SCHAFER & ALHMWU v COLEIRO [1997] IRCA 189

DECISION NO:189/97 CATCHWORDS INDUSTRIAL LAW - complaint of unlawful termination - application by employer for review of decision of judicial registrar - application filed outside time limit prescribed by Industrial Relations Court Rules - whether discretion to extend time limit should be exercised in favour of employer - principles relevant to exercise of discretion discussed - whether appropriate case to grant a stay of the order of the Judicial Registrar Industrial Relations Court Rules o. 74 r. 3 Gregory Alan Norman v Besser Industries (Northern Territory) Pty Limited unreported, Full Court, 1 August 1996 Brodie-Hanns v MTV Publishing Limited (1996) 67 IR 298 Coyne v Ansett Transport Industries (Ops) Pty Ltd unreported, Full Court, 24 September 1996 Potter v Pilot Freight Pty Ltd unreported, Marshall J, 1 July 1996. Kylie Jane SCHAFER & ALHMWU v Lily COLEIRO VI 4342R of 1995

Before: MARSHALL J Place: MELBOURNE Date of hearing: 13 MAY 1997 Date of judgment: 13 MAY 1997

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VI 4342R of 1995 B E T W E E N : Kylie Jane SCHAFER & ALHMWU Applicants A N D Lily COLEIRO Respondent BEFORE: MARSHALL J PLACE: MELBOURNE DATE: 13 MAY 1997 MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The notice of motion be dismissed. Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VI 4342R of 1995 B E T W E E N : Kylie Jane SCHAFER & ALHMWU Applicants A N D Lily COLEIRO Respondent BEFORE: MARSHALL J PLACE: MELBOURNE DATE: 13 MAY 1997 REASONS FOR JUDGMENT Delivered ex tempore - revised from the transcript In this matterI am satisfied that leave should not be granted to the respondent pursuant to o. 74 r. 3 of the Industrial Relations Court Rulesto file an application for review of a decision of a Judicial Registrarout of time. I dismiss the respondent's notice of motion. The Full Court in Coyne v Ansett Transport Industries (Ops) Pty Ltd (unreported, Full Court, 24 September 1996) endorsed certain principles as being relevant to exercise of the Court's discretion to extend time under section 170EA(3)(b) of the Industrial RelationsAct 1988 as it then stood. The principles are set out in my judgment in Brodie-Hanns v MTV Publishing Limited (1996) 67 IR 298. It was conceded by Mr McNab for the respondent that the principles there set out, while not dealing directly with o. 74 r. 3, are relevant; especially, I would add, in circumstances where o. 74 r. 3 has been recently amended by deletingthe requirement for special circumstances. The principles set out are, firstly, that special circumstances are not necessary and that the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to extend. On that principle, I am not positively satisfied that the prescribed period should be extended. There is no acceptable explanation for the delay which makes it equitable to extend time. The respondent contended in an affidavit sworn on 10 April 1997 that following the adjournment of the directions hearing in the matter she awaited receipt of a notification of a further Court hearing date but did not receive anything in relation to the hearing until on or about 24 March 1997. This morning the respondent gave evidence before me which is totally contrary to her affidavitevidence. The evidence she gave was that she was informed by correspondence from the union representing the applicant in this matter, the LHMU, that she was facing Court proceedings on 8 and 9 October 1996. The respondent failed to attend Court on 8 October 1996. Judicial Registrar Millane heard the case and made orders for compensation against the respondent. Not only is there no acceptable reason for the delay in seeking a review in circumstances where the respondent should have been aware that she was at risk of having orders made against her if she did not attend on 8 October, which does not make it equitable to extend time, but further it cannot be equitable to extend time where the respondent is not frank with the Court in her affidavit evidence and gives contrary answers vive voce. I take a very dim view of the respondent's credibility in this matter. I am satisfied that principle one is of no assistance to her. The second principle referred to in Coyne is that action taken by the applicant to contest the termination, other than applying under the Act, would be relevant to the discretion to extend time. Such action will show thatthe decision to terminate is actively contested. It may favour the grant of an extension of time. In formulating that principle in Brodie-Hanns, I had regard to the action taken by the applicant in that case to ventilate her matter before the Employee Relations Commission of Victoria. I decided that whilst that factor might have been in her favour, other factors were against the extension of time. Here there has been no action taken by the respondentto justify the termination other than an indication to an officer of the union that because of a lack of financial resources she wished not to have the matter go to Court. There is no evidence before me that justification of the decision to terminate was actively pursued, other than in an affidavit sworn today in which allegations are made as to the alleged misconduct of the applicant. Having formed the view I have about the credibility of respondent, I remain extremely sceptical as tothe veracity of what is contained therein. The third point is that prejudice to the respondent, including prejudice caused by delay, weighs against the granting of an extension of time. Here it is a question of prejudice to the applicant caused by the delay. On 8 October 1996 the applicantbecame entitled to a sum of money as a result of an order of this Court. The respondent has not done anything other than to file, on 17 April 1997, an application for review, which wassome six months or so after the decision of the Judicial Registrar and is clearly outside the 21 day time limit for the filing of such applications under the rules of Court. In the interim the applicant has been caused the inconvenience of having to go to the extent of getting the sheriff involved in the proceedings to recover what was rightly hers according to the order of the Judicial Registrar, which is an order of the Courtas explained in the Full Court decision of Gregory Alan Norman v Besser Industries (Northern Territory) Pty Limited (unreported, Full Court, 1 August 1996) in adopting my decision in Potter v Pilot Freight Pty Ltd (unreported, Marshall J, 1 July 1996). For an employee who was earning a very small amount of money in the duties in which she was engaged shortly after the termination, the denial of the amount of compensation to which the Judicial Registrar held that she was entitled is in my view an extreme prejudice. Prejudice to the applicant including prejudice caused by the delay in seeking a review of the Judicial Registrar's decision, militates against the granting of an extension of time. To the extent that the respondent finds herself prejudiced, she only has herself to blame in not making an inquiry with the Court as to what was expected of her on 8 and 9 October 1996 in relation to attending the proceedings on that day. Whilst dealing with the question of the respondent's responseto a letter from the union in relation to attending Court, I should say that I am not convinced that the respondent was being honest with Court when she denied having received letters from the Court advising her of the hearing and advising her of the judgment of the Judicial Registrar. I consider that her demeanour, her delay in responding and her method of responding to me personally was indicative of not being truthful in respect of those answers. I am also guided by the fact that there is no material indicating that any such document has been returned to the Court file undelivered. The fourth principle in Brodie-Hanns is inapplicable in the present circumstances. The fifth principle is that the merits of the substantive application maybe taken into account whether to grant an extension of time. Here it is arguable, and no more than arguable, having regard to clause three of the terms of settlement, that the respondent on review may be able to successfully submit that any order for compensationshould be confined to $2,600. It may be arguable, if a different view were takenas to the respondent'scredibility on the review, that the respondent might succeed on the merits. However in Coyne an applicant had in fact been reinstated by a Judicial Registrar but time on the review was still not extended. Here, where there is only a merely arguable case for a successful review, the respondent is not in a particularly strong position for time to be extended. I find that to the extent that the merits of the substantive application may be taken into account, they disclose no more than an arguable case and even in circumstances where there is a strong case it would take more than this factor alone to ground a successful application for extension of time. Even if I elevated the fifth principle in point of importance to a level greaterthan I think it deserves in the circumstances, there is no other consideration in the six principles said to be relevant in Brodie-Hanns and approved by the Full Court in Coyne that would be able to be of assistance to the respondent in the circumstances. On principle six, as to considerations of fairness as between the applicant and other persons in a like position, I find that this is a factor that also goes against the respondent. To extend time in this case would encourage dilatory behaviour. It would also encourage litigants to ignore Court notices and letters from opposing parties indicating that a matter is on for hearing for the Court to extend time in this case. It is not necessary for the Court to consider the question of stay. If it had have been necessary, I would have found thatthere was simply no material before the Court which demonstrated that this was an appropriate case for stay, the onus being on the party who seeks the stay to make out the case for a stay. There was no evidence as to the financial circumstances of the applicant or any evidence regarding her inability to repay, and no more than merely arguable points which do not impress me as being ones that are particularly strong so as to justify the grant of a stay. If it had have been necessary for the Court to consider the question of stay, I would have refused a stay. The order of the Court is that the notice of motion of the respondent of 17 April 1997 be dismissed. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of his Honour Justice Marshall as recorded in the transcript and revised by his Honour. Associate: Date: APPEARANCES Representative for the Applicant: Mr K Faroque Australian Liquor Hospitality & Miscellaneous Workers Union Counsel for the Respondent: Mr A McNab Solicitor for the Respondent: Belleli King Date of hearing: 13 May 1997 Date of judgment: 13 May 1997