Dr Bilal trading as The Hornsby Medical Centre v Jenni Marshall [2006] NSWIRComm 143

Industrial Court of New South Wales

CITATION: Dr Bilal trading as The Hornsby Medical Centre v Jenni Marshall [2006] NSWIRComm 143

DR BILAL TRADING AS THE HORNSBY MEDICAL CENTRE Appellant PARTIES: JENNI MARSHALL Respondent

FILE NUMBER(S): IRC 955 of 2006

CORAM: Schmidt J

CATCHWORDS: Appeal - application to extend time to appeal - Section 189 - application opposed - proper explanation of delay - leave granted

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Cavacuitti & Anor v Toyota Motor Corporation Limited (2002) 122 IR 247

HEARING DATES: 24/04/06 EXTEMPORE JUDGMENT DATE: 04/24/2006

APPELLANT: Ms FJ Hancock of counsel

LEGAL REPRESENTATIVES: THE AUSTRALIAN MEDICAL ASSOCIATION (NEW SOUTH WALES) LIMITED

RESPONDENT: Ms J Marshal (unrepresented)

JUDGMENT:

- 1 - INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Schmidt J

24 April 2006

Matter No IRC 955 of 2006

DR BILAL TRADING AS THE HORNSBY MEDICAL CENTRE v JENNI MARSHALL Application by Dr Bilal trading as the Hornsby Medical Centre for application to extend time to appeal and leave to appeal and appeal against a decision of Chief Industrial Magistrate Hart on 16.11.2005 in matter no. CIM 124385/05

JUDGMENT EX-TEMPORE

[2006] NSWIRComm 143

1 This is an application made under s 189 of the Industrial Relations Act 1996 ('the Act') to extend time to appeal from a decision of the Chief Industrial Magistrate given on 16 November 2005. The appeal was filed some ten weeks out of time. 2 The application is made in circumstances where the appellant promptly sought advice in relation to the appeal within the time fixed for appeal by s 189 of the Act. 3 His Honour gave an ex-tempore decision contained in transcript. The transcript of the decision was ordered on 1 December and the respondent to the appeal was notified by letter of 6 December of the appellant's intention to lodge an appeal once the transcript became available. It was common ground that this was within the time fixed for appeal. 4 The transcript was not available until 16 February 2006. Once obtained, the appeal was filed promptly on 24 February. No stay of the decision was sought in the meantime. The money ordered by the Chief Industrial Magistrate was paid after the parties had conferred on the calculation of the orders made, as the Chief Industrial Magistrate had required. 5 On 22 November Ms Marshall, the respondent, notified the Chief Industrial Magistrate's Court that the sum had been agreed and that she proposed to discontinue the proceedings. 6 The appeal raises questions of the proper construction of the Clerical and Administrative Employees (State) Award, questions of jurisdiction and denial of natural justice, as well as alleged misapplication of the award grading structure, inconsistent with the decision of Glynn J when inserting the relevant classifications into the award. 7 The principles to be applied in considering an application such as this are well settled. They were conveniently summarised by Walton VP in Cavacuitti & Anor v Toyota Motor Corporation Limited (2002) 122 IR 247 at 257. Discretion must be exercised to ensure that justice is done between the parties having regard to matters such as the length and reason for the delay, any prejudice suffered by the respondent and whether there is a reasonable explanation for the delay. 8 In this case, I am satisfied that the leave sought must be granted as a matter of justice. 9 The application was opposed by Ms Marshall, an unrepresented litigant, both in these proceedings and those before the Chief Industrial Magistrate. 10 It was argued in her notice in reply, that the application amounted to an abuse of the court process and that the appeal did not raise any alleged errors of law, but rather, merely reflected dissatisfaction with his Honour's decision. It was argued that the appellant was a well resourced and well experienced body which ought to have complied with the Court's rules. That being so, it was unjust that an appeal should be allowed now given, firstly, the appellant's failure to comply with the rules which required the appeal to be filed within the specified time; and secondly, the respondent's belief that the money amounts agreed by the parties reflected a final settlement of the matter. 11 The compelling factors in this case which lead to the granting of the leave sought, include that the respondent was on notice of the appellant's intention to lodge the appeal within the appeal period; no stay was sought pending the filing of the appeal; the delay in filing the appeal was caused by the fact that the decision recorded in transcript was not available within the time fixed for an appeal, so as to enable the appellant to seek advice as to whether the decision was appellable; the appeal was filed promptly once the transcript of the decision became available and, contrary to Ms Marshall's submissions; the appeal raises serious questions going to the matters I have outlined earlier. 12 I am satisfied in all of the circumstances that there is a proper explanation for the delay and that justice requires that leave to extend time to file the appeal be granted. 13 For those reasons the extension of time sought is granted. 14 The matter will now be referred to the President for reallocation. ------------------------