Industrial Court of New South Wales CITATION: Botany Bay City Council v Inspector Derek Pryor [2007] NSWIRComm 227 BOTANY BAY CITY COUNCIL Appellant PARTIES: INSPECTOR DEREK PRYOR Respondent FILE NUMBER(S): 236 of 2007 CORAM: Schmidt J CATCHWORDS: Appeal - application for leave to extend time to appeal - application granted - application consented to - reasons for decision Crimes (Review and Appeal) Act 2001 LEGISLATION CITED: Dangerous Goods Act 1975 Industrial Relations Act 1996 Occupational Health and Safety Act 2000 CASES CITED: Botany Bay Council v Work Cover [2007] NSWDC 61 WorkCover Authority of New South Wales (Inspector Michael Salmon) v Parkes Council (1996) 70 IR 298 HEARING DATES: 3 September 2007 DATE OF JUDGMENT: 3 September 2007 APPELLANT: Mr A Lang of counsel SOLICITORS: Houston Dearn O'Connor LEGAL REPRESENTATIVES: RESPONDENT: Mr P Skinner of counsel SOLICITORS: Carroll & O'Dea JUDGMENT: - 6 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 3 September 2007 Matter No IRC 236 of 2007 BOTANY BAY CITY COUNCIL v INSPECTOR DEREK PRYOR Application by Botany Bay City Council for leave to extend time to appeal against an ex tempore judgment of Chief Industrial Magistrate Hart given on 5.12.2006 in matter no. CIM20117951/06 REASONS FOR JUDGMENT [2007] NSWIRComm 227 1 I announced at the hearing of this application for extension of time to appeal a judgment of the Chief Industrial Magistrate, convicting the appellant of an offence under the Dangerous Goods Act 1975, that I would grant the application, which the respondent consented to, and would later give short reasons for coming to that conclusion. These are the reasons. 2 The application was brought in February 2007. His Honour's ex tempore judgment was given on 5 December 2006. This application was adjourned while an earlier appeal from his Honour's judgment, brought in December 2006, was pursued in the District Court. The District Court later concluded that it had no jurisdiction to deal with that appeal. (See Botany Bay Council v Work Cover [2007] NSWDC 61.) 3 The appeal to the District Court was filed on 19 December 2006. In January 2007, the respondent raised the question of that Court's jurisdiction to entertain the appeal, with the result that the appellant brought these proceedings, in order to preserve the possibility of an appeal to this Court from the Chief Industrial Magistrate's judgment, in the event that the District Court came to the view that it had no jurisdiction to entertain the appeal brought to it. 4 The issues before the District Court depended on the proper interpretation of the Crimes (Review and Appeal) Act 2001, the Dangerous Goods Act and the Industrial Relations Act 1996. There was no issue between the parties that the appellant had a right of appeal to this Court, from his Honour's decision to convict the appellant of an offence under the Dangerous Goods Act, which had been repealed in 2005, given the provisions of the Occupational Health and Safety Act 2000. The time limit for that appeal was 21 days, with the Court having a discretion to grant an extension of that time (see s 189 Industrial Relations Act and s 105 Occupational Health and Safety Act.) 5 The proper approach to an application such as this is well settled. In WorkCover Authority of New South Wales (Inspector Michael Salmon) v. Parkes Council (1996) 70 IR 298 at 299-301, it was observed: The proper approach to adopt in a consideration of the application was common ground between the parties. Reference was made in that respect to the decision of the Full Commission ( Peterson and Schmidt JJ, and Connor CC) of the former Industrial Relations Commission of New South Wales in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 5-6 as followed by the Full Commission ( Cahill VP, Maidment J and French CC) in Brookes v Watling (1995) 61 IR 163 at 166-167. In those two cases the Full Commission cited recent authorities formulating the way in which the grant of an extension of time for the filing of an appeal should be considered: see Gallo v Dawson (1990) 64 ALJR 458; Jess v Scott (1986) 12 FCR 187; and Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601. From those cases, the following propositions may be drawn: (1) The grant of an extension of time is not automatic and the object of those rules which fix times for doing acts is to ensure they do not become instruments of injustice; the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. (2) The discretion can only be exercised in favour of an extension of time upon proof that compliance with the rules will work an injustice upon the applicant therefor which necessarily requires regard be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application to extend time: see Avery v No 2 Public Service Appeal Board [1978] 2 NZLR 86 at 92; and Jess v Scott at 194-195. (3) An application for an extension of time in which to file an appeal always requires consideration of the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-264; and Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. (4) Upon the expiration of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: see Vilenius v Heingar (1962) 36 ALJR 200 at 201. (5) There must be material upon which it can be satisfied that to refuse the application to extend time would constitute an injustice: see Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1965] 3 All ER 933 at 935. (6) "The difference between two weeks and four weeks is not much (by which the time is to be extended) ... We never like a litigant to suffer by the mistake of his lawyers": per Lord Denning in Ghosh at 601. In accepting the approach inherent in the above propositions, the Full Commission observed in Skelly (at 6): "The Commission's Rules require an appeal to be filed within 28 days of a decision. There is a public interest in the prompt institution and prosecution of litigation before the Commission. Indeed the Act is designed with this as a feature. It follows that a successful litigant before the Commission is generally entitled to proceed on the basis that a decision in its favour will stand, in the absence of an appeal being filed within the time prescribed. There is a discretion in the Commission to extend the time for filing an appeal. Such a discretion will not however be lightly or automatically exercised, particularly if the application is made after the time for appeal has expired. The fact that there will be no prejudice to a respondent party by an extension of time being granted is one factor which the Commission will take into account, but will not be solely determinative of the matter. In this context the cost and inconvenience of litigation not brought within the limitation period prescribed is a matter to which regard may properly be had when an application for extension of time is made. The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to all the circumstances before it." 6 Those observations have been repeatedly applied. In this case, it appears that an appeal was lodged within time, albeit a wrong view was taken as to the Court which had jurisdiction to entertain the appeal, as the later judgment of the District Court confirmed. Once the issue of the District Court's jurisdiction had been drawn to the appellant's attention by the respondent, the appellant promptly took the proper course of initiating these proceedings, so as to leave open the possibility of an appeal to this Court being pursued, if it was found that the District Court had no jurisdiction to entertain the appeal brought to it. 7 I am satisfied that in the circumstances of this case, where there was a real question as to whether an appeal from a conviction of an offence under the Dangerous Goods Act could be taken to the District Court, given the provisions of s 11 of the Crimes (Review and Appeal) Act, as the respondent's consent to the application properly conceded, that justice requires that this application for leave to extend time should be granted. 8 The jurisdictional question has been resolved by the District Court. Thereby, the appellant ought not to be entirely deprived of exercising its appeal rights. The history of these proceedings and the respective conduct of parties, properly lead to that conclusion. The respondent has been under no misapprehension that the appellant sought to challenge his Honour's judgment on appeal. To refuse this application, in those circumstances, would work an injustice, it not being properly open to conclude that the respondent had, in the circumstances, a proper expectation of having a 'vested right' in the judgment below. 9 That conclusion is reinforced by two further considerations. Another hearing before the Chief industrial Magistrate took place on 13 and 14 November 2006, in relation to a separate offence under the Occupational Health and Safety Act, arising out of the same events. There has been no judgment as yet, in respect of the Occupational Health and Safety Act charge. The hearing of the Dangerous Goods Act charge proceeded on 5 December, when judgment was given, in circumstances where it was common ground that reference, at the least, was made to the hearing of 13 and 14 November. 10 The parties have, as yet, been unable to obtain a copy of the transcript of the proceedings in November or December 2006, including the transcript of the ex tempore judgment. The grounds of appeal will challenge his Honour's conclusion on the evidence that the appellant had kept dangerous goods in excess of the prescribed quantity. That conclusion will be challenged on the basis that the evidence before his Honour was not capable of supporting any inference, or any inference beyond reasonable doubt, that the prescribed quantity had been exceeded. 11 In the circumstances, where not even a transcript of his Honour's December 2006 judgment is available, as yet, it is not possible to come to any concluded views as to the appellant's prospects on appeal. Justice could not, however, permit the leave here sought being refused, because a positive view in favour of the appellant's prospects of success on appeal, is not able to be formed, in those circumstances. Orders 12 For the reasons given, I granted the amended application for an extension of time to appeal. The notice of appeal will be filed on the basis that it must be expected that the notice may later need to be amended, once the transcript of the judgment and the hearings below become available. ------------------------ 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.