicant, counsel for the respondent said that in his view it was not appropriate at that stage for me to make a decision on whether an extension of time would be granted. He submitted that it would be "more appropriate" at the end of the evidence for me to consider the extension of time issue. This matter was briefly discussed with counsel for the respondent who then indicated that he was happy to "argue the matter at the end". The appropriate way to proceed with the matter was then discussed with counsel. Counsel for the respondent indicated that he was anxious to proceed expeditiously because there was a witness present in court from Sydney whom he was hoping would be able to give evidence that day. As it turned out, this was unable to be achieved.
Counsel for the applicant opened his case with a short opening and then called the applicant to give evidence. The applicant was examined in chief and cross examined during the course of the day. The cross examination ended just prior to the Court rising at 6.00 pm. The re-examination of the applicant was deferred until the resumption of the hearing on 6 May 1996. On that date, the re-examination of the applicant occurred and then the applicant called one further witness, a Mr Manning. After Mr Manning's evidence was completed, the applicant closed his case.
Counsel for the respondent then indicated that in his submission, I should then decide the application to extend time. He submitted that all of the evidence relevant to the issue had been given by or on behalf of the applicant. He further submitted that if the application was not successful in the extension of time argument, time and expense would be saved by the parties. In particular, he referred to the fact that the witness who had to travel from Sydney was scheduled to travel that evening, and so therefore if the application to extend time was dismissed, the witness could be saved the time and expense of a trip to Western Australia.
I enquired of counsel for the applicant whether it was indeed the case that all of the evidence relevant to the application to extend time had been elicited. He advised me that this was so. He confirmed that the applicant was not hoping to elicit further evidence on this issue from the cross examination of the respondent's witnesses.
Therefore I heard submissions from counsel for the applicant and counsel for the respondent on the issue of the application to extend time. At the conclusion of these submissions it was approximately 1.00 pm. I then indicated to the parties that I would consider the matter over the luncheon adjournment and give my decision as close to 2.15 pm as was possible. After the resumption of the luncheon adjournment I indicated that the application to extend time would be dismissed. The effect of making this order was that the Court did not have jurisdiction to continue to hear the application under Section 170EA of the Act. I said I would publish my reasons later but said that I would endeavour to have them published as expeditiously as practicable so that the applicant would have as much time as practicable left, of the period in which to apply for a review of this decision, to consider whether to take such a step. As time commences to run from the date of an order rather than when reasons are published, it is generally in my view undesirable to make orders in the absence of giving reasons at the same time. However, due to the urgency of having to advise the parties of my order and the fact that there are some significant matters to discuss in these reasons, I adopted the course set out.
The history of the matter with respect to the extension of time application and, with respect to the issue of production of documents as set out in my reasons for decision dated 1 May 1996, indicate that the matter has proceeded in an unsatisfactory way. Ideally, the application to extend time ought to have been made by written notice of motion, supported by an affidavit sworn by the applicant which deposed to such matters as were relevant to the application to extend time. The application could have been determined prior to any evidence being heard on the substantive application, even if it was appropriate for leave to cross examine the applicant on his affidavit be given to the respondent. I understand that the applicant's solicitor was only appointed on 19 March 1996 and that this partly explains the reason for the unsatisfactory history.
THE JURISDICTION TO EXTEND TIME
As stated earlier, the jurisdiction to extend time can be found in the previous Section 170EA(3) of the Act. Section 170EA(3) does not specify the factors that the Court should take into account in determining an application to extend time.
Counsel referred me to a number of authorities which have considered this matter.
Generally, the authorities from this Court that were referred to me, cited a judgment of Wilcox J (as he then was) in the Federal Court case of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. In that case his Honour had to consider the circumstances in which an extension of time would be allowed by the Federal Court in bringing an application for orders of review of an administrative decision. The decision concerned Section 11 of the Administrative Decisions (Judicial Review) Act 1977. At page 348 his Honour indicated that this section does not set out any criteria by reference to which the Court's decision to extend time for an application for review under Section 5 of that Act is to be considered. In that context, his Honour set out what he described as principles to guide, although not in any exhaustive manner, the exercise of the Court's discretion, which could be distilled from previously decided authorities.
His Honour set out these principles at pages 348 and 349 of the judgment as follows:
"1.Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. 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" of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty. Ltd. v. Aboriginal Development Commission (1982) 43 A.L.R. 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 A.L.R. 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).
2.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 A.L.R. 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 F.C.R. 287 with Lucic at 414-415 and Hickey v. Australia Telecommunications Commission (1983) 48 A.L.R. 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 A.L.R. 528.
3.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.
4.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.
5.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.
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."
The primary submission of counsel for the respondent was that the "principle" set out in point 1. had not been satisfied. He argued that it is "a precondition to the exercise of discretion in his favour that the applicant for extension show an acceptable explanation of the delay". The respondent submitted that the evidence of the applicant did not show that there was an acceptable explanation of the delay and that therefore the application should be dismissed.
Subsequent cases in this Court have applied the Hunter Valley Developments decision. Counsel for the respondent referred to TWU of Australia v National Dairies Limited (1994) 57 IR 186, a decision of Keely J, Turner v K & J Trucks Coffs Harbour Pty Limited (1995) 61 IR 412, a decision of Beazley J, Szlezynger v Montefiore Homes for the Aged, Fleming JR, unreported, Industrial Relations Court of Australia No. 258/96, 16 June 1996, Bailey v GHE Pty Ltd, Parkinson JR, Industrial Relations Court of Australia No. 545/95, 29 September 1995, Szabo v T T Line Company Limited, Ryan JR, unreported, Industrial Relations Court of Australia No. 624/95, 20 November 1995. Counsel for the applicant also relied on the Hunter Valley Developments' case.
In most if not all of these cases there is a reference to the Hunter Valley Developments case. In TWU of Australia v National Dairies Limited, Keely J quoted the six principles set out by Wilcox J in Hunter Valley Developments and at page 189 said that:
"However, in my opinion the wording of s 170EA(3) is such that it may well be easier for an applicant, under that 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 ie 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 "it is a pre-condition ... that the applicant show an 'acceptable explanation of the delay' " (emphasis added). As the matter has not been argued I shall not express any opinion on the question."
As stated in this paragraph, his Honour did not express any opinion on the questions posed.
Beazley J in Turner K & J Trucks Coffs Harbour at page 418 said that there was force in the prima facie view of Keely J in the TWU case and said that "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". Her Honour, however, found that there was an acceptable delay for the application being filed 50 days out of time. Her Honour said that a delay of this number of days "may seem a lengthy delay" in the "context of a time limit of 14 days", but determined it was just and equitable to grant the extension sought in that case (page 419).
The issue of the principles to apply in an application to extend time was also considered by Marshall J in Brodie-Hanns v MTV Publishing Limited, unreported, Industrial Relations Court of Australia No. 585/95, 31 October 1995. On page 4, his Honour said that:
"The relevant principles which should govern the Court's discretion to extend the time within which an application under s170EA of the Act may be lodged are set out in the decisions of Keely J in Transport Workers Union of Australia v National Dairies Limited (No 2) (1994) 57 IR 186 and Beazley J in Michael Turner v K & J Trucks Coffs Harbour Pty Limited, Industrial Relations Court of Australia, NI 1246 of 1994, 10 August 1995, as yet unreported. In each case the Court applied the tests referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344,349."

His Honour said that in his view these principles were appropriate to be applied in the circumstances of the case before him. His Honour then restated the principles as follows:
"1.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.
2.Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3.Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4.The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5.The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6.Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion."
It can be seen that, with respect to principle No. 1, his Honour endorses the position that prima facie time limits should be complied with unless there is an acceptable explanation of the delay which makes it equitable to extend the time limit.
In the case before him, Marshall J decided that there was an inadequate explanation for the delay in instituting proceedings. His Honour's conclusion was that given this and the prejudice to the respondent that arose from such delay, the notice of motion to extend time should be dismissed. The primary concern of his Honour with respect to prejudice to the respondent was that "the respondent is a small employer which only has one full time and one part time employee. It relies, in part, on subsidies to cover its operating costs. It 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".
The principles restated by Marshall J in the decision of his Honour in Brodie-Hanns v MTV Publishing Limited, support the respondent's submission that the Court will not grant an extension of time unless there is an acceptable explanation for the delay.
In Nelson v Scholle Industries, unreported, Industrial Relations Court of Australia No. 588/95, 17 October 1995, von Doussa J, the parties before his Honour accepted that the Hunter Valley principles applied to an extension of time application under the Industrial Relations Act.
I also note that the Hunter Valley Developments' principles have been applied by Boon JR in Dagleish v Hedland College, unreported, Industrial Relations Court of Australia No. 122/95, 22 February 1995 at page 4; R D Farrell JR in Patricelli v Glenis Stephenson, unreported, Industrial Relations Court of Australia No. 715/95, 16 November 1995 at pages 2 and 3, Murphy JR in Watts v Woolworths (Vic) Ltd, unreported, Industrial Relations Court of Australia No. 164/95, 6 April 1995, Parkinson JR in Bailey v GHE Pty Ltd at page 2, Fleming JR ("as a guide and not an exhaustive list") in Szlezynger v Montefiore Homes for the Aged, unreported, Industrial Relations Court of Australia No. 258/95, 16 June 1995, page 4, and Ryan JR in Szabo v TT Line Company Ltd, unreported, Industrial Relations Court of Australia No. 624/95, 20 November 1995, page 1.
In Patricelli, RD Farrell JR at page 4 said that "assuming there is merit [in the applicant's substantive application] and there is not a countervailing prejudice to the respondent then the application will be granted subject to one proviso, and that is that there must be an acceptable explanation for the delay; an applicant cannot merely sit on their hands knowing of their rights and expect an application to be granted". This statement I think accords with the Hunter Valley Developments' principles.
There are good reasons for a requirement that there must be an acceptable explanation for delay, especially in a case like this one, where reinstatement is sought. Some of the relevant issues include the scheme of the Act being to provide quick and inexpensive resolutions to claims of unlawful termination (Beazley J in Turner at page 418, Murphy JR in Farnell v Ansett Air Freight, unreported, Industrial Relations Court of Australia No. 441/95, page 3 citing Northrop J in Mahnken v Saunders Logging Pty Ltd (1994) 57 IR 237) and the "industrial setting" of employers having to potentially take actions to fill vacant positions, make budgetary decisions and the like in the confidence that the relatively short limitation period has expired (von Doussa J in Nelson at page 8).
I think the respondent's submission is a correct analysis of the position at law. As Fleming JR succinctly said in Szlezynger, at page 4:
"It is the prima facie presumption that proceedings commenced out of time will not be entertained. In order to rebut the presumption, the applicant must show an 'acceptable explanation for the delay' and that it is 'fair and equitable in the circumstances' to extend time".
I also note that, although it is not necessary to consider this aspect of the matter in this case (because of my reasons as set out below), there is authority for the proposition that where the delay in filing an application is through the lack of advice from, ignorance or fault of solicitors or a union this may not be an acceptable explanation for delay; see Boon JR in Porter v Environmental Recovery Services Ltd, unreported, Industrial Relations Court of Australia No. 147/95, 12 April 1995, pages 7/8, Murphy JR in Farnell at page 9 and Watts at page 5.
ACCEPTABLE EXPLANATION FOR DELAY
The background to the extension of time application coming before the Court has been set out earlier in these reasons. When first called upon to explain the delay in filing the substantive application, counsel for the applicant said "The position was that my client was dismissed on or around about 25 October. He sought advice from the union as to his position, and that advice came back on 13 November as to the industrial officer's position. As I understand it, he then approached Maureen Locke [the state secretary of the union] to perhaps take the matter further from another source other than the union". Counsel then said that the applicant spoke to one Tony Thompson, who was described as a lay industrial advocate. Counsel continued that "My understanding is that basically my client went through the material that was fairly extensive with Mr Thompson. Mr Thompson then prepared and filed an application - sorry; my client then filed an application, and basically, probably I assumed [sic] after he had taken Mr Thompson's advice - that was in early January". In answer to a question that I asked of counsel, he advised me that the applicant had been obtaining advice as to whether he should lodge a claim and did not receive the substance of that advice until late December, from Mr Thompson.
I then asked counsel whether anyone had advised the applicant that he needed to file an application within 14 days of the termination of his employment. Counsel took instructions on that matter and said that "He basically was not aware of the 14 day limit until late November and then he was advised by the Court when he contacted them by phone that there was a 14 day period".
Counsel referred to the fact that there was a covering letter by the applicant to the Court, which was filed with his application and referred to the seeking of an extension of time. Counsel for the applicant did not have a copy of that letter. I asked counsel for the respondent whether he had any objection to me looking at the Court file to see whether there was such a letter. He had no difficulty with this. I then looked at the Court file, found the letter in question which was dated 4 January 1996 and handed the letter to counsel for both parties. After this, counsel for the applicant said that one "could see by the letter again my client seems to have laboured under a misapprehension as to, as I said, the timing requirement and I think he has sought to set out in his covering letter to the Court the reason why he should be given the time to file the application. Obviously he is under a misapprehension as to the nature of proceedings, so obviously again, I would say that it would be a substantial injustice if he was basically denied the time to extend the time to file the application".
I make the observation at this stage that if the position was as counsel for the applicant indicated, that an applicant had acted in person and filed his application late because he was simply unaware of the requirement to file the application within 14 days of receiving written notice of termination, this would ordinarily be an acceptable explanation for delay. Where there is a union or solicitors involved, the position may be less clear as my reference to Porter, Farnell and Watts, above shows.
As set out earlier, after discussions with counsel for the respondent, it was agreed that evidence with respect to the issue of the extension of time application, be heard as part of the evidence involved in the substantive hearing.
During the evidence of the applicant on this issue, the letter to the Court dated 4 January 1996 was tendered as Exhibit 3. Omitting formal parts, the letter in its entirety is as follows:
"Firstly let me apologise for not notifying you earlier of my claim against the Commonwealth Bank. I was unaware that a claim had to be lodged within 14 days of my dismissal.
My first reaction after my dismissal was to contact my union as I thought they would be able to assist me. Whilst the State branch have wanted to assist, the Federal body will not assist me in my claim against the Bank.
I then decided to pursue the matter myself but was unsure of the necessary steps. I was under the impression that I would have to collate my evidence, discuss it with a solicitor and then mount my case against the Bank. It was only when I contacted the Industrial Relations Court last week that I was informed the process was so much easier and a lot less time consuming than I had thought.
I am hoping you can assist me.
Thanking you in anticipation."
As I have said, the letter was dated 4 January 1996. The application under Section 170EA of the Act was signed on 2 January 1996. The applicant said in his evidence that he endeavoured to file the application earlier as "I came in and they had the public holiday after the New Year so on the Monday, the day I came to lodge it, it was closed. It was the next working day that I came in". The applicant said this was the "Monday after the public holiday". In cross examination the applicant accepted the document was filed on 8 January 1996, the date stamped on the Court copy of the document. I will make some observations about this evidence at the conclusion of my reasons.
The applicant's evidence in chief relevant to the application to extend time was given at pages 59-62 of the transcript.
The applicant was asked how quickly after 30 October 1995 he sought advice from the Finance Sector Union. He answered that it was "some time after" he was dismissed but that he could not "be explicit". He explained that Mrs Locke, the union state secretary, was "hard to catch". He said that he did speak to Mrs Locke and that she sought advice from the Sydney branch of the union. The applicant said that he could not be explicit with dates but thought that he got advice from the union within six weeks. He agreed with his counsel that it was "quite possible" that he received the advice from the union in mid November. In further answers to questions that I asked the applicant he said that he was able to speak to Mrs Locke, he thought, within a fortnight of his dismissal.
The applicant was then asked by his counsel "Where did you go from there in terms of seeking further assistance with your position as regards dismissal". The applicant said that he rang officers of the Court "to work out whether I could claim unfair dismissal and they told me that I only had 14 days". The applicant was asked when that occurred. He said that it was "prior to Christmas". The applicant was asked whether the court officers made any comment about the capacity to extend time. The applicant said that "They sort of said it was at the Court's discretion". The applicant also confirmed that he filed a covering letter with the application at the suggestion of officers of the Court. The applicant was then asked the reason for lodging the application after Christmas. The applicant said "Only that I was getting advice from different people and I needed to work out whether I had a case or not, so if they said, 'You don't have a case' I couldn't see the point in lodging an application".
The applicant confirmed that he had also spoken to Mr Thompson about his application but that he lodged the application himself. As stated earlier, the applicant's solicitors were not appointed until some time after the filing of the application.
This was the end of the examination in chief on the issue.
The cross examination of the applicant on this issue was quite extensive, covering pages 138 - 150 of the transcript.
The cross examination began by counsel for the respondent making reference to the instructions that counsel for the applicant had taken at the commencement of the proceedings when he indicated to the Court that the applicant had learned about the 14 day period in late November 1995. The applicant answered to this "I rang the Court and the Court sort of explained". The applicant then said that "he thought" that he accepted that this was in late November. He agreed that about a month after receiving the notice of termination that he was aware there was a 14 day period within which to bring an application. He agreed that at that time he was aware that he was then out of time.
The applicant said that it was within a week of ringing the Court that he came in and picked up an application form. However, he reiterated that he was aware from the time of his telephone call to the Court that the application should ordinarily have been filed within 14 days. The applicant said that "They suggested to me that if I did a covering letter and explained the situation, the Court had the discretion to - to hear claims that were beyond 14 days and I've heard of them hearing claims up to seven months after people have been dismissed".
Counsel for the respondent then asked questions directed at ascertaining the applicant's knowledge of whether it was a "simple procedure" to lodge an application with the Court. The applicant said that officers of the Court said "Fill the form in, and when I got the form I thought this is a simple form, and they said do a covering letter".
With respect to the collection of the form from the Court, the applicant said that "As soon as I heard there was a 14 day period, I got in there as quick as possible". The applicant confirmed a little later that "I thought I should get it in as quick as possible". He also elaborated that "I thought the form was fairly straightforward and very easy to understand". He also said that he did not need any assistance to fill the form in.
Counsel for the respondent then asked why it took "five weeks" from finding out about the 14 day period to fill in a simple form and file it with the Court. The applicant commenced his answer with "Alright stop I thought I'd actually be the person standing up. I wasn't aware there was going to be solicitors involved and all that, so I needed to get some advice from people how the system worked". The applicant was interrupted by counsel who asserted that the applicant did not need to talk to a solicitor to fill the form in. The applicant answered that he needed to seek advice as to how the proceedings would go and what was involved. The applicant said that he thought he needed to get some "independent advice".
Counsel then cross examined on the issue of the Court normally being a no costs jurisdiction. The applicant said that the Court provided him with an attachment to the application that he collected from the Court which explained that, in the words of the applicant, "Costs aren't generally awarded except when it's a vexatious claim". The applicant then said that "Yes, that's why I needed to work out, was my claim going to be vexatious or not. If it was, obviously I wasn't going to proceed". The record of this evidence is at page 141 of the transcript. At page 142 the applicant was asked about the assistance he had obtained from the state branch of the union. He confirmed that he did not need the assistance of the union to fill in the application. He was then asked whether he asked the union about vexatious and without cause proceedings. The applicant answered that he did not. Counsel then asked:
"So the advice you were seeking had nothing to do with this question of costs, as you suggested a moment ago --- I never suggested it was anything to do with costs. You suggested that."
This answer was in contradiction of the answers the applicant gave on this issue at page 141 as quoted above.
The applicant also said that Mrs Locke did not know or advise him of the 14 day time limit and that he was "amazed" and "quite shocked about that". Mrs Locke was not called to give evidence to support this evidence of the applicant. This has been said in some circumstances to be significant, but as my further reasons indicate does not need to be considered in this case; see Szabo v TT Line Company Ltd, Ryan JR, unreported, Industrial Relations Court of Australia No. 624/95, 20 November 1995, page 5.
The applicant was then cross examined about his interaction with Mr Thompson. He said that he saw Mr Thompson on several occasions over two or three weeks. The applicant said that "it was after I'd got the documents from the Court". The applicant was asked whether Mr Thompson told him that he should file the application immediately. The applicant then answered "I think it was filed at that stage wasn't it". The applicant, when pressed on this issue, said that he did not know whether he had filed the document by the time he had spoken to Mr Thompson. When further pressed on the issue the applicant agreed that it was "quite possible", that he "never saw Mr Thompson about this form until after it had been lodged" (transcript 44). This contradicted the instructions that the applicant's counsel advised the Court that he obtained from him prior to evidence being lead. These instructions are set out earlier in these reasons. Also, I should mention that Mr Thompson was not called to give evidence about the matter.
When further asking the applicant about the issue counsel for the respondent said "On your evidence now, you did not need the advice of Mr Thompson to lodge that document". The applicant said that "I could have done it without his advice. I mean, anybody can walk ..." (Answer cut off by counsel for the respondent). The applicant then said that he did not know whether he did in fact file the document without the advice of Mr Thompson.
In answer to further questioning, the applicant said that he "probably lost six weeks with the local union trying to help me out".
I then asked the applicant the following questions:
"While all that was going on, you knew about the 14 day time limit. The form was simple. Why not just lodge it? --- Because I needed to work out whether my claim was going to be, as I said, vexatious. I didn't want to put in a claim if I had no hope, so I was seeking advice from other people. I needed to get paperwork back from the union so I could show other people. The union had all my paperwork so I couldn't go to somebody and say "I want to claim against the bank", and show them the paperwork. So until I'd shown other people the paperwork - and then I could take my claim from there. Basically, the time did run. I acknowledge, but that was because the union locally - I reckon they wasted 6 weeks.
Did you show anyone the paperwork before you lodged the claim? --- Yes. The union had it. They'd sent it over east and - - -
No, no. Anyone, apart from the union? --- I'm not sure regarding the person the union referred me to. The local union referred me to somebody, but I'm not sure whether he saw that before or after I'd lodged the claim. I can't be 100 per cent sure there. I don't know. As I said, it was Christmas, it was New Year. Those couple of weeks just flew along, because I realised that I had to get my act together fairly quickly because the 14 days had gone."

The internal contradictions within this group of answers is patent.
Counsel for the respondent then cross examined the applicant about the letter which the applicant had written to the Court dated 4 January 1996. The applicant's answers in cross examination on this issue (which took place from pages 146 - 150 of the transcript) were totally unsatisfactory. That this is so, is demonstrated by setting out the full transcript of this evidence below. For ease of reference, the page and line numbers of the Court copy of the transcript are included:
[page 146]
MR KEMP:Thank you. Right. You said there - it is dated 4 January,
20and it says:
First, let me apologise for not notifying you of my claim against the Commonwealth Bank. I was aware [sic] that the claim had to be lodged within 14 days of my dismissal
25
?---I was aware or unaware?
"I was unaware..."?---Yes
30Okay. Well, that is actually not correct, that you were in fact aware by the end of November?---When I got dismissed from the Commonwealth Bank I didn't know I had 14 days.
35No. Hold on a minute. At the end of November, you were aware that you had 14 days; that is your evidence?---You're playing with words again. At the end - when I got dismissed, I didn't know. At the end of November I did know.
Okay?--- Well, maybe not at the end of November.
40
When you wrote on 4 January, you said:
I was unaware that the claim had to be lodged within 14 days of my dismissal.
45
[page 147]
That is incorrect?---At the end of November I may not have known about the 14 days because, as I said, the union - time ran - - -
No.Well, then you are contradicting the evidence that you have given
5earlier?---No. What I am saying is, I am not 100 per cent sure on all those dates. I'm not trying to be evasive.
But your version to this court, given first of all through your solicitor at the beginning, is that you heard about the 14 day period at the end of
10November, and you confirmed that?---That's quite possible.
Now that I am cross-examining you on that, you are starting to try and move from that position?---No. What I am saying is, I can't be specific with those dates; that's all I'm saying.
15
But you were specific, and your solicitor was specific, and it is only now - - -?---No.
- - - that I am starting to put to you some difficult questions that you are
20now uncertain?---Well, I think we didn't actually say the - around the end of November; I don't think we said the end of November. We were - - -
No. I clarified that with you at the beginning. I said, "That is what your solicitor said," and then you confirmed that it was by the end of
25November that that had happened. I was very careful with that? --- Okay. Well, that's quite possible, but, as I said, those 6 weeks, time just slipped by. And it's quite possible it was in November
Then your explanation is:
30
My first reaction after my dismissal was to contact my union, as I thought they would be able to assist me.
?---Yes.
35
Then you said:
The Federal body will not assist me in my claim against the bank.
40?---Yes.
Okay. That was basically what we discussed before and you had discussed with Mr Challenor [an employee of the respondent]?---Yes.
45So that was your first reaction. You then said:
[page 148]
I then decided to pursue the matter myself, but I was unsure of the necessary steps.
?---Yes.
I was under the impression that I would have to collate my evidence, discuss it with a solicitor and the mount my case against the bank.
?---Yes.
10
Okay. Now basically, you remember - you said that when your picked up the form, you realised that that was not the case?---What wasn't the case?
Well, you said that you did not - you realised that you were wrong in
15thinking that you had to collate evidence, discuss it with a solicitor and then mount a case. You said it was a simple matter of filling in a form?
---Well, on filling that form and doing the covering letter, it was very simple, I thought.
20So from the moment you picked up that form you knew it was a simple matter?---Well, the officers of the court had indicated it was a simple process.
Okay.So in fact that is slightly misleading because you were not - you then go on and say:
It was only when I contacted the court last week that I was informed the process was so much easier; a lot less time-consuming than I had thought.
30
Now, that is a reference to what you have told us was the November conversation with the court?---What I thought I would have to do was sit down with a solicitor, thrash it out over a couple of weeks and then mount a court case, but it doesn't work like that.
35
Okay. Let us just go back to that. By the end of November you knew that there was a 14 day period; that is what your evidence has been?---End of November, beginning December, that's quite possible.
40You immediately ran in and got the form?---I rang the court to find out
- - -
You came in and got the form soon after that conversation?---That's possible.
45
Because you knew of the 14 days?---Yes.
[page 149]
That was the beginning of December?---Yes.
Okay.Now, when you write on 4 January and say:
5
It was only last week that I was informed that it was so much easier and less time-consuming ...
that is misleading - deliberately misleading?---I'm lost here where you're
10going with all this.
Okay. On 4 January, we have ascertained that you learnt about how easy it was to bring this claim at the beginning of December?---Yes.
15Then you write to the court and say:
I only discovered this last week.
And that is written on 4 January?---Yes.
20
You say, "I discovered it last week." You do not say, "I only discovered that at the beginning of January." Why not? Sorry; "...at the beginning of December." Why not?---So I found out late December - late November, early December that I had 14 days to lodge the - - -
25
Yes?---And then you're saying it took me till January.
No. What we have said, and you have accepted, is that by the beginning of December you were aware how easy it was to bring this application.
30You have accepted that and that is your evidence?---That's what you're telling me.
Well, do you not accept that that was your evidence?---Well, I don't know where we are going with this. I am confused.
35
THE J.REGISTRAR: Well, do not worry about where we are going. Just answer individual questions?---Well, as I said, this - - -
Just put the question again, Mr Kemp.
40
MR KEMP: You were aware how easy it was by the beginning of December; how easy it was to bring this claim by the beginning of December?---If I had spoken to the officers of the court and they said, "Pick the form up, do a covering letter," then I realised what I had to do.
45
[page 150)
If we accept that your evidence so far has been that that was - the phone call was about the end of November, and you would have picked up the form at the beginning of December because you knew that. When you write on 4 January, you had actually learnt about that a month before,
5but you said in that letter:
It was only when I contacted the court last week...
?---What was the date of the - - -
10
4 January 1996?---What date was the form signed? The application?
The form was signed - the application was signed on 2 January and it was lodged on the 8th, and there is a pencil mark on the letter that it was
15received on 8 January?---Yes.
So when you made that statement you were in fact misleading the court?---I don't know where you're going.
20Well, what I am saying is, you said to the court, "You should give me an extension of time because I only learnt how easy it was last week, and that was the reason for my delay." In fact, you had learnt about that a month before and you were not disclosing that to the court?---I was getting information from all sorts of people, and as it was the first time I
25dismissed, I needed to sit down and collate that information and then get my next step. So I am not 100 per cent with who I saw when, what was said, and then I took a breather to get my facts together and then go the next step. I can't help you with the dates, I'm sorry.
30 Thank you, sir. I have no further questions.
I make the following observations about this part of the cross examination:
(1)I had the opportunity of observing the applicant give evidence for in excess of one day. My clear impression is that the applicant is a clever and quick-witted person, who generally responded with rapid, articulate and detailed answers to questions put in examination in chief and cross examination. For this reason, I do not accept that the applicant was having any genuine difficulty in understanding the questions of counsel as he asserted at pages 146 line 35, 149 lines 10 and 33 and 150 line 17. I think that the applicant's suggested confusion at the questions being put to him was a deliberate attempt to try and obfuscate the questions which counsel for the respondent, quite properly, wanted answers to.
(2)I consider that quite contrary to what the applicant asserted at page 147 line 5, that he was "trying to be evasive".
7(3)As can be seen, in the answers the applicant gave in this part of the cross examination, he attempted to evade answers that he had previously given with respect to times and other matters. I refer, for example, to pages 146 line 39, 147 line 5, line 10, line 13, line 26, 148 line 37 and line 43, 149 line 30 and 33 and 150 line 26.
(4)In my opinion, the letter to the Court dated 4 January 1996 was misleading in the following respects:
(a)In the first paragraph the applicant says that "I was unaware that a claim had to be lodged within 14 days of my dismissal". Whilst this may have been true at the time the applicant was dismissed, it was no longer true, as of, at latest, early December 1995 when the applicant said he was advised of the 14 day time limit by officers of the Court. To simply assert in a letter on 4 January 1996 that the applicant was unaware that a claim had to be lodged within 14 days was therefore misleading.
(b)In the third paragraph of the letter, the applicant states, "It was only when I contacted the Industrial Relations Court last week that I was informed the process was so much easier and a lot less time consuming than I had thought". This was also misleading in that the applicant said he was advised of the process involved in filing an application, by officers of the Court in, at latest, early December 1995. Not long after that, the applicant collected the application form from the Court and was then aware that the filing of the application was a "simple procedure". Therefore it was misleading to write to the Court that it was "only when I contacted the Industrial Relations Court last week", that he was informed that the process was much easier and less time consuming than he thought. Indeed, there is no evidence that the applicant did contact the Court "last week", when he wrote the letter dated 4 January 1996. On his evidence, his conversations with officers of the Court took place in late November or early December 1995.
Therefore, in at least two important particulars, the letter to the Court dated 4 January 1996 was misleading. I am left with the clear impression that the letter to the Court was deliberately misleading.
I asked Counsel for the applicant about the letter when he made his closing submissions on the issue of the application to extend time. He was frank enough to concede that the letter to the Court was "a bit misleading".
However, counsel for the applicant argued that the Court could properly extend time in favour of the applicant. He argued that principle 1 as set out in the Hunter Valley Developments' decision had been met in that there was an acceptable explanation for the delay. In his closing submissions he put the acceptable explanation as being the seeking of advice from the union and then seeking further advice from Mr Thompson given the applicant's concern about Court costs and the procedures involved in making an application to the Court.
I have reviewed the evidence of the applicant on this issue in some detail. In my view, the evidence clearly does not bear out the submission made by counsel for the applicant. There is simply no credible explanation before the Court explaining the delay between the time when the applicant received the application form from the Court (on the applicant's admission in, at latest, early December 1995) and the time when the Court closed for business prior to Christmas 1995, which was at close of business on 22 December 1995. This is a period of about three weeks for which there was no credible explanation to the Court as to why the applicant did not file his application. This period is in itself a longer period than the ordinary time limit for making an application. Whilst a delay of three weeks may, nevertheless, not necessarily be considered to be a lengthy delay, the Court is left with the position that there is no credible explanation for the delay. Therefore, consistent with the authorities cited earlier in these reasons, a "pre-condition" to the Court allowing an extension of time allowed for the application to be filed has not been met. For this reason alone the application to extend time must be refused.
In addition, there is another very serious matter. This is that the applicant in his letter to the Court dated 4 January 1996 has, as I have found, deliberately attempted to mislead the Court in two material respects. The Court cannot accept such behaviour. To extend time in such circumstances could well be perceived to be condoning this behaviour of the applicant. This is a further, albeit independent, reason why the Court should not allow the applicant to extend time.
These are the two essential reasons why I refused to allow the application to extend time.
With respect to the remaining five principles set out in the Hunter Valley Developments' case and the Brodie-Hanns' case, I comment as follows. My view as to principle 2 is that this was a case where the decision maker was allowed to believe that the matter had been finally concluded because there were no steps taken by the applicant prior to the lodging of the application which would make the respondent aware that the applicant contested the termination of his employment.
With respect to principles 3 and 4, counsel for the respondent did not rely on any prejudice of the respondent in defending the proceedings, in opposing the extension of time application. This concession was rightly made in my opinion. The delay involved was not such as to cause the difficulties occasioned by fading memories. Further, much of the relevant evidence was documentary. However, as principle 4 indicates, the mere absence of prejudice is not enough to justify the grant of an extension.
Principle 5 indicates that the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. Counsel for the respondent made submissions that the application was so devoid of merit that for this reason also, the application to extend time should not be allowed. In all the circumstances, I do not think it appropriate to comment at length on this matter in the context of the application to extend time. The matter will be considered further when I decide an application for costs which has been made by the respondent. It is sufficient to state at this stage that any view that I may have as to the merits of the substantial application were not such as to affect my decision on the extension of time application against the applicant.
Principle 6 involves general considerations of fairness. I do not consider that there were any considerations of fairness which would affect "other persons otherwise in a like position" to the applicant relevant to the exercise of the Court's discretion. This was a case which really only affected the applicant and not others.
These are, therefore, the reasons which I undertook to later publish for dismissing the applicant's application to extend time under Section 170EA(3)(b).

DATE OF THE REGISTRY BEING OPEN

I quoted earlier the applicant's evidence that "the day [he] came to lodge" the application the Court was closed for "the public holiday after the New Year". He implied that it was "the next working day" he lodged the application. He said this was the "Monday after the public holiday". The 1st of January 1996 was a Monday. There was a public holiday that Monday. There was no public holiday on the day "after" that. The registry of the Court was open on 2 January 1996, 3 January 1996, 4 January 1996 and 5 January 1996 (see Order 3 rule 6 of the Industrial Relations Court Rules). All of these dates are, of course, prior to 8 January 1996. The registry was closed from the close of business on 22 December 1995 until 28 and 29 December 1995 when the registry was again open. The applicant did not satisfactorily explain why he did not file the application on any of these six days on which the registry was open after Christmas and prior to 8 January 1996. Although I think it appropriate to mention this, I did not appreciate it when I made my decision to dismiss the application for an extension of time and therefore these matters did not form part of my reasons for decision.
PRODUCTION OF DOCUMENTS ISSUE
In my reasons published on 1 May 1996 in this same matter, I said that counsel for the respondent did not make clear the use to which he wanted to put the documents in question prior to my making an order regarding that application. I have now seen from pages 19 and 20 of the transcript that I discussed with counsel for the respondent his desire to possibly use the documents in question in the cross examination on the extension of time issue. I apologise to counsel for this oversight in my reasons. However, as counsel will appreciate now that production of the documents was ordered on 6 May 1996 with respect to the costs issue, the documents do not make any reference to the question of time limits and therefore would not have assisted counsel in cross examination.
I certify that this and the preceding thirty three (33) pages
are a true copy of the reasons for decision of
Judicial Registrar Ritter as recorded in the transcript
and revised by the Judicial Registrar
Associate:
Dated:
APPEARANCES
Counsel appearing for the applicant:                   Mr A Lynn
Solicitors for the applicant:  Andrew Lynn
Counsel appearing for the respondent:               Mr S Kemp
Solicitors for            the respondent:  Corrs Chambers Westgarth
Dates of Hearing:  23 March & 6 May 1996
Date of Reasons for Judgment:  14 May 1996

[1996] IRCA 192

14 May 1996