Industrial Relations Commission of New South Wales in Court Session CITATION: Barataud v Chipperfield (No 2) [2006] NSWIRComm 175 APPELLANT: Alain Barataud PARTIES: RESPONDENT: Scott Chipperfield FILE NUMBER(S): IRC 2316 of 2006 CORAM: Walton J Vice-President; Schmidt J; Backman J CATCHWORDS: Appeal - leave to appeal and appeal from decision refusing application to extend time to appeal - application for stay of orders in respect of which application to extend time to appeal sought - section 179 and 180 of Industrial Relations Act 1996 considered - no power to consider stay application - stay declined - costs LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Barataud v Chipperfield [2006] NSWIRComm 131 HEARING DATES: 19/05/06 EXTEMPORE JUDGMENT DATE: 05/19/2006 APPELLANT: Mr I Latham of counsel SOLICITORS: Uther Webster Evans LEGAL REPRESENTATIVES: RESPONDENT: Mr R Reitano of counsel SOLICITORS: Russell McLelland Brown JUDGMENT: - 5 - INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: Walton J, Vice-President Schmidt J Backman J 19 May 2006 Matter No IRC 2316 of 2006 ALAIN BARATAUD v SCOTT CHIPPERFIELD Application by Alain Barataud for leave to appeal and appeal against a judgment of Justice Boland given on 24 April 2006 in Matter Number IRC 1406 of 2006 JUDGMENT OF THE COURT EX-TEMPORE [2006] NSWIRComm 175 1 Mr Barataud seeks leave to appeal from a decision given by Boland J (Barataud v Chipperfield [2006] NSWIRComm 131) on 20 April 2006, declining his application to extend time to appeal from a decision given by Staff J on 9 February 2006. A stay of the orders made by Staff J is also sought. This judgment deals with the question of stay. 2 The proceedings before Staff J were brought by Mr Chipperfield pursuant to s 106 of the Industrial Relations Act 1996. The matter proceeded ex parte, Mr Barataud never having filed a notice of appearance or appearing in the proceedings, despite having been served with the originating process. 3 Before Boland J, Mr Barataud's case was that he first became aware of the orders made against him by Staff J on 10 February. Mr Chipperfield's solicitors began pursuing Mr Barataud in relation to the orders made on 16 or 17 February. Some 10 days later, Mr Barataud sought legal advice and the application for extension of time to appeal Staff J's decision was filed on 10 March 2006, outside the 21 day appeal period fixed by s 189 of the Act. 4 Mr Barataud's application raised questions of denial of natural justice, the matter having proceeded ex parte; that he had a bona fide defence to the claim; that he had not been notified of the hearing dates and that there was a jurisdictional question in relation to one aspect of the orders made in relation to a shareholding. 5 Boland J dismissed the application for extension of time. His Honour observed that there was no question that the originating process had been served on Mr Barataud at his then address. Despite this, he never entered an appearance or appeared in the proceedings. Notice of various documents and steps taken in the proceedings were served upon him at that address by the Registry and by Mr Chipperfield's solicitor. Mr Barataud's evidence was that he had not received those documents and notices, because he had moved from that address, but had taken no steps to have his mail redirected to him. There was no suggestion that he had notified the Court, or Mr Chipperfield, of his new address. Mr Barataud's evidence raised various other matters, including that he maintained a post office box of which Mr Chipperfield was aware and that was not used to serve him; that he took no steps in the proceedings because he had reached an agreement with Mr Chipperfield that the proceedings would be discontinued (which was denied); that English was his second language and that he did not understand the legal system. 6 Boland J was skeptical of various aspects of Mr Barataud's evidence, noting that while he had not taken steps in the s 106 proceedings, he had instructed solicitors to initiate proceedings in the District Court against Mr Chipperfield, which were ultimately dismissed for want of prosecution. His Honour also considered the steps taken by Mr Barataud, once he became aware of Staff J's judgment on 10 February. His Honour took the view that Mr Barataud's attitude to the proceedings and the appeal militated against the grant of the extension of time to appeal. 7 Boland J also took account of the prospects of success of the appeal, if the application for time were granted, noting the jurisdictional point raised and the factual contest between the parties, which largely revolved around the question of whose version of events would be accepted as to matters in issue in the proceedings, that of Mr Barataud or that of Mr Chipperfield. This did not, in his Honour's view, assist Mr Barataud, because leave to appeal would be difficult to achieve in such a case. 8 Having also taken into account the cost and inconvenience flowing to Mr Chipperfield from the grant of the extension sought, Boland J dismissed the application. Given the refusal of the application for extension of time, the question of the stay of Staff J's orders was not considered by Boland J. 9 Sections 187 and 188 of the Act give Mr Barataud a right of appeal, with the leave of the Commission, against Boland J's decision. There does not appear, however, to be a power granted by the Act, for this Full Bench to stay the orders made by Staff J. 10 Section 190 of the Act deals with the stay of a decision. It provides: If an appeal is made under this Part to a Full Bench of the Commission, the Full Bench or the Commission constituted by a Presidential Member may, on such terms as it considers appropriate, order that the decision concerned be wholly or partly stayed pending determination of the appeal or until further order of the Full Bench or Commission 11 Mr Barataud did not appeal Staff J's decision within the time fixed. However, section 189 of the Act permitted Mr Barataud to be granted an extension of time to file an appeal. It follows that if Boland J had granted the application to extend time to appeal, as s 189 permitted, his Honour could then also have dealt with the application for stay of the orders which Staff J had made under s 190. The application to extend time was, however, refused. 12 The orders made by Staff J attracted the provisions of s 179 of the Act, which provides: (1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal. (2) Proceedings of the Commission (however constituted) may not be prevented from being brought, prevented from being continued, terminated or called into question by any court or tribunal. (3) This section extends to proceedings brought in a court or tribunal in respect of a decision or proceedings of the Commission on an issue of fact or law. (4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of: (a) the Full Bench of the Commission in Court Session, or (b) the Commission in Court Session if the Full Bench refuses to give leave to appeal the decision. (5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise. (6) This section is subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law. (7) In this section: decision includes any award or order. 13 The appellant could point to no other provision of the Act relevant to the power to stay the orders made by Staff J and no authority which could be relied on. It was, however, submitted that a stay of Staff J's orders could be entertained, if the proceedings before Staff J and Boland J were joined with this appeal. We can see no power under the Act for such joinder to be ordered. 14 It follows from the scheme of the Act, that unless Staff J's decision of 9 February was appealed within the time fixed for appeal, or an extension of time to appeal were granted in accordance with s 189, consistently with ss 179 and 190 of the Act, the orders his Honour made cannot properly be stayed. Until the extension of time to appeal is granted, the Full Bench has no power to consider the application for stay. Orders 15 For the reasons given, the application for stay of the orders made by Staff J is declined. The appellant is ordered to pay the respondents' costs of the determination of the question of the stay, 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.