Industrial Relations Commission of New South Wales CITATION: Keith Mullins and Department of Education and Training [2008] NSWIRComm 180 Appellant: PARTIES: Keith Mullins Respondent: Department of Education and Training FILE NUMBER(S): IRC980 of 2008 CORAM: Kavanagh J; Staff J; McLeay C CATCHWORDS: Appeal - leave to appeal - appeal from interlocutory decision refusing to grant Extension of Time to appeal Full Bench Decision - application for leave to appeal and extension of time made 18 months after Full Bench decision - Full Bench Order sought to be challenged on appeal - effect of s179 of Industrial Relations Act 1996 - appeal a futility - proper exercise of discretion to refuse application for extension of time - leave granted to discontinue - Costs ordered LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Mullins v Dept of Education and Training [2006] NSWIRComm 1136 Mullins v Dept of Education and Training [2008] NSWIRComm 115 HEARING DATES: 29/09/2008 EXTEMPORE JUDGMENT DATE: 29 September 2008 Mr K. Mullins Appellant in person LEGAL REPRESENTATIVES: Respondent: Mr S. Benson of counsel Mr P. Quinn of the respondent JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Kavanagh J Staff J McLeay C Monday 29 September 2008 Matter No IRC 980 of 2008 KEITH MULLINS AND DEPARTMENT OF EDUCATION AND TRAINING Application by Keith Mullins for leave to appeal and appeal against a judgment of Schmidt J given on 10 June 2008 in matter No. IRC 440 of 2008 EX TEMPORE DECISION OF THE COMMISSION [2008] NSWIRComm 180 1 This is an application for leave to appeal and appeal under s187 of the Industrial Relations Act 1996 against a decision of Schmidt J given on 10 June 2008 in matter No. IRC 440 of 2008 refusing the appellant an extension of time to appeal a decision of the Full Bench of the Commission. 2 Mr Keith Mullins (the appellant) commenced employment with the Department of Education and Training (the respondent) in early 2000 at the Moree Secondary College. 3 The facts are relevantly set out in the decision of Ritchie C of 8 September 2006 (Mullins v Dept of Education and Training [2006] NSWIRComm 1136): 4 On 18 November 2005 the applicant filed an unfair dismissal application [Matter No 5948 of 2005] stating that on 24 November 2004 he had been constructively dismissed. 5 On 20 July 2006, the applicant filed an application for reinstatement of an injured employee under section 93 of the Industrial Relations Act, 1996. 6 On 19 July 2006, the respondent filed a Notice of Motion stating that Matter No 5948 of 2005 proceedings should be dismissed for want of jurisdiction. 7 On 26 July 2006, Matter No 2784 of 2006 was listed for conciliation. At that time the respondent's legal representative applied for Matter No 5948 of 2005 to be joined so as argument with respect to their Notice of Motion could be heard as the jurisdictional argument would be the same for both. That application was granted by the Commission. 4 Commissioner Ritchie went on to find in both matters that, as the appellant had not been dismissed as an employee of the respondent, the relief sought, for unfair dismissal under s84 or for reinstatement of an injured employee under s93 of the Act, was outside the jurisdiction of the Commission. The Commissioner concluded: 22 As was stated by the applicant, in evidence and from the bar table on a number of occasions, he has never resigned from the services of the respondent nor does he intend to. 23 Without resigning I do not see how the applicant can state that a constructive dismissal has taken place and that he therefore in some fashion, becomes an eligible employee for the purposes of either sect.84 or sect. 92 of the Act. 24 In summary it is my finding that because there has neither been a termination by the respondent nor a resignation by the applicant then the Commission lacks jurisdiction to hear these two cases. 5 The appellant appealed the decision of Commissioner Ritchie. He then sought to discontinue the appeal, which the Full Bench granted on 4 December 2006. 6 The appellant in April 2008 sought leave to appeal the Full Bench order and sought an extension of time to appeal. 7 On 10 June 2008, Schmidt J in Mullins v Department of Education and Training [2008] NSWIRComm 115 refused the application for an extension of time. The Appellant appeals that decision. Her Honour described the circumstances surrounding the discontinued proceedings at [1],[3] and [4]: 1 Mr Keith Mullins seeks an order under s 191 of the Industrial Relations Act 1996 ('the Act'), extending time to appeal a decision of a Full Bench of the Commission, given on 4 December 2006, allowing Mr Mullins to discontinue an appeal which he had brought against a decision given by Commissioner Ritchie , on 8 September 2006 (see Mullins v Dept of Education and Training [2006] NSWIRComm 1136). . . . 3 When Mr Mullins' appeal from Commissioner Ritchie's decision came before the Full Bench on 4 December 2006, Mr Mullins sought leave to discontinue the proceedings. That leave was granted. 4 In his application for extension of time to appeal, Mr Mullins referred to the circumstances in which he had sought a discontinuance of the appeal proceedings, which included advice which he had then received from his solicitor and that he had later been dismissed from his employment in January 2008. 8 In refusing the application, her Honour at [10] and [12] said: 10 While s 189 of the Act permits the Commission to extend time to appeal, as I have noted, it is well settled that in exercising that discretion, the Commission must have regard to various matters relevant to the exercise of that discretion, including the appellant's prospects of success on appeal. Here, it would seem that the appeal can have no prospects of success at all, because there is simply no right to bring such an appeal. In his submissions Mr Mullins did not point to any other basis upon which could be argued that he could bring such an appeal. . . . 12 To grant the leave now sought in these proceedings would be a futility. As the respondent submitted, in those circumstances, it would be wrong for the application for an extension of time to appeal to be granted. Other factors, including the nature of the decision which Mr Mullins wishes to complain about, namely a decision to grant him the leave to discontinue the proceedings, which he himself sought of the Full Bench, and the time at which that leave was granted, namely in December 2006 and when this application was brought, not until April 2008, also support the conclusion that a proper exercise of the discretion to extend time, could not permit the extension sought. Application for leave to appeal and appeal 9 Mr Mullins filed an appeal against Justice Schmidt's decision on 26 June 2008. In that application he submitted: When I sought to discontinue proceedings before the Full Bench on 4 December 2006 it was based on: a/ Legal advice in relation to my health and welfare about issues unresolved with DET, in that; b/ DET having delayed action in resolving my ordeal, contrary to Regulatory Bodies recommendations, eg (Health Quest 2005). c/ Resolution was not forthcoming until 18 January 2008 hence my appeal to the IRC to revisit the discontinued grant on the basis of new evidence in the aforementioned dismissal. d/ Revisitation was requested on the basis of Commissioner Ritchie concluding matters regarding my reinstatement as without the IRC's jurisdiction since I have not been dismissed nor asked to resign, let alone resign out of my volition. and On the 4th December 2008 [sic] the Full Bench did not conclude a hearing. The decision by the Full Bench to grant discontinuance was in response to my request before the hearing commenced. Therefore, in reference to DET's stance, there ought not to be any quarms about an injustice or prejudice and request that the IRC utilize their full powers in finalizing matters that are well overdue because of DET having incessantly tried to avoid accountability. The day of reckoning should be allowed to take its course. 10 On 29 September 2008 in this leave application, the respondent submitted: Her Honour applied the correct principles in the exercise of the discretionary decision-making power conferred pursuant to Section 189 of the Industrial Relations Act, 1996. Her Honour observed at [11] of the Decision that, consistent with relevant authorities, a significant matter in exercising the discretion conferred on her was a consideration of the appellant's prospects of success on appeal. In doing so her Honour (having regard to the privative provision in Section 179, Industrial Relations Act 1996) correctly concluded that the appeal seemed to have no prospects of success because there was no right to bring such an appeal against the decision of a Full Bench. At [12] of the Decision her Honour also correctly concluded that to grant leave to appeal would have been a futility. 11 During the hearing there was discussion with members of the Full Bench and the appellant as to the effect of s 179 of the Act. Relevantly, s 179(1) provides: Finality of decisions (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. . . . 12 The appellant acknowledged the effect of the section. The appellant now seeks leave to discontinue the Appeal. He does so with a further acknowledgement that although he knows the Appeal is "futile" in law he intends to pursue his rights for victimisation seeking re-instatement. 13 Had the appeal been pursued, the Full Bench was concerned this case may not have been one that raised matters of such importance to activate issues of public interest; nor where substantial issues of principle or law required to be considered; nor was there a demonstrable error disclosed in the first instance decision; nor did the exercise of a discretion miscarry. Given the effect of s 179 of the Act, we endorse Schmidt J's reasons at [12] where her Honour said: To grant the leave now sought in these proceedings would be a futility. Costs 14 The respondent seeks costs. Section 181 of the Act states: . . . (2) However, the Commission when it is not in Court Session may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or . . . (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. 15 The respondent as to Costs submits that in her reasoning, Schmidt J demonstrated the futility of the appellant's appeal against the Full Bench decision which in turn rendered futile the proceedings before her Honour. Notwithstanding this guidance the appellant has compounded his excursion in futility by initiating the present appeal. The respondent quantifies its costs of the Appeal at $3600. 16 The appellant submits as to costs that he has no employment and is financially impecunious. 17 The Full Bench is of the view that this application is not vexatious however given the reasoning of Schmidt J we have concluded that the application was brought without reasonable cause and is frivolous. Therefore we order costs against the appellant. Orders (i) The Application for Leave to discontinue the Appeal is granted. (ii) The Appeal is dismissed. (iii) The Appellant shall pay the respondent's costs in the sum of $3600. 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.