DE SIMONE CONSULTING PTY LTD v ISON [2000] NSWIRComm 91

Industrial Relations Commission of New South Wales in Court Session

CITATION : DE SIMONE CONSULTING PTY LTD v ISON [2000] NSWIRComm 91 APPLICANT De Simone Consulting Pty Limited PARTIES : RESPONDENT John Ison FILE NUMBER: IRC 2235 of 2000 CORAM: Hungerford J CATCHWORDS : Extension of Time - Application to extend time to appeal - Principles to apply - Process filed 7 months after judgment at first instance and 2 months after final orders made - No satisfactory explanation for delay - Appeal unlikely to succeed even if leave to appeal were granted - Application to extend time to appeal refused - Appeal therefore incompetent - Costs of application to be paid by applicant. LEGISLATION CITED : Industrial Relations Act 1996 s 188 s 189 Long Service Leave Act 1955 s 4(2) s 4(11)(c) s 12 CASES CITED : Van Rooy Machinery Pty Ltd v WorkCover Authority of New South Wales (Inspector Wolf) [2000] NSWIRComm 48 Skelly v Prouds Jewellers Pty Ltd [1994] 53 IR 3 HEARING DATES: 05/31/2000 EXTEMPORE JUDGMENT DATE : 05/31/2000

APPLICANT Mr M S White of counsel SOLICITORS Peter Lustig Melbourne LEGAL REPRESENTATIVES: RESPONDENT Mr D H Patch of counsel SOLICITORS Mr J Morton Gillis Delaney Brown

JUDGMENT: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Wednesday, 31 May 2000 Matter No IRC 2235 of 2000 DE SIMONE CONSULTING PTY LIMITED v JOHN ISON Application to extend time to appeal against a decision of a Local Court constituted by an industrial magistrate, Ms P Staunton, given on 2 March 2000 in Matter No CIM 947 of 1998. JUDGMENT (extempore) 1 This is an application by De Simone Consulting Pty Limited under s 189 of the Industrial Relations Act 1996 to extend time to appeal. The appeal is sought to be brought against an order made on 2 March 2000 by a Local Court, constituted by Ms P Staunton sitting as an industrial magistrate, for the payment to John Ison of proportionate long service leave in the amount of $9,006.65 due under s 4(2) of the Long Service Leave Act 1955. Her Worship assessed costs in the sum of $8,500 in favour of Mr Ison and ordered the payment of interest. The appeal challenges the whole of the orders so made. 2 The present application to extend time was filed on 22 May 2000 with a supporting affidavit from the applicant's solicitor and together with the proposed application for leave to appeal and appeal. Given the time for filing an appeal is 21 days under s 189 of the Industrial Relations Act , the appeal has been brought just on 2 months late. However, it is necessary to point out that her Worship actually gave judgment in this matter on 7 October 1999 as to the substantive issue concerning the long service leave payment and it was the remaining issues as to costs and interest which were dealt with on 2 March 2000. In that sense, then, the appeal against the long service leave issue was brought nearly 7 months late. However, formal orders were made on all matters on 2 March 2000, albeit orders on the long service leave payment arguably were made on 7 October 1999; for present purposes I am prepared to take the operative date as being 2 March 2000. Of course, the fact that judgment or reasons for judgment were delivered on 7 October 1999 will be a relevant discretionary matter in considering the question of an extension of time. 3 In the application to extend time the reasons why the appeal was not filed within time were stated in the following way : 1. The orders of Industrial Magistrate Staunton were given in transcript on 2 March 2000.