Abu-Dabat v Gibbons [2004] ICQ 44 (2004) 176 QGIG 542

542 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 July, 2004 INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 346(2) – application for extension of time Tony Abu-Dabat AND Jason Clifford Gibbons (No. C21 of 2004) PRESIDENT HALL 8 July 2004 REPORT ON DECISION (as edited) In giving his decision from the Bench on 1 July 2004, the President stated: “This matter commenced on a complaint by a State Public Officer within the meaning of the Justices Act 1886, being an inspector duly appointed under the Industrial Relations Act 1999, which was filed on 13 May 2003. The complaint initiated proceedings under s. 399 of the Industrial Relations Act 1999 directed at the recovery of wages said to be due and unpaid to a former employee of the respondent. The matter was listed before Mr Gordon, Industrial Magistrate, for 10 June 2003. There was no appearance for the respondent. Having satisfied himself that the respondent had been served within the meaning of s. 56 of the Justices Act 1886 Mr Gordon elected, as he was entitled to do, to deal with the matter ex parte. In the end result, he found that wages in the amount of $1,421.72 were owing and he made appropriate orders requiring the defendant to pay that amount plus certain costs of court, in default, levy and distress. I reject the claim made by the applicant for an extension of time that by that decision Mr Gordon convicted the applicant of anything. The matters were, from first to last, civil proceedings. Subsequently, the applicant sought to reopen the proceedings before the Industrial Magistrate. Mr Gordon listed that matter for 14 October 2003. At that hearing, it emerged that the application to reopen was itself out of time. Pursuant to the discretion vested in his Worship by the Justices Act 1886 Mr Gordon extended time for the application to reopen. However, on the substantive hearing the difficulty confronting the applicant squarely emerged. The applicant had been served by post within the meaning of s. 56 of the Justices Act 1886. The complaint that in fact the document did not come to the notice of the applicant was one which Mr Gordon could not entertain. In those circumstances, the application to reopen was dismissed. What subsequently happened verged on tragedy. The applicant sought to appeal against the “decision” of the Industrial Magistrate. Unfortunately, that appeal was taken to the District Court of Queensland whereas it should have been brought to this Court. I am satisfied that that was a result of a bona fide error. The documents relating to the District Court appeal are before me. It is apparent that there was some confusion in the applicant’s mind whether the appeal was against the decision of Mr Gordon to refuse a reopening or against the earlier decision of Mr Gordon making orders ex parte. In any event, after the District Court proceedings had been discontinued on 23 March 2004, the applicant sought relief in this Court. Once again it is not clear whether the proposed appeal is against the refusal of the application to reopen or against the earlier ex parte proceedings. It is clear that the appeal is out of time. The period limited for an appeal to this Court from a decision of an Industrial Magistrate is 21 days, (see s. 346 of the Industrial Relations Act 1999). Whichever decision of the Industrial Magistrate is said to be the decision targeted by the appeal, the matter is out of time. The period set by s. 346 has been set by the Legislature. It is not a provision contained in a rule of Court. The Legislature has made a judgment and, in the ordinary case, justice will be served if the 21 day time limit is observed. It is for the applicant to demonstrate a reason why the 21 day time limit should be departed from. To do that, an applicant must at least show reasonable prospects of success. Here, regrettably, the applicant has no prospects of success. If this appeal were to be heard, I will be in the same difficulty confronting Mr Gordon in June and October of 2003. The Justices Act 1886 sets up a regime for service; the regime for service has been complied with; it is not open to an Industrial Magistrate or to this Court to go behind the legislation and in some way treat a document as not being served when it has been served within the meaning of the Act. In all those circumstances, I dismiss the application for leave to appeal.”. Dated 8 July 2004. By the Court, [L.S.] G. D. SAVILL, Acting Industrial Registrar. Appearances: Mr A. Revell on behalf of the Appellant. Mr J. Gibbons, the Respondent. -- 1 of 1 --