Industrial Relations Commission of New South Wales in Court Session CITATION : Vierow v Ridge Consolidated Pty Ltd [2002] NSWIRComm 60 APPELLANT: Inspector Vierow PARTIES : RESPONDENT: Ridge Consolidated Pty Ltd FILE NUMBER: IRC 1278 of 2002 CORAM: Wright J President Appeal - Practice and procedure - Application for extension of time to lodge appeal against acquittal - Occupational health and safety - Appeal lodged five days out of time - Concession by Respondent - Mistake by legal representative as to time limit for lodging appeal - Application granted - Costs reserved. CATCHWORDS : Practice and procedure - Appeal - Application for extension of time to lodge appeal against acquittal - Occupational health and safety - Appeal lodged five days out of time - Concession by Respondent - Mistake by legal representative as to time limit for lodging appeal - Application granted - Costs reserved. Occupational health and safety - Practice and procedure - Appeal - Application for extension of time to lodge appeal against acquittal - Appeal lodged five days out of time - Concession by Respondent - Mistake by legal representative as to time limit for lodging appeal - Application granted - Costs reserved. LEGISLATION CITED : Industrial Relations Act 1996 s 197A Occupational Health and Safety Act 1983 s 48 Coffey Engineering Pty Ltd v Legge (2001) 105 IR 234 CASES CITED : Legge v Coffey Engineering Pty Limited (2000) 103 IR 282 WorkCover v Ridge Consolidated Pty Ltd [2002] NSWIRComm 11 HEARING DATES: 03/18/2002 EXTEMPORE JUDGMENT DATE : 03/18/2002 APPELLANT: Mr W G Roser of counsel WorkCover Authority of New South Wales (Ramya Panagoda) LEGAL REPRESENTATIVES: RESPONDENT: Mr E D Crennan, Solicitor Colin Biggers & Paisley JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WRIGHT J, President Monday 18 March 2002 Matter No IRC 1278 of 2002 INSPECTOR VIEROW v RIDGE CONSOLIDATED PTY LTD Application by WorkCover Authority of New South Wales for leave to extend time to appeal and to appeal against a decision of Justice Peterson given on 8 February 2002 in Matter No IRC 3877 of 1999 JUDGMENT (Extempore) [2002] NSWIRComm 60 1 This is an application for an extension of time to appeal against a decision of Justice Peterson given on 8 February 2002 in WorkCover v Ridge Consolidated Pty Ltd [2002] NSWIRComm 11. The Court has considered the circumstances of this matter as set out in the application and the subject of helpful submissions of Mr Roser of counsel, for the appellant. The Court has also taken into account the lack of opposition by the respondent, represented by its solicitor, Mr Crennan . I consider that in the circumstances the appropriate exercise of discretion would lead to grant of the application. 2 Lest what is said as to the approach of the respondent might not be entirely clear, I should perhaps indicate that I consider the approach taken by the respondent was an appropriate one, even though it was a concession which one could understand not being made in some circumstances, and also make clear that the making of the concession was not the predominant factor in granting the application. Those advising the respondent were obviously very perceptive in the advice they gave, that in the very particular circumstances of this matter, the application was more likely than not to be successful. 3 However, I should perhaps not conclude this matter without adverting to one other matter. True it is that the relevant provision, s 197A of the Industrial Relations Act 1996 can be described, as it was by counsel for the appellant as "unique", however, it is a provision where the likely appellant will almost invariably be either the WorkCover Authority of New South Wales or an officer authorised by the Authority. Indeed, that much is made clear by subsection (2) of s 197A , which provides that the right of appeal against an acquittal given by the section is only available if the original proceedings were instituted by an inspector appointed under the occupational health and safety legislation, or with the consent of the Minister or other authorised officer. In other words, there are certain categories of prosecutor authorised under, for example, the previous statute, that is, s 48 of the Occupational Health and Safety Act 1983, who could not bring proceedings by way of an appeal against an acquittal under s 197A. 4 The difficulty in this matter has, on the evidence, been caused by the fact that in respect of other appeals in occupational health and safety matters from a Judge of the Commission in Court Session to a Full Bench of the Court Session, the period for appeal is 28 days or, in some cases, a period longer than 28 days. One can therefore understand why it might be easy for legal representatives considering the lodgment of an appeal in that situation, to overlook the different provision which is specified in s 197A(5), which provides for the materially shorter period of 21 days. 5 The difficulty for the future, however, is that there is essentially only one class of person who may have recourse to the right of appeal provided by s 197A. That situation will make it increasingly difficult, as a practical matter, for prosecutors to obtain extensions of time to appeal. There have been proceedings of a similar kind recently: see Legge v Coffey Engineering Pty Limited (2000) 103 IR 282, as affirmed on appeal in Coffey Engineering Pty Ltd v Legge (2001) 105 IR 234, although the lawyers acting for the prosecutor who lodged the appeal in that matter were external to the Authority and that is not the situation in the present matter. It may be that the Authority will need to take internal administrative steps to ensure that this judgment and the earlier judgments referred to are drawn to the attention of the relevant officers although that, of course, is a matter entirely for it. 6 The application is granted and, in accordance with the application of the respondent, the question of costs is reserved. _______________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.