Tom Nauton Thomas v Westpac Banking Corporation [1995] IRCA 490

CATCHWORDS APPEAL - Application for extension of time to lodge an appeal - limited prospects of success - prejudice to other persons. Industrial Relations Court Rules O 52 r 15 - "special circumstances" Jess v Scott (1986) 12 FCR 187 No. NI 3407 of 1995 TOM NAUTON THOMAS v WESTPAC BANKING CORPORATION MOORE J SYDNEY 21 September 1995

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 3407 of 1995 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: TOM NAUTON THOMAS Applicant AND: WESTPAC BANKING CORPORATION Respondent JUDGE: Moore J PLACE: Sydney DATE: 21 September 1995 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The application for an extension of time in which to lodge an appeal 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. NI 3407 of 1995 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: TOM NAUTON THOMAS Applicant AND: WESTPAC BANKING CORPORATION Respondent JUDGE: Moore J PLACE: Sydney DATE: 21 September 1995 REASONS FOR JUDGMENT An application for an extension of time to file and serve a notice of appeal has been made by Mr Tom Thomas. Mr Thomas seeks to appeal against a judgment given by Chief Justice Wilcox on 28 June 1995 concerning an application brought by Mr Thomas as a result of his dismissal from his employment with Westpac Banking Corporation on 5 January 1994. The dismissal followed an incident on 17 December 1993. The proceedings before the trial judge were an application alleging contravention of the Bank Officials' Federal (1963) Award as well as a cause of action at common law brought in the Court's accrued jurisdiction based on an alleged breach of contract and defamation. The proceedings were commenced on 6 December 1994. It is not necessary to detail the findings made by the trial judge and it is sufficient to indicate that the incident on the 17 December 1993 occurred at a lunch attended by Mr Thomas and other employees of the respondent which gave rise to an allegation of sexual harassment of a female employee of the respondent by Mr Thomas. The trial judge found the allegation of sexual harassment was established on the evidence and, as a result, dismissed the application of Mr Thomas in all respects. The judgment given by the trial judge was given ex tempore. Mr Thomas attended at court and heard the judgment being given orally. On 12 July 1995 Mr Thomas' solicitors sought the trial judge's reasons in writing. They were received by his solicitors on 8 August 1995 and the application for extension of time was filed on 25 August 1995. Advice from counsel was sought and obtained in that period. Three days later on 28 August 1995 the notice of appeal itself was filed. The rules of the Industrial Relations Court of Australia deal with the time within which a notice of appeal must be filed. Order 52 r 15 provides: ""15(1) The notice of appeal must be filed and served: (a) within 21 days after: (i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or (iii)any later dated fixed for that purpose by the court appealed from or; (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period fo 21 days referred to in the last preceding paragraph. 15(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. 15(3) An application for extension of time must be made in accordance with Form 54A and be accompanied by an affidavit showing: (a) the nature of the case; (b) the questions involved; and (c) the reason why leave should be given". Mr Thomas did not file the notice of appeal within the prescribed time nor was an application filed within the 21 days referred to in O52 r15(1)(b). Accordingly, the application for extension of time is to be considered by reference to r15 (2) and it is necessary for special reasons to be demonstrated. What is comprehended by that notion was discussed, by reference to the rules of the Federal Court which are in the same terms, by a Full Court of the Federal Court in Jess v Scott (1986) 12 FCR 187. The Court said at page 188: "The respondents' opposition to the application was based substantially upon an argument that the words "for special reasons" in r 15(2) should be given a stringent interpretation. It was urged there was nothing sufficiently special about the grounds of the application." and later: "However at 44 Davies J, referring to sub-r (2) of r (15) said: "The terms of that sub-rule set out a principle which has long been established in the law." Since the cases establish, as we shall show, that leave to appeal out of time is to be determined by the court's view of the demands of justice in accordance with a broad judicial discretion, and not simply upon the application of any verbal formula, this dictum does not support the respondents' argument." I was referred to a number of other authorities dealing with the matters that might be considered when dealing with an application for the extension of time in which to file an appeal but they add little to what is said by the Full Court in Jess v Scott (supra). In the present case the matters I view as of principal relevance are the reasons for the delay in filing the notice of appeal, the possible prejudice that would flow to both Mr Thomas and other persons involved in the litigation if the application for an extension of time is refused or granted and the prospects of success in the appeal. As to the first matter I do not view the explanation given on behalf of Mr Thomas as entirely satisfactory. Mr Thomas attended at court on 28 June 1995. It is not clear from the affidavit evidence in this application whether any legal representative acting on his behalf was also in attendance. I assume there was not. Even accepting the explanation given by Mr Thomas that he did not fully comprehend and absorb everything that was said by the trial judge when giving his reasons, I do not accept that he did not understand the gist of what was being said. He obviously understood the outcome. His explanation of being busy in the following days scarcely provides a satisfactory explanation for the delay in seeking the trial judge's written reasons. Notwithstanding that and notwithstanding the time it took to request and then obtain a copy of the trial judge's reasons in writing, no steps were taken to make application in the manner contemplated by o52 r15 (1)(b). However this delay and the not entirely satisfactory explanation for it would not, in my opinion, ordinarily result in the refusal of an application for an extension of time if the appeal was one of substance and there were not other factors militating against the grant of an extension of time. The judgment of the trial judge makes plain that, in large measure, he viewed the matter as one involving a contest on the facts. One version of the events of 17 December 1993 was proffered by Mr Thomas and another version was proffered by the respondent. The trial judge accepted the version preferred by the respondent. The grounds of appeal raise several issues and each subsumes several of the enumerated grounds. The first concerns the application of s140 of the Evidence Act 1995 (Cth). It is to be contended by Mr Thomas that the trial judge failed to apply s140 which provides; "140.(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject - matter of the proceeding; and (c) the gravity of the matters alleged." It must be accepted, as counsel for Mr Thomas submits, that the trial judge makes no reference to s140. Plainly the allegation made against Mr Thomas was a serious matter and the quality of the evidence necessary to prove it on the balance of probabilities would need to be high. However there is nothing in the reasons for judgment to suggest that the trial judge was not aware of s140 or failed to give effect to its provisions. I was informed that his Honour was referred by Mr Thomas's counsel to both Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 which deal with this issue. I was also informed that the trial judge indicated he understood the submission that was being made on Mr Thomas's behalf by reference to those authorities. There is nothing in the judgment of the trial judge to suggest that any inappropriate standard was applied on assessing the evidence. Accordingly this issue that is sought to be raised in the appeal, appears to me to have little, if any, substance. The next submission again concerns the operation of the Evidence Act 1995 and, in particular, s97 which provides: "97. (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence; or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party." As a matter of fact no notice appears to have been given which expressly adverted to the calling of evidence of the type comprehended by s97. It is clear that the trial judge viewed as relevant the conduct of Mr Thomas prior to the incident on 17 December 1993. At page 12 of his Honour's reasons he says: "Thirdly, the incident is consistent with the prior conduct of the applicant. I doubt that his act had a directly sexual connotation. It seems to me that his attitude towards WP was one which failed to acknowledge her as an equal and as a person worthy of respect. A course of constant putting down and derogative remarks is essentially attempted domination. Sexual assaults often have the same motivation." This matter was identified as one factor that caused the trial judge to prefer the female employee's account of what occurred rather than that of Mr Thomas. I was informed by counsel for the respondent in this application that all the evidence relied upon by the respondent concerning the past conduct of Mr Thomas was contained in the affidavits filed by the respondent in the proceedings heard by the trial judge and, in particular, in the affidavit of the female employee which was filed on 31 May 1995. This was not disputed by counsel for Mr Thomas. Moreover in the original affidavit filed by Mr Thomas on 20 April 1995 he traversed the history of the relationship between him and the female employee. Whether an allegation of past conduct contained in an affidavit constitutes notice in writing (see s99 and reg 6) is a point that will doubtless have to be decided by a Court in due course. However Mr Thomas was plainly on notice of the allegations of past conduct and I view it as highly unlikely that an appeal, raising this ground, will result in the trial judge's order dismissing the application, being set aside. The last general issue sought to be raised is whether the trial judge erred in his consideration of whether the dismissal of Mr Thomas was harsh, unjust or unreasonable. The relevant award, the Bank Officials Federal (1963) Award, proscribes termination that is harsh, unjust or unreasonable. The contention of Mr Thomas before the trial judge and sought to be raised on appeal is that the enquiries made and investigations undertaken by representatives of the respondent concerning the incident on 17 December 1993 were inadequate and led to the dismissal being of the proscribed character. I have carefully read the reasons for judgment of the trial judge which deal with this matter. They commence on page 14 of the reasons and conclude on page 20. It is ultimately a mixed question of fact and law whether the termination was in a manner proscribed by the award, that is, whether it was harsh, unjust or unreasonable. It is a matter upon which judicial minds might reasonably differ. However the detailed consideration by the trial judge of the allegations and relevant evidence do not suggest that the conclusion reached was an incorrect one. I cannot say with the same confidence as I have said in relation to earlier grounds, that this ground of appeal has only a very slight chance of succeeding. However the prospects of Mr Thomas succeeding on this point are nonetheless limited. This leads to a consideration of other matters. Accepting that there is some limited basis upon which the appeal might succeed other factors arise in considering whether an extension of time should be granted. There is, at best for Mr Thomas, little prospect that the findings of fact made by the trial judge will be disturbed. It thus follows that it is likely that the hearing of any appeal will proceed on the basis that the allegation of sexual harassment arising from the conduct of Mr Thomas was well founded. In my opinion it is appropriate for me to proceed on that basis in determining whether to grant an extension of time. Mr Thomas seeks to have the order made by the trial judge set aside and for a retrial of his application. Having regard to the subject matter of the original application, further delay in the final resolution of this litigation is likely to cause distress to the female employee, others involved in the incident and Mr Thomas himself. Plainly Mr Thomas is prepared to accept that consequence. I accept that he is likely to have been distressed by the judgment and acutely so. Nonetheless the impact of further litigation is a matter I have to weigh in considering whether, in effect, Mr Thomas should be precluded from bringing an appeal. I have decided, in the circumstances, that no extension of time should be granted. The case Mr Thomas wishes to maintain on appeal is a weak one and the prolongation of the litigation will perpetuate distress the original incident caused which almost certainly has been prolonged if not compounded by the litigation itself to this point. In my opinion justice is best served by this litigation being brought to an end and Mr Thomas coming to terms, however reluctantly, with the judgment of the trial judge and endeavouring, as best he can, to put the matter behind him. No special reasons have been demonstrated. The application for the extension of time is dismissed. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore. Associate: ...................... Dated: ..../..../.... APPEARANCES Counsel for the Applicant: Mr Sutherland Solicitor for the Applicant:Messrs Champion & Partners Counsel for the Respondent: Ms Ronald Solicitor for the Respondent: Freehill Hollingdale and Page Dates of Hearing: 18 September 1995