Industrial Relations Commission New South Wales Medium Neutral Citation: Robar Enterprises Pty Ltd v Bargwanna [2012] NSWIRComm 106 Hearing dates: 12 September 2012 Decision date: 12 September 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President, Staff J, Tabbaa C Decision: Leave to appeal is refused. Catchwords: APPEAL - Application for leave to appeal and appeal - Interlocutory decision at first instance granting extension of time under s 213(4) of the Industrial Relations Act 1996 - Appeal against interlocutory decision - LEAVE TO APPEAL - Appeals from interlocutory procedural decisions, especially of a discretionary nature, are generally deprecated and discouraged, such that leave to appeal would rarely be granted - Treatment at first instance of tests in s 213(4) did not suggest any error, the appellant suffered no material prejudice as a consequence of extending time and the appeal did not raise substantial issues of principle or law or have wider implications for the jurisprudence of the Commission - Leave to appeal refused Legislation Cited: Industrial Relations Act 1996 Cases Cited: Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 De Simone Consulting Pty Ltd v Ison (No 2) [2000] NSWIRComm 269 Griffith Ex-Services Club Ltd v Federated Liquor & Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139; (2003) 125 IR 145 Integral Energy v Allen [2001] NSWIRComm 193; (2001) 107 IR 456 National Australia Bank v Cassino [2002] NSWIRComm 241; (2002) 137 IR 1 Strathfield Group v Hall [2002] NSWIRComm 373; (2002) 121 IR 158 Tab Agents Association v TAB Pty Limited (No 2) [2004] NSWIRComm 155; (2004) 136 IR 305 Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290; (2001) 109 IR 359 Category: Principal judgment Parties: Robar Enterprises Pty Ltd (Appellant) Darren Roger Bargwanna (Respondent) Representation: Mr D Mahendra of counsel (Appellant) Mr A Hatcher SC (Respondent) Blackwell Short Lawyers (Appellant) The Transport Workers' Union of New South Wales (Respondent) File Number(s): IRC 742 of 2012 Decision under appeal Date of Decision: 2012-06-08 00:00:00 Before: Backman J File Number(s): IRC 307 of 2012 DECISION OF THE COMMISSION 1This matter concerns an appeal by Robar Enterprises Pty Ltd ("the appellant") from an ex tempore decision of Backman J given on 8 June 2012. In the decision her Honour granted an extension of time under s 213(4) of the Industrial Relations Act 1996 ("the Act") with respect to an application by Darren Roger Bargwanna ("the respondent") to enforce rights under s 210 of the Act. 2When the matter came on for hearing on 12 September 2012 the Full Bench called on the parties to address the question of leave to appeal as a threshold matter. Having heard the parties the Full Bench refused leave. What follows are short reasons for that refusal. 3Mr Bargwanna was a lorry owner-driver who was engaged by the appellant pursuant to a contract of carriage regulated under Ch 6 of the Act. He became involved in a dispute with the appellant that was the subject of conciliation proceedings in the Commission. The respondent was represented by his union the Transport Workers' Union of NSW ("TWU"). The dispute was not resolved and on 12 January 2012 the dispute escalated. 4On 13 January 2012, the TWU had sought to have the dispute re-listed before the Commission and there had been some discussion with the appellant's legal representatives about settlement of the dispute. However, by letter dated 31 January 2012, the appellant terminated Mr Bargwanna's engagement. On 2 February 2012, the TWU filed an application under s 314 of the Act on behalf of the respondent seeking his reinstatement with backpay or, in the alternative, compensation. 5On 27 February 2012, the s 314 application was the subject of an unsuccessful conciliation conference before Backman J. Later that day, a TWU organiser, Mr Ken Hurst, became aware for the first time of s 210 of the Act, and realised it might be of assistance to Mr Bargwanna's claim. He discussed the matter the next day with a TWU legal officer, who told him that the matter might be out of time, but that he should raise it at the next conference before Backman J on 6 March 2012. 6In conciliation proceedings concerning the s 314 application on 6 March 2012, the TWU applied for the matter to be stood over for seven days while it considered whether to make a s 210 application. That application was not opposed, and was granted by Backman J. The s 213 application was subsequently filed on 8 March 2012, 16 days out of time. 7Section 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. 8In her decision Backman J considered each of the three factors in s 213(4). In respect of the reason for, and the length of, the delay in making the application her Honour found that it was not a lengthy delay. In respect of the reason for the delay her Honour noted it was essentially ignorance of the existence and availability of s 210 and considered that on the state of the authorities this may not be an "acceptable reason". However, Backman J noted what was said by the Full Bench in Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139; (2003) 125 IR 145: [12] Having made that observation, a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3) - (4) of the Industrial Relations Act 1991) in this way: Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view. [13] Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice President in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case". [14] To arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues, such as the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual circumstances giving rise to late lodgement, including any attempts to lodge an application. The Commission needs only to be satisfied that there is a "sufficient reason" to accept the late application, having "particular" regard to the matters identified. When viewed in that way, the maxim concerning ignorance of the law emerges as even less relevant than otherwise may be the case. The use of the maxim in applications to extend time in unfair dismissal matters has the real potential for error, as this matter highlights. 9As for hardship, Backman J found that the respondent's evidence regarding personal and financial hardship was a factor to be taken into account in Mr Bargwanna's favour. 10As to the third factor, the conduct in relation to which the order is sought, her Honour found that taking Mr Bargwanna's evidence at its highest his application had some prospect of success. In granting the out of time application her Honour found it was "finely balanced". Leave to appeal 11The appellant submitted leave to appeal should be granted because: (a)the case involved determinations on jurisdictional questions of such importance that, in the public interest, leave to appeal should be granted; (b)the applicant had not adduced any, or any sufficient evidence, concerning: (i)the reason for the delay in commencing the proceedings; and (ii)the hardship the applicant would allegedly suffer if time for filing was not extended, and, therefore the decision granting leave was made contrary to established principle and law and has wider implication for the jurisprudence of this Commission; (c)such matters are not merely decisions of a procedural nature related to case management, but rather, are decisions on important threshold issues which are determinative of substantive rights. The correction of clear and manifest error on the part of the Commission is also a matter of such importance that, in the public interest, leave should be granted. 12In opposing leave being granted the respondent submitted: (a)a decision as to whether to grant an extension of time with respect to an application is an interlocutory procedural decision. Appeals from interlocutory procedural decisions, especially of a discretionary nature (as here), are generally deprecated and discouraged, such that leave to appeal would rarely be granted; (b)the appellant submits, in support of its application for leave to appeal, that the decisions involved "determinations on jurisdictional questions of such importance that, in the public interest, leave to appeal should be granted". This submission should be rejected entirely. There is no "jurisdictional question" in this appeal, nor is any such question anywhere identified in the appellant's written submissions or in the notice of appeal. The notice of appeal makes it clear that the alleged errors arose in the exercise of the statutory discretion; (c)no question or issue, jurisdictional or otherwise, is identified which would attract the public interest. In the absence of any demonstration that the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of the Commission, including whether the decision has widespread practical application, or raises issues going to the proper administration of justice, leave to appeal will usually not be granted. If an appeal does not raise questions or issues of this character or nature, then the mere demonstration of error will not be sufficient; (d)leave to appeal should be refused because the appellant has not and cannot identify any substantial prejudice that has accrued to it as a result of the decision of Backman J to extend time (or which would accrue to it as a result of a refusal of leave to appeal); (e)the extension of time application was one which turned on its own facts and the inferences properly to be drawn from those facts, and in which the outcome was ultimately one that was adverse to the appellant. Without more, such a case will not attract the grant of leave to appeal. 13A significant hurdle the appellant faces is that, as the respondent submitted, appeals from interlocutory procedural decisions, especially of a discretionary nature, are generally deprecated and discouraged, such that leave to appeal would rarely be granted: Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 at 269; De Simone Consulting Pty Ltd v Ison (No 2) [2000] NSWIRComm 269 at [2]-[5]; Integral Energy v Allen [2001] NSWIRComm 193; (2001) 107 IR 456 at [13]; Strathfield Group v Hall [2002] NSWIRComm 373; (2002) 121 IR 158 at 167; National Australia Bank v Cassino [2002] NSWIRComm 241; (2002) 137 IR 1 at [7]-[8]; Tab Agents Association v TAB Pty Limited (No 2) [2004] NSWIRComm 155; (2004) 136 IR 305 at [8]. 14It is quite clear that the decision of Backman J was an interlocutory procedural decision: see Griffith Ex-Services Club Ltd v Federated Liquor & Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190; Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290; (2001) 109 IR 359 at [24]. 15Backman J considered each of the factors in s 213(4). Her Honour first had regard to the length of the delay, which on any test, was not excessively long. Next, her Honour had regard to the reason for the delay, which her Honour counted against the respondent. However, it is obvious her Honour was aware the need to take all relevant factors into account in determining an extension of time application: Hurrell. 16As to the next matter, hardship, her Honour had regard to the respondent's "affidavit of 5 June 2012" (the "affidavit" was in fact a statement of evidence) that was tendered in support of the extension of time application. Mr Bargwanna was not subjected to cross-examination on his statement. In that statement the respondent gave detailed evidence about his financial circumstances. As the respondent submitted, his evidence included that in connection with his termination by the appellant that he had used up his savings and almost completely exhausted his line of credit, that he had been forced to sell his truck and had exhausted the funds from the sale, that he had used up the redraw facility on his mortgage to pay his living expenses and other debts, and that he had been continually concerned about feeding and supporting his family, causing strain on his marriage and resulting in him taking anti-depressants. Senior counsel for the respondent submitted: The critical relevance of this was that in his s 314 application, he could only claim $46,000 compensation (by reason of the cap on compensation in s 314(4)), which would be insufficient to properly compensate him, whereas in the s 213 application, he had been able to claim $99,843 (because there was no cap upon monetary orders in s 213(2)(c)). 17Backman J accepted that the evidence regarding hardship demonstrated that: [A] successful application under s 213 followed by an order for compensation could improve his present financial circumstances to a greater extent than might otherwise be the case if he were successful only in relation to the earlier dismissal application under s 314. ... Her Honour took this into account in the respondent's favour. 18Finally, taking Mr Bargwanna's case at its highest, her Honour considered it had some prospects of success. 19We have given careful consideration to the arguments raised by the appellant regarding, in particular, that the respondent had not adduced any, or any sufficient evidence, concerning the factors of delay and hardship. Her Honour's treatment of these matters does not suggest any error, the appellant suffers no material prejudice as a consequence of extending time and the appeal does not raise substantial issues of principle or law or have wider implications for the jurisprudence of the Commission. Orders 20For the reasons given, the Full Bench confirms the order made on 12 September 2012 that leave to appeal is refused. ********** 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. Decision last updated: 14 September 2012