Jia Ju Huang and The Sunnyfield Association [2006] NSWIRComm 144

Industrial Relations Commission of New South Wales

CITATION: Jia Ju Huang and The Sunnyfield Association [2006] NSWIRComm 144

Applicant: PARTIES: Jia Ju Huang Respondent: The Sunnyfield Association

FILE NUMBER(S): IRC173 of 2006

CORAM: Kavanagh J

CATCHWORDS: Application for extension of time - granted

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: WorkCover Authority of NSW (Insp Salmon) v Parkes Council (1996) 70 IR 298 Cavacuiti v Toyota Motor Group Aust Ltd (2002) 122 IR 247

HEARING DATES: 20/04/06 EXTEMPORE JUDGMENT DATE: 04/20/2006

Applicant in person

LEGAL REPRESENTATIVES: Respondent: Mr M.J. Booth Employment Advocacy Solutions Pty Ltd

JUDGMENT:

- 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Kavanagh J

20 April 2006

Matter No. IRC 173 of 2006

JIA JU HUANG AND THE SUNNYFIELD ASSOCIATION

Application by Jia Ju Huang to extend time to appeal and leave to appeal and appeal against a decision of Commissioner Ritchie given on 7.12.05 in matter no. IRC3257 of 2005

EX TEMPORE DECISION

[2006] NSWIRComm 144

1 This is an application brought pursuant to s189 of the Industrial Relations Act 1996 (the Act) by Jia Ju Huang for the grant of an extension of time for leave to appeal and appeal a decision of Commissioner Ritchie handed down on 7 December 2005. The applicant represented himself before Commissioner Ritchie.

2 In his decision, the learned Commissioner found the termination of the applicant was for reasons of redundancy as a consequence of a restructure rather than, as the applicant submitted, that he was terminated after making a claim for workers' compensation four months earlier. 3 The claim for workers' compensation was made in January 2005. The termination occurred on 20 May 2005. At the time of termination, the applicant had returned to work. 4 The history of the litigation is relevant to my consideration of an extension of time application. On 17 January 2006, solicitors representing the applicant filed an application for an extension of time and an application for leave to appeal and appeal. The application for leave to appeal and appeal carried the date of 29 December 2005. That date becomes relevant to my consideration. Evidence was led which reveals the applicant approached Legal Aid within days of the Commissioner's decision being handed down. He sought advice as to his rights of appeal. Legal Aid made an appointment for him on 21 December 2005, the Wednesday before Christmas. 5 Not until 21 December 2005 did the applicant know about the 21 day statutory limitation on leave to appeal and appeal applications (s189 of the Industrial Relations Act 1996 and Rule 42 of the Industrial Relations Commission Rules 1996). Legal Aid advised him of the extension of time requirement and expressed the view he had a right to appeal. They gave him no advice on how to mount such an appeal. 6 The applicant then found a solicitor "in Chinatown". He attended that office and said he paid monies and that led to the draft document of appeal dated 29 December 2005. When he paid his solicitors, the applicant said he was given the appeal documents. 7 However, the document was not filed along with an extension of time application until 17 January 2006. It was therefore, taking into account the Christmas vacation and the nine days allowed under Rule 136, out of time. 8 The matter then came before me for mention on 25 January 2006. The applicant's solicitor attended. The matter was listed for hearing on 30 January 2006. There was then correspondence between the parties and the court as to taking the matter out of the list for a number of reasons, including the illness of the applicant, as supported by a medical certificate. The matter was first stood over to 3 March 2006 and then today's date, 20 April 2006. 9 On 9 March 2006, the applicant's solicitor faxed to the Commission a notice of ceasing to act. 10 The applicant comes before me today unrepresented and requiring the assistance of a Mandarin interpreter. The applicant's application for an extension of time is opposed by the respondent. 11 The applicant submits that he is not well, that he has been trying to get a solicitor and Christmas has also intervened and for various reasons he wishes to get legal aid and another solicitor and to keep trying to appeal. The applicant has made clear he always wished to pursue his rights of appeal. 12 The respondent opposes the application. The respondent acknowledges the various principles required with the consideration for an extension of time to be made and while the respondent presses the ground that the application was filed out of time (s189), the respondent places more force upon the submission that the applicant does not have any reasonable grounds of appeal. 13 The grounds of appeal in the document filed for leave to appeal and appeal states: (1) The Commission did not consider s95 of the Industrial Relations Act 1996 in respect of the appellant's application for unfair dismissal in the decision.