A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16

INDUSTRIAL COURT OF QUEENSLAND CITATION: A1 Rubber (Aust) Pty ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 PARTIES: A1 RUBBER (AUST) PTY LTD ACN 138 835 195 (appellant) v SANDRA CHAPMAN (OFFICE OF INDUSTRIAL RELATIONS) (respondent) FILE NO: C/2019/22 PROCEEDING: Appeal DELIVERED EX TEMPORE ON: 30 October 2019 HEARING DATE: 30 October 2019 MEMBER: Martin J, President ORDER: The appeal is dismissed. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – APPLICATION TO APPEAL OUT OF TIME – where the appellant filed an application to appeal thirteen days out of time – where the appellant seeks leave for the time to file the application to appeal to be extended – where the director of the appellant contends that he was not aware of the limitation period – where the appellant’s grounds of appeal involve a broad assertion of bias or pre-judgment by a number of persons, including the Commissioner whose decision is the subject of appeal – whether the appeal has prospects of success – whether leave ought to be granted Industrial Relations Act 2016, s 557, s 564 CASES: Chapman v State of Queensland [2003] QCA 172, cited Neophytos Foundadjis v Collin Bailey [2007] ICQ 10, cited Nickel Seekers Limited v Vance [1985] 1 Qd R 266, cited APPEARANCES: J Randel (director) for the appellant J Murdoch instructed by Crown Law for the respondent HIS HONOUR: The respondent has applied for leave to be represented by a lawyer and has filed submissions with respect to that application. Mr Randel has said that he cannot see why the respondent needs representation, on the basis that the matter is not complex or, as he -- 1 of 5 -- 2 understands it, not complex, and because he is not represented. That, though, with respect, is not the test and I am of the view that there are matters in this application to appeal which raise issues of some complexity and require construction of the Act. This applies, in particular, to the application for leave to extend time and also the apparent accusations of either apprehended or actual bias. I will be assisted by having the submissions made on questions that are fundamentally legal rather than factual and so leave is granted. … On the 5th of July 2019, Commissioner Knight issued a decision making an order that the applicant pay the sum of $8615.45 to Anthony Bright, being the pro rata long service leave which she found was owing to him. On 9 August 2019 the applicant filed an application to appeal, some thirteen days out of time, and now seeks leave under s 564, subsection (2) of the Industrial Relations Act 2016 for that time to be extended. The respondent opposes that grant of leave. On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey [2007] ICQ 10 in the following way: “This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period.” I note that s 346 of the 1999 Act is reproduced as s 564 in the current Act. In applying those principles, this Court will not grant leave unless it is positively satisfied that it is proper to do so. I will consider the merits of the appeal before finally determining the application for extension. As was said in Chapman v State of Queensland [2003] QCA 172: “In determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application … An extension of time will not be granted if the court considers the appeal to be plainly hopeless.” In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed. Now, as I said, I will consider the merits of the appeal, but I will deal first with the issue of the explanation of the delay and the extent of the delay. The delay in filing was not great and the respondent does not assert it was prejudiced by it. The explanation for the delay given by Mr Randel (who appears for the applicant on the application for leave to appeal) was that the applicant was not aware of the limitation period. He is, as he rightly points out, not a lawyer. He told me that he was attempting to conduct this case on a realistic cost basis. He told me that he had not read the Act and did not find out about the limitation period until after it had expired. -- 2 of 5 -- 3 While I accept that the applicant was not aware of the time requirement, that cannot be a panacea for an error of this kind. The time provision is not hidden. Section 564 is quite clear. The applicant appears to make the complaint that he was not told of the time limit when he spoke to the Commissioner’s Associate. In his submissions today, Mr Randel told me that he had previously received advice on how to proceed and other points from the Associate. Whether or not that occurred, I want to make this perfectly plain. Not only does a Commissioner’s Associate have no duty to advise a party of time limits or other statutory requirements, but, also, an Associate must not give such advice. Associates are not employed to provide legal or technical advice to the parties appearing before the Commission and must refrain from doing so. I turn now to the issue of whether the case sought to be conducted has prospects of success. This involves a consideration of the grounds of appeal, the written submissions made by the parties and the oral submissions provided today. The grounds of appeal do not comply with either the Act or the rules. It is a discursive document which might serve in another place as submissions following a hearing, but not on an appeal of this kind. The respondent in her written submissions correctly identifies that the vast majority of the matters raised by the applicant fall into the category of submissions or arguments on issues of fact. In the absence of leave, s 557 confines an appeal to errors of law or an excess or want of jurisdiction. In paragraph [6] of his submissions in reply Mr Randel confines the application to the ground of error of law and refers to s 557 (1). In the hearing today, I gave Mr Randel the opportunity to identify the errors of law upon which he relied, but he could not. Doing the best I can and having considered all the material filed on behalf of the applicant, the error of law which appears to be contained within those documents is a broad assertion of bias or pre-judgment by not just the Commissioner, but also the various inspectors involved, two other members of the Commission who conducted conciliation conferences, the employee who was the person subject to the long service leave claim and a general practitioner called to give evidence with respect to the medical condition of Mr Bright, the employee. The application to appeal concerns Commissioner Knight’s decision. None of the other persons referred to made any decisions which could be the subject of an appeal. The basis of the assertion could be either apprehended or actual bias on the part of a large number of persons who are not part of the Queensland Industrial Relations Commission. From the argument and submissions today, it appears that Mr Randel was under the misapprehension that inspectors are part of the Queensland Industrial Relations Commission and that the Commission had in fact brought these proceedings. The test to be applied in matters of this kind are well-known. Importantly, there is the general rule that a party to tribunal proceedings who knows of a possible ground for disqualification of a member of the tribunal must not refrain from objecting at the relevant time and then wait and take the objection in an appeal once the decision in the proceeding proves unfavourable. I refer to Nickel Seekers Limited v Vance [1985] 1 Qd R 266. On his own material, Mr Randel had formed the view he now espouses at the time of the mention conducting by Commissioner Knight on 28 September 2018. At that mention the following is recorded. The Commissioner sets out some remarks about what will need to be done with respect to the proceeding and raises the possibility of a conference where the issues can be better ventilated. Ms Jackson, who appeared for the applicant for payment below, said that they would be open to it. The Commissioner asked Mr Randel and Mr Randel said this: -- 3 of 5 -- 4 “Well, every time I’ve turned up, they just keep telling me we’re going to lose no matter who it is, which member it is. Everyone keeps telling me I’m going to lose.” The Commissioner said: “Why do you think they keep doing that? Do you know?” Mr Randel said: “Well, because no one has seen the disclosure. You know, until you get to all the documents on the table, how can you be in a position to state that?” Further discussion takes place. At page 1-5 of the transcript, Mr Randel is recorded as referring to: Mr Bright’s condition, him coming back from an eight week holiday overseas, seeing his GP to get a letter, and raises the fact that the doctor is prejudiced from day one and can’t be relied on. The Commissioner says: “Well, I mean, ultimately, it’s a matter for submissions and then the Commission can make a determination. But the reason I’m raising it with you is out of fairness to yourself, Mr Randel, so you appreciate that.” At no point in that hearing or at the hearing of the application proper was any application made for recusal or any statement made concerning possible apprehended bias or, indeed, actual bias. In the submissions made and filed on the 16th of October, Mr Randel says at paragraph [16]: “At Commissioner Knight’s prehearing, she asked if the parties would consider a further conciliation, as this matter didn’t appear to her to be one for a full hearing in her court. I said, no as the prior two conciliators just kept telling me I was going to lose, so what’s the point? She then asked me in a smug pre-judgmental way, ‘And why do you think that is, Mr Randel?’ She gave me the direct impression that she also had already decided the matter in favour of Mr Bright. Due to the cultural prejudice that exists at the Industrial Relations Commission at all levels, all along, clearly, the Commission knew every logical and reasonable argument and evidence that I submitted had no bearing on their pre-judged decision that they intended to make, that they would simply find the employee thought he had an illness that was a motivation for resignation.” I’ve referred to that because it establishes to my satisfaction that Mr Randel formed the view, at least at that time on the 28th of September, that there was a pre-judgment. But Mr Randel took no further steps and proceeded to the hearing and said nothing further. The applicant’s case falls at that hurdle. But, even if that problem were to be put to one side, there is nothing advanced by the applicant which points to apprehended bias. An offhand comment made at a mention does not satisfy the test. The situation is well summarised in Halsbury’s Laws of Australia, where, at paragraph [10-12885] the following is stated: “The mere claim that there is an apprehension of bias does not establish that a reasonable apprehension exists, as this is a matter which must be determined objectively. In applying the apprehension of bias test, there must first be an -- 4 of 5 -- 5 identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits. And, second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.” There is nothing in the applicant’s submissions which support a conclusion of bias. The only identification of anything that might lead the decision-maker to decide a case other than on its legal and factual merits is the apprehension Mr Randel felt at the hearing on the 28th of September and his views of the conduct of: inspectors, who are not a part of the Commission; Mr Bright, who is not a part of the Commission; and the general practitioner, who is not a part of the Commission. There is no evidence, apart from the apprehension of Mr Randel, that people were against him. That does not provide a basis in law for a finding of bias. The application to appeal and the submissions in support do not answer the relevant test. It follows, then, that the appeal is without merit. This application to appeal was out of time by only thirteen days, but no sufficient reason was given for that, apart from ignorance of the law. The appeal itself has no prospects of success. And so the justice of the case does not require any indulgence to be granted. The application to appeal is dismissed. … MR MURDOCH: Your Honour, there is no application for costs. HIS HONOUR: Thank you. Adjourn the Court, please. -- 5 of 5 --