William Henry Winter v Australian National Hotels Pty Ltd [1995] IRCA 330

CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether time in which to make an application to review the decision of a Judicial Registrar should be extended - meaning of "special reasons" discussed Industrial Relations Act 1988 s377 Industrial Relations Court Rules Order 74 rule 2 Jess v Scott (1986) 12 FCR 187 WORDS AND PHRASES Special reasons WILLIAM HENRY WINTER v AUSTRALIAN NATIONAL HOTELS PTY LTD No TI 193 of 1994 NORTHROP J HOBART 22 JUNE 1995

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA No TI 193 of 1994 TASMANIA DISTRICT REGISTRY B E T W E E N : WILLIAM HENRY WINTER Applicant A N D : AUSTRALIAN NATIONAL HOTELS PTY LTD Respondent COURT: NORTHROP J PLACE: HOBART DATE: 22 JUNE 1995 REASONS FOR JUDGMENT The issue before the Court is whether the applicant should be granted an extension of time in which to make an application to review a decision of a Judicial Registrar in the exercise of powers conferred upon him by section 376 of the Industrial Relations Act 1988. Subsection 377(1) provides, in substance, that a party may apply to the Court to review such a decision but, and I quote the relevant provision: "... An application must be made within the period prescribed by the Rules of Court or such further period as is allowed in accordance with the Rules." Order 74 rule 3, of the Court Rules prescribes the time within which such an application seeking a review is to be made: "(3)For the purposes of section 377(1) of the Act, the time prescribed in relation to an application to review the exercise of a power by a Judicial Registrar is 21 days or such further time as is allowed by the Court or a Judge for special reasons upon application at any time." The words "special reasons" are emphasised. The rule also makes it clear that the application for an extension of time may be made at any time which means it can be made before or after the 21 days from the date of the decision. In the present case the decision of the Judicial Registrar resulting from the exercise of powers delegated to him was made on 13 April 1995. The decision was adverse to the applicant whose claim for a remedy under section 170EA of the Act was dismissed. The applicant desired to seek a review of that exercise of power. His then solicitor applied for legal aid to enable the solicitor to continue to act on the review. On 9 May 1995 legal aid was refused. At that time, more than 21 days had expired from the date of the decision of the Judicial Registrar. At that time the applicant did not know of the 21 day limitation period contained in Order 74 rule 3. The applicant decided to proceed with his application for review and to act on his own behalf. He approached the Federal Court Registrar and heard, for the first time, of the 21 day limitation period within which to bring the application for review. By notice of motion dated 28 May 1995 the applicant sought that the time be extended for the seeking of the review of the decision of the Judicial Registrar made on 13 April 1995. By the same motion he also sought an order that the decision be quashed. I take that motion to encompass an application for a review of the decision of the Judicial Registrar. A review is in the nature of a re-hearing of the matter and the mode of re-hearing is, really, at the discretion of the parties subject to any direction of the Court. The re-hearing may take the form of a complete re-hearing with the applicant calling whatever evidence the applicant desires to call, the respondent calling any evidence it desires to call, and then the Court determining the matter. There may be variations to that in that, having regard to the form of the legislation, the respondent, being the employer, may be required to call its evidence first to establish whether it had a valid reason for the termination. These matters were discussed in a judgment I gave on 18 May 1995 in Hobart in the matter of Johns v Gunns Limited, TI 148R of 1994. Other variations may be that the Court, with the consent of the parties, may proceed on the evidence which was before the Judicial Registrar either with or without the calling of further evidence. It is in this context that it is necessary to turn to Order 74 rule 3 and the reference to special reasons appearing in that rule. Immediately I should indicate that I do not understand why that fetter was imposed by the rule. One can understand the need to have finality in these matters, but at the same time to empower the Court to grant leave to seek a review outside the 21 day period in appropriate cases; in other words, the conferring of an unfettered discretion. But the rule itself has imposed a fetter on the exercise of the discretion by saying that leave can be granted "for special reasons" only. Unfortunately, those words have given rise to a great difficulty of meaning. Issues relating to the meaning and application of those words have taken a lot of time in various courts in various jurisdictions. The words appear in the Federal Court Rules in Order 52 rule 15, in relation to appeals from judgments of a court, in this case the Federal Court of Australia. Appeals of that kind are essentially different from a review under section 377 of the Industrial Relations Act since an appeal in the Federal Court from a judgment of the Court is not a hearing de novo. Order 52 rule 15, prescribes for the time for the filing and serving of a notice of appeal. Under subrule 15(1) the notice may be filed and served within 21 days after the date when the judgment appealed from was pronounced or any later date fixed for that purpose by the court appealed from, or within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days. Order 15(2) is set out: "(2)Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal." (emphasis added) That rule was considered by a Full Court of the Federal Court of Australia in the case of Jess v Scott (1986) 12 FCR 187 consisted by Lockhart, Sheppard and Burchett JJ. Lengthy reasons were given and leave to appeal out of time was given for special reasons. In the course of those reasons reference was made to a very large number of other authorities, both in England and in Australia, dealing with similar problems. The view was expressed that in truth the Court should not be unduly fettered by technicalities and that the important thing was to allow a genuine appeal to be heard even if the reasons for the delay in non‑compliance with the rule may appear to have been of a not very substantial nature. In this regard reference is made to what is said by the Court at pages 195-196 where the warning is given of the danger of restricting matters of this kind in an "entangled web of rules spun out of the Court's discretionary decision". The passage is set out: "It should not be overlooked that r 15(2) enables leave to be given `at any time'; the `special reasons' relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. `Special reasons' must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. As Walsh J emphasised, a discretion to relax the requirement of general rules should not itself become entangled in a web of rules spun out of the Court's discretionary decisions. The tendency in some of the decisions we have discussed to regard a particular factor considered previously, in the light of other circumstances, as requiring the same effect to be given to it in the different situation before a court on a later occasion is a temptation which a court should resist. Decisions are not authorities upon the facts but upon principles; the facts must be regarded as unique to the particular case." The undesirability of having this fetter in relation to a review of the kind presently sought by the applicant is highlighted by the nature of such a review. I have indicated what that is. Further comparisons may be made to other comparable provisions where no such fetter is imposed. First, I go to section 170EA of the Industrial Relations Act. Subsection (1) provides that: "170EA(1) A person (`the employee') may apply to the Court for a remedy in respect of termination of his or her employment." Subsection (3) provides: "(3)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 a Court allows on an application made during or after those 14 days." There is a 14-day period in which the application can be made. That period can be extended, whether that be before or after the 14 days. There is no fetter on the discretion of the Court as to the granting of such leave. Similarly, when one comes to section 377 of the Act, the Act does not impose a time limit except that prescribed by the Rules of Court. It is difficult to see why there should be a limitation or a fetter on the discretion of the Court in these circumstances when the application for a remedy itself and an extension of time is not so fettered. This is so particularly when regard is had to subsection (2) of section 377 which provides: "(2)On an application under subsection (1) or of its own motion, the Court may review a Judicial Registrar's exercise of a power so delegated." (emphasis added) The Court has this right to review a decision of a Judicial Registrar at any time. There is no fetter or limitation on the power of the Court to do that. Order 74 rule (3) has no application to a case where the Court exercises this power of its own motion. It is difficult to see when the Court would do that because normally the Court does not look at the reasons of decision of a Judicial Registrar to see whether the Court should exercise its power to review that decision, but it does illustrate that there is this unfettered power of the Court to do so if attention is drawn to a case where there should be a review. Reference may be made also to another area of law which has certain similarities to section 377. Section 31A of the Bankruptcy Act 1966 empowers Registrars of the Court to exercise certain powers of the Federal Court of Australia in a manner similar to that of Judicial Registrars exercising powers delegated to them by the Court under the Industrial Relations Act. Subsection (6) of section 31A of the Bankruptcy Act provides: "(6)A party to a proceeding in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the rules, or within any further time allowed in accordance with the rules, apply to the Court to review that exercise of power." The relevant part of subsection 31B(7) provides: "(7)The Court may, on application under subsection (6) or of its own motion, review an exercise of power by the Registrar ..." Rule 119A of the Bankruptcy Rules makes provision for the period of time within which a party must apply for a review of the exercise of a power by a Registrar. The relevant provision is subrule (1) which provides: "119A(1) For the purposes of subsection 31A(6) of the Act, the prescribed time is the period of 21 days after the day on which the Registrar has exercised any of the powers of the Court pursuant to subsection 31A(1) of the Act." Subrule (2) provides: "(2)Where a party to a proceeding referred to in subsection 31A(6) of the Act has not applied to the Court to review the exercise of a power of the Court under subsection 31A(1) within the time prescribed under subrule (1), further time for such an application may be allowed by the Court or a Registrar upon such terms as a Court or the Registrar thinks fit." Again, there is no fetter on the discretion of the Court. Having regard to the fact that a review is a re-hearing, it is not appropriate for the Court to consider whether the Judicial Registrar was right or wrong in making the decision made. The Court is left with the limitation or fetter imposed by Order 74 rule 3, "for special reasons". One is concerned with the views expressed by the Federal Court in Jess v Scott, and the need to see justice to be done between competing parties. There is nothing before the Court to show any particular injustice being caused to the respondent if leave is granted. The reason why the application was not made within 21 days here is because of ignorance of the law. Normally ignorance of law on the part of a private citizen is no defence to a case brought against that person, but in a highly technical area like this relating to a procedural matter, the Court would be blind if it did not realise that the average person does not know of the technical requirements of Order 74 rule 3. In all the circumstances, in my opinion, this is a case where the Court should exercise its discretion in favour of the applicant. In those circumstances, the Court orders that the time for the making of the application for a review of the decision of the Judicial Registrar made on 13 April 1995 be extended to 28 May 1995. That is the date on which the motion for review was filed. The Court makes the following directions relating to the hearing of the review: 1. Subject to any direction given by the trial Judge, the review be in the form of a complete re-hearing of the application on evidence presented to the Court; 2. Subject to any direction of the trial Judge, the respondent to commence by leading evidence as to the reasons for the termination; 3. The review be listed for hearing at a time to be determined by the Registrar, it being noted that the anticipated length of hearing is two days. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment of The Honourable Justice R.M. Northrop. Associate: Date: