General Motors-Holden's Ltd v Di Fazio [1979] HCA 43

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Murphy JJ. General Motors-Holden's Ltd v Di Fazio [1979] HCA 43

ORDER Application for special leave to appeal granted. Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 28 Barwick C.J.

In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs and those prepared by my brother Mason. I agree that special leave to appeal should be granted.

I have come to the conclusion that s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972 S.A. is an Act which prescribes or limits the time for instituting an action within the meaning and operation of s. 48 (1) of the Limitation of Actions Act, 1936-1975 S.A., and that therefore the Industrial Court has jurisdiction to extend the time mentioned in s. 15 (1) (e) and, upon such extension being made, to make the orders authorized by s. 15 (1) (e) notwithstanding the fact that the application therefor was not made within the time prescribed by s. 15 (1) (e). I must confess that I have reached this conclusion with hesitation and reluctance. The conclusion in truth makes a nonsense of s. 15 (1) (e) and of the obvious purpose it has in requiring the Court not to exercise its jurisdiction unless moved within the time prescribed. There are quite obvious reasons for insisting upon the application for reinstatement to be made promptly. But I have felt bound to conclude that the time prescribed by s. 15 (1) (e) may be extended by an exercise of the powers given by s. 48 (1) of the Limitation of Actions Act.

One can only hope that the discretionary power to extend the time for applying for reinstatement will not be exercised as of course but only in cases where justice to both the parties involved allows of that extension. Consequently, I would join with my brothers Gibbs and Mason in dismissing the appeal.