Industrial Relations Commission of New South Wales CITATION: Mullins v Director General, Department of Education and Training [2009] NSWIRComm 58 APPELLANT: Keith Mullins PARTIES: RESPONDENT: Director General, Department of Education and Training FILE NUMBER(S): IRC 2430 of 2008 CORAM: Boland J President; Harrison DP; Grayson DP CATCHWORDS: APPEAL - Application for leave to appeal and appeal - Leave refused - Appeal dismissed - Application for costs against appellant refused. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 Keith Mullins v New South Wales Department of Education and Training [2008] NSWIRComm 236 HEARING DATES: 28 April 2009 DATE OF JUDGMENT: 7 May 2009 APPELLANT: Mr Keith Mullins LEGAL REPRESENTATIVES: self represented RESPONDENT: Mr S Benson of counsel with Mr P Quinn of Department of Education and Training JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J, President HARRISON DP GRAYSON DP Thursday 7 May 2009 Matter No IRC 2430 of 2008 KEITH MULLINS AND DIRECTOR GENERAL, DEPARTMENT OF EDUCATION AND TRAINING Application by Keith Mullins for leave to appeal and appeal against a decision of Deputy President Sams given on 10.12.2008 in matter No IRC 1471 of 2008 DECISION OF THE COMMISSION [2009] NSWIRComm 58 1 This is an application for leave to appeal and, if leave be granted, appeal from a decision of Deputy President Sams given on 10 December 2008 (Keith Mullins v New South Wales Department of Education and Training [2008] NSWIRComm 236), in which the Deputy President declined to exercise discretion to allow Mr Mullins' application for relief from victimisation under s 213 of the Industrial Relations Act 1996 ("the Act") to be filed out of time. 2 Section 188(1) of the Industrial Relations Act 1996 provides that an appeal from a member of the Commission may only be made with leave of the Full Bench. Section 188(2) provides that leave will be granted if the Full Bench is of the opinion that the matter is of such importance that, in the public interest, leave should be granted. 3 The principles relevant to the grant of leave were summarised by the Full Bench in Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 at [5] where it was stated: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188 (2) of the Act , will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. 4 Applying the principles concerning leave to appeal set out in that decision to the appeal before us, and having considered all the material raised in these proceedings, we have determined leave to appeal should be refused. 5 Mr Mullins' submission that the Commission is bound by statute to accept his application out of time is misconceived and wrong. The fact that he made earlier applications extending back to 2005 seeking various forms of relief (which were either dismissed or not proceeded with) does not entitle him to rely on those earlier applications to establish some sort of continuity of proceedings and, therefore, bring him within time. Section 213(4) of the Act provides: (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought. 6 As the learned Deputy President noted at [21] of his decision, if the appellant's claim of victimisation related to conduct by the employer in 2003, then the delay in bringing the claim was over five years. If the appellant's dismissal was the act of alleged victimisation then his application was about seven months out of time. There was nothing put by the appellant, either at first instance or on appeal, that would constitute a sufficient reason to grant the out of time application. 7 The appellant failed to show how his Honour's discretion miscarried. There was no error committed by Sams DP in refusing the out of time application. The findings and conclusions reached by his Honour were open to him and supported by the evidence and argument put before him. 8 We decline the order sought by the respondent that the appellant pay its costs. There will be no order as to costs of the appeal. ORDERS 9 The Full Bench makes the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. No order as to costs of the appeal. ____________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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