Dump Truck Pty Ltd v Richards [2010] ICQ 49

CITATION: Dump Truck Pty Ltd AND Sally Anne Richards (C/2010/62) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 346 (2) - application for extension of time Dump Truck Pty Ltd AND Sally Anne Richards (C/2010/62) PRESIDENT HALL 24 November 2010 DECISION [1] On 16 August 2010, a Deputy President of the Queensland Industrial Relations Commission published a Decision about an application by Sally Anne Richards to recover moneys in lieu of long service leave. The Deputy President determined that Ms Richards had established an entitlement to the payment, but was unable to quantify the amount to be paid. The matter was listed for further hearing. Directions were issued to ensure that at that further hearing any outstanding matters would be resolved. [2] By a Decision dated 7 September 2010 released the same day, the Deputy President quantified the amount of money to be paid and ordered payment of that amount. The Respondent to Ms Richard's application, viz., Dump Truck Pty Ltd, filed an Appeal to this Court against the Decision of 7 September 2010. The Appeal was brought within the time limit of 21 days set by s. 346(1) of the Industrial Relations Act 1999 (the Act). However, the Appeal was, in substance, about the earlier Decision of 16 August 2010. (In part, the confusion arose because Dump Truck Pty Ltd had sought to use the hearing about quantum to persuade the Deputy President to reverse the Decision of 16 August 2010.) Subsequently, Dump Truck Pty Ltd filed an Amended Application to Appeal attacking the Decision of 16 August 2010. The Appeal was filed on 5 November 2010. It was plainly out of time. The time limit had expired before the Decision of 7 September 2010 was released. [3] Dump Truck Pty Ltd now seeks an extension of time. I proceed on the basis of the established view that s. 346(1) of the Act represents an assessment by the Legislature that the administration of justice will best be served if a time limit of 21 days is insisted upon, though in particular cases injustice may result. An applicant for an extension of time has a positive burden of establishing that the indulgence permitted by s. 346(2) of the Act, should be granted to the applicant. Here, although the extent of the delay is quite considerable, Ms Richards knew from an early stage that Dump Truck Pty Ltd was unaccepting of the Decision of 16 August 2010. Ms Richards had that knowledge because she was a party to the quantification exercise within which Dump Truck Pty Ltd sought reconsideration of the Decision of 16 August 2010. There is an explanation for the delay. Had Dump Truck Pty Ltd been legally represented, it may not have engaged in an attempt to persuade the Deputy President to reconsider the Decision of 16 August 2010. Dump Truck Pty Ltd may well have been advised to bring an appeal against the Decision of 16 August 2010 forthwith. Additionally, though as a matter of first impression the Decision of 16 August 2010 is a "decision" within the extended definition at Schedule 5 of the Act, there is some scope for argument that until the Decision of 7 September 2010 expanded upon the earlier order by quantifying the amount to be paid, there was not a fully constituted "decision" for the purposes of the provisions of the Act dealing with the recovery of money. Certainly, Ms Richards held nothing which might have been enforced. In those circumstances, I can understand that Dump Truck Pty Ltd's lay representative thought that time had not commenced to run. [4] Obviously, Ms Richards will be prejudiced if Dump Truck Pty Ltd is permitted to bring an appeal out of time. However, the prejudice arises not from the conduct of Dump Truck Pty Ltd but from the exercise of the discretion at s. 346(2) of the Act. It is a prejudice which inevitably accompanies a favourable exercise of the discretion. The prejudice faced by Dump Truck Pty Ltd if the indulgence is not granted is a loss of an opportunity to attack a decision always alleged to have been flawed. [5] In all cases involving exercise of the discretion at s. 346(2) of the Act, the strength of the Applicant's case is a material consideration. However, as is not infrequently the case on an application for extension of time, the materials before the Court do not enable formation of an opinion of the strength of applicant's case. It would frustrate the purpose of s. 346(1) to require that the prospective appeal be (largely) argued before the discretion of s. 346(2) of the Act is exercised. [6] The Order of the Court is that Dump Truck Pty Ltd have an extension until 5 November 2010 to appeal against the Decision of the Commission given 16 August 2010 in the matter of Sally Anne Richards AND Dump Truck (B/2010/13). Dated 24 November 2010. D.R. HALL, President. Released: 24 November 2010 Appearances: Mr C. Joy of Craig Joy Workplace Consulting for the Applicant. Mr R. Bryce for the Respondent. -- 1 of 1 --