Industrial Relations Commission of New South Wales in Court Session CITATION: Steven Grzazek v Narbud Pty Ltd t/as The Fitzroy Tavern [2005] NSWIRComm 24 APPLICANT Steven Edward Grzazek PARTIES: RESPONDENT Narbud Pty Ltd t/as The Fitzroy Tavern FILE NUMBER(S): IRC 5238 of 2004 CORAM: Boland J Unfair Contract - Interlocutory proceedings - Notice of motion - Practice and procedure - Whether application for relief pursuant to s 106 of the Industrial Relations Act 1996 executed by applicant's solicitor prior to expiry of 12 months cut off period in s 108B of the Industrial Relations Act 1996 but which was not received by the Industrial Registry could be regarded as having been filed in circumstances where the applicant filed the application after the period prescribed by s 108B - Rule 8 of Industrial Relations Commission Rules 1996 considered - Section 170 of the Industrial Relations Act 1996 considered - Motion granted - Application filed after prescribed cut-off period set aside. CATCHWORDS: Practice and procedure - Interlocutory proceedings - Notice of motion - Whether application for relief pursuant to s 106 of the Industrial Relations Act 1996 executed by applicant's solicitor prior to expiry of 12 months cut off period in s 108B of the Industrial Relations Act 1996 but which was not received by the Industrial Registry could be regarded as having been filed in circumstances where the applicant filed the application after the period prescribed by s 108B - Rule 8 of Industrial Relations Commission Rules 1996 considered - Section 170 of the Industrial Relations Act 1996 considered - Motion granted - Application filed after prescribed cut-off period set aside. Government and Related Employees' Appeal Tribunal Act 1980 Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 LEGISLATION CITED: Legal Profession Act 1987 Supreme Court Rules 1970 Roads and Traffic Authority v Franks (Clarke JA, No 40480 of 1995, 11 December 1995, BC9501917) CASES CITED: Van Aken v Camden London Borough Council [2003] 1 All ER 552 HEARING DATES: 02/03/2005 DATE OF JUDGMENT: 02/11/2005 APPLICANT / RESPONDENT ON MOTION Mr M Rush of counsel Solicitor: Mr J Wilton Bamford Marcellos O'Connor LEGAL REPRESENTATIVES: RESPONDENT / APPLICANT ON MOTION Mr B Cross of councel with Mr P Ryan Australian Hotels Association (NSW) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 11 February 2005 Matter No IRC 5238 of 2004 STEVEN GRZAZEK v NARBUD PTY LTD T/AS THE FITZROY TAVERN Application under section 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT [2005] NSWIRComm 24 1 By way of notice of motion the respondent in these proceedings seeks to have the originating process filed on 31 August 2004 by Steven Edward Grzazek, the applicant in these proceedings, set aside. The respondent also seeks a declaration that an application cannot be made by the applicant for relief under s 106 of the Industrial Relations Act 1996 in respect of the contract of employment that is the subject of these proceedings. In respect of costs, the respondent seeks costs on an indemnity basis. 2 It is the case that solicitors for the applicant, Bamford Marcellos O'Connor, filed a summons for relief pursuant to s 106 of the Act on 31 August 2004. The applicant had been employed by the respondent as a hotel/night club manager at the Fitzroy Tavern in Tamworth. He commenced his employment on or about 24 June 2003. The summons contended that: On or about 18 August 2003 the Respondent terminated the Applicant's employment citing the Applicant's failure to discriminate and prevent Aboriginal and Torres Strait Islander persons from entering upon and remaining upon the premises. The applicant alleged unfairness and sought compensation for economic loss, and hurt, humiliation and distress in an amount of about $34,000. 3 In seeking to have the summons for relief set aside the respondent contended that the application was not competent to invoke the jurisdiction of the Court by virtue of s 108B. That section provides: 108B Time for making application (1) An application for an order under this Division in relation to a contract that has been terminated must be made not later than 12 months after the termination of the contract. (2) The Commission does not have jurisdiction to extend the time for making any such application or to accept an application made after the time prescribed by subsection (1). 4 There can be no doubt that the summons filed on 31 August 2004 was filed more than 12 months after the date of the termination of the applicant's contract of employment, i.e., 18 August 2003. The applicant, however, adduced evidence by way of an affidavit of John Rossiter Wilton, the solicitor with carriage of the applicant's case to the following effect: · On 13 August 2004 he executed the applicant's summons for relief and drafted a letter to the Registrar of the Commission dated 13 August 2004 enclosing the summons and a cheque for the filing fee. He placed the letter and three copies of the summons and a certificate pursuant to 198L of the Legal Profession Act 1987 in an envelope and wrote on the front of the envelope, "Industrial Relations Commission of NSW DX 874 SYDNEY". He then sealed the envelope with tape and placed it in the office mail basket used for items to be sent through the Document Exchange. Mr Wilton made an entry in his mail book under the date"13/8/04": "IRC" "Grzazek (106)". A copy of the entry was exhibited to the affidavit. · On 30 August 2004 Mr Wilton made a telephone call to the Commission to obtain a file number for the summons. He was informed by an officer of the Registry that the summons "hasn't been processed or it has been lost but its not on the system." Mr Wilton sent another copy of the summons and certificate under s 198L by way of the Document Exchange. Shortly thereafter he received a telephone call from a person identifying himself as the Deputy Industrial Registrar who was alleged to have said words to the effect "We have your 106 claim in the matter of Grzazek and Narbud Pty Limited with your letter, it is a very unusual situation you have but we are going to file it anyway. Good luck." Mr Wilton subsequently received sealed copies of the originating process and served them on the respondent by way of Express/Registered Post. Mr Wilton was cross-examined by counsel for the respondent. 5 It may be seen from the evidence in the proceedings that the location at which the applicant's application executed by Mr Wilton on 13 August 2004 was last seen was the office mail basket of the applicant's solicitor's office in Tamworth. It is not known whether the application was deposited in the exchange box located in Tamworth as was said to be the solicitor's usual practice, nor whether it arrived at the Registry in Sydney and was somehow lost, a highly unusual occurrence in my experience. Consideration 6 Rule 8 of the Industrial Relations Commission Rules 1996 provides: 8 Filing by post or Document Exchange Any document for filing in the Registry, other than a Notification of Industrial Dispute under Part 5 of these Rules, may also be filed by: (a) posting to the Registry, or (b) being left, addressed to the Registry: (i) in the exchange box of Australian Document Exchange Pty Ltd and of the Registry, or (ii) in another exchange box for transmission to the exchange box of that Company and the Registry, or (iii) in a box provided for the purpose in the Registry, together with a request that it be filed. 7 A similar rule can be found in Pt 1 r 9B of the Supreme Court Rules 1970: 9B Filing by post or document exchange (1) Any document for filing in a registry may be filed under this rule. (2) A document for filing under this rule may: (a) be posted to the registry, or (b) be left, addressed to the registry: (i) in the exchange box of Australian Document Exchange Pty Ltd and of that registry, (ii) in another exchange box for transmission to the exchange box of that Company and registry, or (iii) if it is the registry at Sydney, in a box provided for the purpose in the registry, with a request that the document be filed. 8 This rule was considered by the New South Wales Court of Appeal in Roads and Traffic Authority v Franks (Clarke JA, No 40480 of 1995, 11 December 1995, BC9501917). In that case the opponent sought to appeal pursuant to s 55 of the Government and Related Employees' Appeal Tribunal Act 1980. On 14 July 1995 the opponent posted by certified post a notice of appeal without appointment under cover of a letter addressed to the Supreme Court of New South Wales, Civil Appeals. The letter was held to constitute a request for the court to file the notice of appeal that was enclosed. 9 Clarke JA stated: The evidence before the court indicates that the letter was posted by certified mail at Eden on 14 July 1995. It was received, presumably by Australia Post in Sydney on 17 July 1995 and was delivered by that organisation on 18 July 1995. Having regard to the fact that the letter was addressed to the Supreme Court it is reasonable to infer that the documents were delivered to the Supreme Court on 18 July. For reasons which have not been explained the notice of appeal was not stamped with the word "Filed" by the Supreme Court until 20 July, or after the time for appeal had concluded. I have said there is no explanation as to why it took the Supreme Court two days to endorse the notice of appeal with the word "File" but it may be that the explanation lies in the fact that the opponent sought dispensation in respect of the filing fee. … In my opinion the proper construction of the rule [r 9B] leads to the result that if a party posts a document for filing to the Registry with a request that it be filed then, in accordance with the clear intention of R9B(1) the document is treated as filed under the rule. If that be right the act of acceptance is not an essential element of filing under R9B. … In my opinion what occurred here constituted a valid filing under r9B and, whether one chooses the date of posting or date of receipt by the court, the opponent's appeal was filed within time. 10 The circumstances in RTA v Franks were different to what obtains here. In RTA v Franks the evidence was that Mr Franks posted his appeal application and it was delivered to the Supreme Court. In those circumstances, Clarke JA considered that the appeal had been filed within the prescribed time. Here, none of the requirements of r 8 of the Commission's Rules in respect of the applicant's application executed by his solicitor on 13 August 2004 were complied with. RTA v Franks does not, in my opinion, assist the applicant. 11 In Van Aken v Camden London Borough Council [2003] 1 All ER 552 the England and Wales Court of Appeal considered circumstances where the claimant sought to bring an appeal. The relevant statutory provisions and rules of court provided that 'filing' a document meant delivering it, by post or otherwise, to the court office. The claimant's solicitors took the appeal papers to the court office on the last working day for filing but arrived 15 minutes after the office had closed. Later that day, the solicitors posted the papers through the court letterbox. The next day the papers were processed in the ordinary way and dated with that day's date. On the hearing of the appeal, the judge held that the appeal had been brought one day out of time since the notice had been 'filed' only when it had been authenticated by the court. Accordingly, the judge held he had no jurisdiction to hear the appeal. 12 On appeal to the Court of Appeal it was held by Jonathan Parker LJ, with whom Ward and Mummery LLJ agreed, that: [M]ere delivery of an appeal notice to the appropriate court office is sufficient to constitute the "filing" of the notice within the terms of the definition of that word in CPR [Civil Procedure Rules] 2.3(1), without any additional requirement that there should be someone at the court office to receive it, and/or to authenticate it. CPR 2.3(1) provided that "'filing', in relation to a document, means delivering it, by post or otherwise, to the court office …" 13 Mummery LJ in agreeing with the reason of Jonathan Parker LJ stated succinctly at [53]: I agree that Ms Deborah Van Aken's notice of appeal was delivered to the court office at the Central London County Court at 6.30pm on Monday 17 December 2001 by being put, along with copies of all other appropriate documents, through the letter box of the court by a member of her solicitors' staff. That, in my judgment, was "delivering" the documents within the meaning of CPR Part 2.3(1). It follows that the notice of appeal was "filed" within the meaning of CPR Part 52.4(2) on the last day for appealing and that this appeal was "brought" within the time limits prescribed by section 204(2) of the Housing Act 1997. 14 Again, the circumstances in Van Aken were quite different to those in the instant case. The appeal papers in Van Aken were in fact delivered to the court office on the last day for filing and the Court of Appeal accepted the documents had been filed within time. In contrast, in this case, the applicant's 13 August application was not filed in compliance with r 8 of the Commission's Rules. There was no evidence that the application went beyond the applicant's solicitor's office mail basket. In those circumstances, it does not seem to me it can be said that the applicant "made" an application prior to the 12 months' cut-off. If it were otherwise, applications executed by the applicant's solicitors prior to the cut-off could sit in the solicitor's office for months but once filed, after the cut-off period, be regarded as having been "made" for the purpose of s 108B of the Act. That cannot have been the legislature's intention. 15 Counsel for the applicant submitted that the words in r 8(b)(ii), "in another exchange box for transmission to the exchange box of that Company and the Registry (my emphasis)" included the applicant's solicitor's mail basket. I do not accept that a mail basket in a solicitor's office can be considered to be an exchange box for the purpose of r 8. 16 Counsel for the applicant also submitted, in the alternative as I understood him, that I should infer that the "office junior" in the solicitor's office, who apparently collects the mail for posting, in the normal course deposited the application in the exchange box located at Tamworth. In the absence of any direct evidence to that effect I am not prepared to draw such an inference. 17 In my opinion, having regard to RTA v Franks and Van Aken the application is "made" if it is filed in accordance with r 8 within the prescribed time. That is, there is no requirement for "someone at the court office to receive it, and/or to authenticate it" but in order for it to be said that any application for relief under s 106 had been made before the expiry of the 12 months' period prescribed by s 108B, there would need to be compliance with one of the alternative filing requirements set out in r 8 of the Commission's Rules. 18 Section 170(3) of the Act provides that if the Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings or any decision in the proceedings. In my opinion, in the ordinary course, the general provisions of s 170(3) must give way to the specific provisions of s 108B(2) of the Act so that the Commission in Court Session would have no jurisdiction to extend the time for making any application for relief or to accept an application made after the time prescribed by s 108B(1) in circumstances where an applicant failed to comply with r 8 and was out of time. 19 Here, however, the complication is that the applicant contends he had sought to file his application within the prescribed time but the application went astray. In the face of the strict injunction in s 108B is it, nevertheless, open to the Court to treat what occurred as an irregularity and to infer that the application executed by the applicant's solicitor on 13 August 2004 would have been filed within time if it had not gone astray and that I can regard the application eventually filed on 31 August as having been filed prior to the expiration of the time limit in s 108B(1)? I do not consider that I can, not only because of the provisions of s 108B but also because I would have to infer that: 1 A person collected the envelope containing the application from the mail basket in the solicitor's office; 2 The envelope was deposited in the Tamworth exchange box on a date prior to the expiration of the time period in s 108B(1); and, 3 The envelope was lost in transit or was lost or misplaced once it reached the Industrial Registry. 20 It seems to me it would have been open to the applicant to at least bring evidence in relation to the first two matters but none was brought and no explanation was given as to why he was unable to do so. 21 If there had been discretion in the Commission in Court Session to extend the time for making any application for relief or to accept an application made after the time prescribed by s 108B(1) it is most likely I would have done so in this case. But in light of s 108B(2) I consider my hands are tied. 22 Whilst I consider the consequences most regrettable in so far as the applicant is concerned, I do not consider I am left with any choice but to grant the respondent's motion to set aside the application for relief filed on 31 August 2004. I have no power to extend the time for making any such application or to accept an application made after the time prescribed by s 108B(1), and it was not contended otherwise. 23 I would make the observation that if applications are sought to be made within a few days of the expiration of an immutable time limit such as that imposed by s 108B, it is imperative that the applicant, or the applicant's solicitor or agent, satisfies himself or herself that the application has, in fact, been filed within time. In this case, apparently the applicant had originally sought relief in the Australian Industrial Relations Commission but filed a notice of discontinuance in that jurisdiction on 19 November 2003. No explanation was given as to why no steps were taken to file for relief in the Commission in Court Session until 13 August 2004, five days before the time for making the application expired. 24 I order that the originating process filed in these proceedings on 31 August 2004 by Steven Edward Grzazek be set aside. I do not propose to award costs on an indemnity basis. The applicant will pay the respondent's costs of these proceedings as agreed or assessed. _____________________ 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.