Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations [2014] NSWIC 2

Industrial Court New South Wales

Medium Neutral Citation: Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations [2014] NSWIC 2 Hearing dates: 9 September 2014 Decision date: 22 October 2014 Jurisdiction: Industrial Court of NSW Before: Boland AJ Decision: The Court makes the following orders: (1) The applicant, Tanwar Enterprises Pty Ltd, is granted an extension of time to appeal until 25 July 2014. (2) The decision and orders of her Honour Magistrate Goodwin in Matter No CIM 2013/00196197 are stayed pending the outcome of the appeal. Catchwords: APPEAL - Application to extend time to appeal from decision of Chief Industrial Magistrate in which the Chief Industrial Magistrate found the applicant contravened a provision of an industrial instrument contrary to s 357 of the Industrial Relations Act 1996 - Fine imposed - Money order made - Application to stay Chief Industrial Magistrate's decision and orders - Application of s 197 of Industrial Relations Act 1996 - Difficulty encountered in applying s 197(2) - Whether period for filing appeal 28 days or 21 days - Applicant six days out of time if period 21 days - Mistake by solicitor - Triable issue - Whether proceedings before Chief Industrial Magistrate civil or criminal - Period to file appeal extended stay granted Legislation Cited: Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Industrial Relations Act 1996 Industrial Relations (General) Regulation 2001 Cases Cited: Auscare Corporation Pty Ltd v New South Wales Department of Commerce [2007] NSWIRComm 271 BHP Steel Ltd v The Australian Workers' Union, New South Wales [2003] NSWIRComm 151 Bluescope Steel Limited v The Australian Workers' Union, New South Wales [2007] NSWIRComm 307; Transport Workers' Union of Australia New South Wales Branch v Australian Document Exchange Pty Ltd trading as Grace Couriers [2000] NSWIRComm 74 Brady v Kennedy t/as "Sardines" (1999) 91 IR 258 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Cavacuiti v Toyota Motor Corp Australia [2002] NSWIRComm 341;(2002) 122 IR 247 Golden Swan Investments (Australia) Pty Limited v Workcover Authority of NSW (Inspector Pryor) [2006] NSWIRComm 402 Ian Robertson v Marrickville Council [2003] NSWIRComm 394 Legge v Coffey Engineering Pty Ltd [2000] NSWIRComm 278; (2000) 103 IR 282 Salter Rex & Co v Ghosh [1971] 2 QB 597 WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 Category: Interlocutory applications Parties: Tanwar Enterprises Pty Limited (Applicant) NSW Industrial Relations (Respondent) Representation: H Simons (Applicant) NSW Department of Finance and Services (Respondent) File Number(s): IRC 573 of 2014

INTERLOCUTORYJudgment 1Tanwar Enterprises Pty Ltd ("Tanwar" or "the applicant") has sought to appeal from a decision of her Honour Magistrate Goodwin sitting as the Chief Industrial Magistrate ("the CIM"). The appeal was brought under s 197(1) of the Industrial Relations Act 1996 ("IR Act"). Tanwar had been prosecuted by the respondent, New South Wales Industrial Relations, under s 357 of the IR Act for failing to pay a taxi driver, Mr Ranjeev Kumar, annual leave in accordance with the Taxi Industry (Contract Drivers) Contract Determination 1984. 2The CIM found that on the balance of probabilities Tanwar contravened a provision of an industrial instrument. The CIM imposed a civil penalty of $1,000.00 and ordered the applicant to pay Mr Kumar $1,464.42 within 28 days. Costs were awarded to the respondent. 3An interlocutory issue arises regarding whether the appeal was filed within the prescribed time. Tanwar contended the appeal was filed within time, but in the event it was found to have been filed out of time, the applicant seeks to extend the time to appeal. There is also the question of a stay of the CIM's orders, which the applicant has sought.

Relevant legislation 4Section 357(1) of the IR Act provides: 357 Civil penalty for breach of industrial instruments (1) If an industrial court is satisfied that a person has contravened a provision of an industrial instrument, it may order the person to pay a pecuniary penalty not exceeding $10,000 (a civil penalty). 5An "industrial court" is defined in s 356 to include: (b) the Local Court constituted specially for the purposes of this Part by an Industrial Magistrate sitting alone. 6Section 197 of the IR Act governs appeals from the Local Court and applies the provisions of the Crimes (Appeal and Review) Act 2001 (previously known as the Crimes (Local Courts Appeal and Review) Act 2001) to any appeal regardless of whether it is civil or criminal in nature: see Auscare Corporation Pty Ltd v New South Wales Department of Commerce [2007] NSWIRComm 271. 7Section 197 provides: 197 Appeals from Local Court (1) An appeal lies to the Commission in Court Session against: (a) any order made under this Act by the Local Court for the payment of money or the dismissal by the Local Court of an application for such an order (including a dismissal on the ground that it does not have jurisdiction to deal with the application), or (b) any conviction or penalty imposed by the Local Court for an offence against this Act or the regulations, or (c) a civil penalty imposed under this Act by the Local Court for a contravention of an industrial instrument or the dismissal by the Local Court of proceedings for such a civil penalty, or (d) a civil penalty imposed under Division 7 of Part 13 of the Work Health and Safety Act 2011 by the Local Court for a contravention of a WHS civil penalty provision or the dismissal by the Local Court of proceedings for such a civil penalty. (2) The provisions of the Crimes (Local Courts Appeal and Review) Act 2001 (sic) that relate to: (a) appeals from the Local Court to the District Court or Supreme Court, and (b) the decisions of the District Court or Supreme Court on any such appeal, and (c) the carrying out or enforcement of any such decision, (including those provisions as applied by section 70 of the Local Court Act 2007) apply, subject to the regulations under this Act, to any appeal referred to in subsection (1). (3) (Repealed) (4) The Commission in Court Session may refer a matter the subject of an appeal back to the Local Court with such directions or recommendations as it considers appropriate. (5) Section 179 (Finality of decisions): (a) applies to a decision or purported decision of the Local Court in proceedings to which this section applies in the same way as it applies to a decision or purported decision of the Commission, and (b) without limiting that section, applies to a decision or purported decision of the Commission in respect of proceedings to which this section applies. Note. The provisions of this section are extended to similar proceedings under other industrial relations legislation eg section 14 of the Annual Holidays Act 1944; section 14 of the Long Service Leave Act 1955.

Consideration 8Backman J in Golden Swan Investments (Australia) Pty Limited v Workcover Authority of NSW (Inspector Pryor) [2006] NSWIRComm 402 at [6]-[9] identified a difficulty in applying s 197: [6] Section 197(2) purports to apply the provisions of the CLCARA [Crimes (Local Courts Appeal and Review) Act 2001] that relate to appeals from a Local Court to the District or Supreme Court subject to the regulations under the Act. The rationale for this is not immediately clear. First, the provisions within the CLCARA which provide for appeals to the District Court are in quite different terms from the provisions which provides for appeals to the Supreme Court. Section 11 of the CLCARA for example which governs appeals to the District Court against conviction or sentence provide for appeals as of right. It also provides for a period of 28 days in which to lodge an appeal. Section 52 of the CLCARA also provides for appeals as of right to the Supreme Court against conviction or sentence but only on a ground that involves a question of law. The section also requires applications for appeals under the section to be made, "within such period after the date of conviction or sentence as may be prescribed by rules of Court". Section 53 of the same Act provides for appeals against conviction or sentence and requires leave to appeal on a question of fact or on a question of mixed law and fact. Secondly, although I am not aware of any Regulations under the Act governing the time within which appeals may be lodged under s 197(1), Rule 42 of the Industrial Relations Commission Rules 1996 (the Rules) provides that unless otherwise provided an appeal must be made within 21 days after the decision appealed against, or such further time as the Commission allows. [7] Rule 42 was recently held to have no practical effect in relation to appeals to which s 189 of the Act applied: Kirk Group Holdings Pty Ltd and Anor v WorkCover Authority of New South Wales (Inspector Childs) [2006] NSWIRComm 355 at [24]. In that judgment the relevant proceedings involved an extension of time application in which to lodge an appeal under s 196(1) of the Act. Neither s 189 of the Act nor Rule 42 of the Rules has any application to s 196 however, which instead applies the provisions of the Criminal Appeal Act 1912. [8] In the present application the applicant's contention that s 197(1)(b) applies to the proceedings is made without the support of any binding authority which has determined the issue. The effect of s 197(2) in its present form has been considered by the Full Bench in this jurisdiction in WorkCover Authority of New South Wales (Inspector Ian Hannah) v Keough's Plant Hire Pty Ltd [2006] NSWIRComm 118 at [11]; T&M Industries (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Sequeira) [2006] NSWIRComm 25; (2006) 151 IR 130 at [17]- [21]; and Scevola v WorkCover Authority (NSW) (Inspector Sealey) (2005) 142 IR 233 at [11] to [13]. It should be noted in relation to Scevola v WorkCover Authority that the issue was not fully determined in that judgment because the relevant proceedings related to a conviction before the provisions of the CLCARA became operative. The Full Bench judgment in WorkCover Authority of New South Wales (Inspector Franke) v Amer Kanawaty [2005] NSWIRComm 361 also refers, briefly, to the provisions of s 53(1) of the CLCARA in the context of a cross appeal. The judgment sets out the provision but makes no determination as to whether or not it applied to those proceedings. [9] In the absence of any judicial authority on the application or otherwise of the provisions of the CLCARA to appeals brought under s 197(1) of the Act, the relevant provision, in my view is s 189 of the Act which provides that appeals to a Full Bench brought under Part 7 of the Act must be made within 21 days after the date of the decision appealed against, or "within such further time as the Full Bench..." allows. [10] It follows from this brief analysis and my findings, that the present application for leave to appeal and appeal has been filed out of time, although only by a relatively short period, namely, 3 days. 9The difficulty identified by Backman J was that s 197(2) purports to apply the provisions of the Crimes (Appeal and Review) Act that relate to appeals from a Local Court to the District or Supreme Court subject to the regulations under the IR Act. The provisions in the Crimes (Appeal and Review) Act relating to appeals from the District Court (Pt 3) are different to those relating to appeals to the Supreme Court (Pt 5). Amongst the differences is the time for filing appeals. In relation to a District Court appeal, a defendant's appeal as of right must be lodged within 28 days of the sentence (s 11(2)). Leave to appeal must be sought if the appeal is lodged out of time, as long as it is lodged within three months of sentence or refusal of annulment application (s13). In relation to a Supreme Court appeal as of right (involving a question of law alone), an appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court (s 52(2)). The same period applies in respect of appeals to the Supreme Court requiring leave (a question of fact, or a question of mixed law and fact) (s 53(4)). 10Despite being out of time, Backman J was inclined to grant the extension of time application and did so. 11In relation to the present proceedings, it is not clear to me, because the issue was not satisfactorily addressed by either party, which provisions of the Crimes (Appeal and Review) Act apply to an appeal under s 197 of the IR Act. Are they the provisions that apply to an appeal to the District Court or the Supreme Court? This has implications for the extension of time application and the question of leave to appeal and the nature of the appeal proceedings. In this last respect it may be noted, for example, a conviction appeal to the District Court is now a re-hearing on the transcript of the Local Court hearing, unless the District Court grants leave for fresh evidence to be called or directs witnesses to attend for cross-examination. 12As to the extension of time application, even if the period allowed to file an appeal is 21 days I am inclined to grant the extension. On the basis of a 21-day period the appellant was 6 days late. According to the affidavit of Howard Norman Simons, solicitor assisting counsel who appeared for the appellant in the Local Court proceedings, Mr Simons believed the period for filing was 28 days but was subsequently advised by counsel, it seems, that the period in which to file is 21 days, but that advice came after the 21-day period had expired. 13The conclusion about 21 days seems to have derived from the fact it was initially intended to file the appeal in the Supreme Court. That being so, s 52(2) of the Crimes (Appeal and Review) Act provides that an appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court. The Industrial Relations Commission Rules 2009 provide in r 8.2 that an appeal is to be filed within 21 days after the date of the decision appealed against, or within such further time as the Commission may allow. Whether r 8.2 applies remains, in my view, a moot point. 14Despite some reservations, I accept Mr Simon made an honest mistake in relation to a provision that is not at all clear as to its application, and given the discretion allowed to the Court to extend time beyond 21 days, the short delay in filing the appeal is not a reason for refusing to extend time to appeal: see Salter Rex & Co v Ghosh [1971] 2 QB 597; Brady v Kennedy t/as "Sardines" (1999) 91 IR 258 at 269. 15A further consideration, and one that is also relevant to the appellant's stay application, is the prospects of the appellant succeeding in the appeal: WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298; Legge v Coffey Engineering Pty Ltd [2000] NSWIRComm 278; (2000) 103 IR 282; Cavacuiti v Toyota Motor Corp Australia [2002] NSWIRComm 341;(2002) 122 IR 247. 16The main issues on appeal appear to be that the CIM failed to apply the criminal standard of proof, but that even if the criminal standard did not apply, the CIM failed to apply the civil standard established by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. There were other grounds of appeal including that the CIM failed to consider all of the relevant evidence, failed to give adequate reasons and denied the applicant procedural fairness. However, the central issue appears to be the standard of proof. 17The Industrial Court has generally regarded proceedings under s 357 of the IR Act as civil proceedings involving the imposition of a civil penalty: Bluescope Steel Limited v The Australian Workers' Union, New South Wales [2007] NSWIRComm 307; Transport Workers' Union of Australia New South Wales Branch v Australian Document Exchange Pty Ltd trading as Grace Couriers [2000] NSWIRComm 74; BHP Steel Ltd v The Australian Workers' Union, New South Wales [2003] NSWIRComm 151; Ian Robertson v Marrickville Council [2003] NSWIRComm 394. However, there is no authoritative decision in that respect. 18I do note s 383 of the IR Act: 383 Procedure (1) The Criminal Procedure Act 1986 and other Acts regulating the procedure before the Local Court (but not the Civil Procedure Act 2005) apply to the exercise of any jurisdiction by the Chief Industrial Magistrate or other Industrial Magistrate, except as provided by the regulations under this section. (2) The regulations may make provision for or with respect to procedure and other matters relating to the exercise of any such jurisdiction of the Chief Industrial Magistrate or other Industrial Magistrate that does not concern proceedings for an offence. 19Clause 43(3) of the Industrial Relations (General) Regulation 2001 specifies that the civil procedures provisions do not apply to s 357 proceedings before an Industrial Magistrate. The procedures under the Criminal Procedure Act 1986 apply. 20In the exercise of my discretion I am prepared to accept there is a triable issue. I, therefore, propose to grant the extension of time and the stay. In doing so, I should add that I regard the question of whether leave is required as a live issue, as is the nature of the appeal.

Orders 21The Court makes the following orders: (1)The applicant, Tanwar Enterprises Pty Ltd, is granted an extension of time to appeal until 25 July 2014. (2)The decision and orders of her Honour Magistrate Goodwin in Matter No CIM 2013/00196197 are stayed pending the outcome of the appeal.

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