CATCHWORDS INDUSTRIAL LAW - UNLAWFUL TERMINATION - Application for an extension of time to file application Industrial Relations Act 1988 ss 170 DE, 170EA, 170EE Administrative Decisions (Judicial Review) Act s 11 Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 Transport Workers Union of Australia v National Dairies Limited(1994) 57 IR 183 James Lewis Aitken -v The Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (Lee J, unreported, IRCA no 352/95, 7 August 1995) MARGARET ANNE HOGG -v- JAMES HARDIE BUILDING PRODUCTS PTY LTD No. NI 3003 of 1995 COURT: PATCH JR PLACE: SYDNEY DATE: 25 SEPTEMBER 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. NI 3003 of 1995 BETWEEN: Margaret Anne HOGG Applicant AND: JAMES HARDIE BUILDING PRODUCTS PTY LTD Respondent REASONS FOR JUDGMENT (Delivered ex tempore - revised from transcript) 25 September 1995 Patch JR There are two motions before the Court, which are related. The first is a motion (moved instanter) from the applicant seeking the leave of the Court for an extension of time under section 170EA(3)(b) of the Industrial Relations Act 1988 ("the Act"), to file her application and that motion seeks the leave of the Court to file the application by the date upon which it was filed in court, namely 25 July 1995. The second motion before the Court is by way of notice of motion to dismiss the application, as the application has been filed out of time. In the case of Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344, his Honour Wilcox J, in reference to section 11 of the Administrative Decisions (Judicial Review) Act 1977 (Commonwealth), listed a number of factors which a court should take into account in respect of an application for an extension of time in respect of that act. Those factors are set out on page 348 and 349 of his Honour's judgment, and are as follows: " 1. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so. The "prescribed period" .......... is not to be ignored.. Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained. It is a pre-condition to the exercise of discretion in his favour that the applicant for an extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time. 2. Action taken by the applicant, otherthan the commencement of the proceedings, to indicate that he or she contests the validity of the decision, "is relevant to the consideration of whether an acceptable explanation for the delay has been furnished." 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.. 4. However, the mere absence of prejudice is not enough to justify the grant of an extension. 5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. 6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of the exercise of the court's discretion.." In the case of Transport Workers Union of Australia v National Dairies Limited (1994) 57 IR 183, his Honour Keely J considered what his Honour Wilcox J had said in Hunter Valley Developments in respect of an application for time under section 170EA(3) the Act. His Honour regarded them as giving considerable guidance to the Court in respect of applications for extension of time under the act. He did say, however, at page 189 this: "However, in my opinion the wording of section 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 section 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 is a precondition ..... that the applications show an acceptable explanation of the delay." As the matter has not been argued I shall not express any opinion on the question." In the cases of Sandhu and Joginder v Pacific Dunlop Tyres Pty Limited and Goodyear Tyres Pty Limited (matter numbers VI/1890 and VI/1891 of 1995 unreported, Parkinson JR, 7 July 1995) the Judicial Registrar in reference to the Act said this: "Whilst the applications were filed some five months out of time this legislation is beneficial legislation and notwithstanding the time limits provided for, the absence of prejudice to a respondent is in my view a significant factor in the exercise of the discretion pursuant to section 170EA(3) of the Act." In my respectful opinion the Judicial Registrar was right. There is a significant difference between applications under section 170EA(3) of the Act, and applications under section 11 of the Administrative Decisions (Judicial Review) Act, as referred to by his Honour Wilcox J in the Hunter Valley case. But looking at the principles set out by Wilcox J, I do accept that it is a precondition to the exercise of discretion in the applicant's favour that the applicant for an extension show "an acceptable explanation for the delay" and that an applicant show that it is "fair and equitable in the circumstances" to extend time. The applicant's employment was terminated on 8 February 1995. Shortly before that time she had been notified that she needed extensive surgery which requires hospitalisation. That surgery occurred on 21 February 1995 and she remained in hospital until about the end of March. After that time, according to her evidence, which I accept, her primary concern was for some considerable time her health. This is natural as she had undergone extensive surgery of a nature that could well have had considerable emotional ramifications as well as physical ones, namely, a hysterectomy and a bilateral salpingo-oophorectomy (removal of uterus and both tubes and ovaries). It is natural that the physical effects of such extensive surgery would continue well after the time she left hospital and I accept her evidence when she said that. I also accept her evidence which was to the effect that the emotional effects of that surgery continued as well. However, by some time in June or late June, the applicant began to focus her mind on her situation again, in particular, the termination of her employment and, to use her words, she became "more and more angry about it". She consulted a solicitor on 17 July 1995 and an application under 170EA was filed in this court on 25 July 1995. I accept that some of the period in June and July was a period in respect of which the applicant does not have an acceptable reason for the delay in filing of the application. Nonetheless, for the considerable majority of the time up until at least the middle of June, and perhaps a bit later, the applicant's medical and emotional condition provides an "acceptable explanation for the delay". In respect of prejudice to the respondent, the only evidence before the Court as to prejudice is an assertion in an affidavit by an officer of the respondent, Mr David Finch, that an extension of time "would be prejudicial to the interests of the Company". The nature of that prejudice is not set out, and nor is there other evidence as to the prejudice. Mr Finch also says that an extension of time "will produce inconvenience for the Company". The nature of that inconvenience is not set out, and there is no other evidence as to that inconvenience. Nonetheless, I accept that there would be some inconvenience and prejudice to the respondent if reinstatement were to be ordered. It is probable that some other person or persons is now performing the tasks formerly performed by the applicant. An order for reinstatement of the applicant would therefore be unlikely as it would be likely to be impracticable due to that fact and due to the passage of time. The type of prejudice sought to be advanced by the respondent, namely costs, is exactly the sort of "prejudice" that would be suffered by any respondent to any proceedings whether or not the application in respect of those proceedings was filed promptly or late. I therefore do not regard it as "prejudice" of a nature relevant to this application. As to the merits of the application the applicant received two months pay in lieu of notice and four months retrenchment or redundancy payments. As redundancy payments are taxed at a lower rate than compensation payments under section 170EE(2) would be taxed, the applicant has received, at least after tax, payments which would exceed the payments that she would have received if the Court were to order the maximum of six months compensation. Nonetheless, the applicant is entitled according to the decision of Lee J in James Lewis Aitken -v The Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (unreported IRCA no. 352/95, 7 August 1995), to compensation for "injured feelings", "stress" and the like following on an unlawful termination. The evidence establishes a prima facie case at least that the termination of the applicant's employment was "unjust" within the meaning of section 170DE(2) of the Act because on her version of the events she was not given any warning that her employment was in jeopardy before she was notified of the termination of that employment. Whether or not that is established at the end of the hearing of the matter is something else and I make no finding in respect of that. Nonetheless, there is therefore merit, at least at a prima facie level, in the applicant's case because there is evidence capable of establishing an unlawful termination of employment, and evidence capable of establishing an entitlement to compensation in respect of the decision of his Honour Lee J, even though the applicant has on the evidence before me not suffered any direct economic loss to date. I note here that she may be suffering from an ongoing economic loss, in respect of which she could be entitled to compensation, despite the payments referred to above. I have not referred to all of the factors set out by his Honour, Wilcox J, in the Hunter Valley case, but I do take note of all of them. In my opinion, the balance of justice in this case, due to the fact that most of the delay has been acceptably explained, is in allowing the application for an extension of time, and dismissing the motion to dismiss the application, and I so order. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch. Judicial Registrar Date: 29 January 1996