Industrial Court of New South Wales CITATION: Vok and anor v Bernard George Madden [2008] NSWIRComm 118 FIRST APPELLANT George Vok (Second respondent at first instance) SECOND APPELLANT PARTIES: Eva Vok (Third respondent at first instance) RESPONDENT Bernard George Madden (Applicant at first instance) FILE NUMBER(S): 635 of 2008 CORAM: Marks J CATCHWORDS: Unfair contract proceedings - application for extension of time to institute appeal - original proceedings arose out of contracts of employment - original proceedings not defended, heard ex parte - application relies on evidence allegedly not available to applicants at time of proceedings - respondent company has been wound up and personal respondents bankrupt - no explanation for delay in seeking extension - no merit in the application - application refused LEGISLATION CITED: Industrial Relations Act 1996 s106 Legal Profession Act 2004 CASES CITED: Madden v Electromagnetic Spectrum Pty Limited and ors [2006] NSWIRComm 354 WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 HEARING DATES: 13 June 2008 EXTEMPORE JUDGMENT DATE: 13 June 2008 FIRST AND SECOND APPELLANTS In person LEGAL REPRESENTATIVES: RESPONDENT Mr A Searle of counsel Solicitor Hicksons Lawyers Ms W Andrews JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Friday 13 June 2008 Matter No IRC 635 of 2008 Vok and anor v Bernard George Madden Application to extend time to appeal against a judgment and orders of Justice Backman given on 7 November 2006 in matter no IRC 7141 of 2004. EX TEMPORE JUDGMENT [2008] NSWIRComm 118 1 On 14 May 2008 the applicants in these interlocutory proceedings, George and Eva Vok, applied for an extension of time in which to institute an appeal from a judgment of Justice Backman of this Court delivered on 7 November 2006 in Madden v Electromagnetic Spectrum Pty Limited and ors [2006] NSWIRComm 354. In those proceedings the applicant was Bernard George Madden and he sought certain relief against the company Electromagnetic Spectrum Pty Limited and Mr and Mrs Vok pursuant to s106 of the Industrial Relations Act 1996. 2 The proceedings arose out of contracts of employment between Mr Madden and the company of which Mr and Mrs Vok were directors and shareholders. The proceedings were not defended by the respondents and were heard ex parte. 3 Justice Backman found that one of the contracts of employment was unfair. Her Honour declared it wholly void from inception save for certain exceptions and awarded monetary compensation of approximately $142,000 together with interest and costs. Those moneys were to be payable jointly and severally by all of the respondents. 4 The application to extend time to appeal relies on evidence that Mr and Mrs Vok suggest was not available to them at the time of the proceedings. This was that the applicant had been in possession of, firstly, a company motor vehicle and, secondly, computer equipment belonging to the company, and that in some way Justice Backman was misled in that she was not made aware of the possession of these items by Mr Madden. Furthermore, there is a suggestion now made by Mr and Mrs Vok that a superannuation payment of $17,800 claimed by Mr Madden had in fact been paid or in some way was not liable to be paid by the company. 5 There is a reference in her Honour's judgment at [47] to a component of the applicant's remuneration package being an amount for a motor vehicle in the sum of $20,000. This is the only reference that I have been able to locate to the motor vehicle in her Honour's judgment. Certainly her Honour has accepted the superannuation claim and included it within the amount of monetary compensation awarded in favour of Mr Madden. 6 Whether and to what extent Justice Backman should have taken the possession of the motor vehicle and the computer equipment into account is not ascertainable by reference to her Honour's judgment. 7 Mr Madden has put on certain documentary evidence which outlines the steps taken by him to enforce the judgment and orders of her Honour which has involved proceedings in the District Court and in the Federal Magistrate's Court. The company has been wound up and bankruptcy proceedings have been taken against Mr and Mrs Vok. Indeed, the evidence is to the effect that they have been made bankrupt. Accordingly, there must be grave doubt about the competency of these proceedings because the assets of a bankrupt vest in his or her trustee upon bankruptcy. 8 A communication purporting to be from the trustee in bankruptcy of Mr and Mrs Vok indicates that the trustee does not consent to these proceedings. In any event I am persuaded that there is no merit in the application and I propose to proceed on this basis without necessarily having to determine the question of competency of the proceedings, although, as I have stated, there must be extreme doubt about their status. 9 The principles which apply to proceedings of this kind have been conveniently set out in a judgment of a Full Bench of the predecessor to this Court in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 (at 299 – 301). I shall not endeavour to summarise those principles to any extent but I do observe that Mr and Mrs Vok bear the burden of demonstrating that the extension of time in which to appeal should be granted so as to avoid some injustice which would accrue to them. 10 The principles also stress the necessity to take into account the prospects of the success in any appeal and the fact that Mr Madden has obtained a judgment in his favour in proceedings which Mr and Mrs Vok chose not to defend. 11 Given the state of the information before the Court with respect to the application to extend time I can see no reason why, after such a long passage of time, an extension of time in which to appeal should be granted. This is particularly so because Mr and Mrs Vok, as directors of the company, must have been aware since the termination of the applicant's contract of employment that the motor vehicle and computer equipment had not been returned to them as alleged by them, assuming that this is the case. These are matters that could have been raised during the course of the proceedings before Justice Backman and could have been raised at any time earlier than 14 May 2008. Although Mr Vok referred to an affidavit sworn by Mr Madden on 12 July 2007 with respect to the possession of the vehicle and the computer equipment there is no explanation for the delay in seeking to appeal between July 2007 and 14 May 2008. 12 The same situation applies with respect to the superannuation payment. Mr and Mrs Vok, as directors of the company, must or ought to have been aware as to whether or not that had been paid. 13 Mr and Mrs Vok have not demonstrated any cogent reason why an extension of time in which to seek leave to appeal from the judgment of Justice Backman should be granted. Arguably, any consideration about the motor vehicle and the computer equipment would not be something which a court would take into account in determining the merits of any appeal. The application is refused accordingly. 14 I make the usual order in terms of costs, although, as Mr Searle states, that may be academic, given the bankruptcy of Mr and Mrs Vok. They are to pay Mr Madden's costs in connection with this application assessed under the Legal Profession Act 2004 in default of agreement. 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.