Banks v Australian Agriculture Pty Ltd [2004] ICQ 30 (2004) 176 QGIG 2

2 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 May, 2004 ######################################################################################################################### ## INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 331 – application to dismiss appeal Gregory Banks AND Australian Agriculture Pty Limited (No. C24 of 2004) PRESIDENT HALL 23 April 2004 REPORT ON DECISION (as edited) In giving his decision from the Bench on 20 April 2004, President Hall said: “On the 26 th day of February 2004 the Queensland Industrial Relations Commission released a decision in matter number B1275 of 2003. There is an appeal against that decision. The appeal was filed within the 21 day time limit. Regrettably, there was non-compliance with the provisions of the Industrial Relations (Tribunals) Rules 2000 dealing with the matter of service of the application to appeal. For reasons developed in WorkCover Queensland v Prime Movers (North Queensland) Proprietary Limited 167 QGIG 31, I am satisfied that the requirements of r. 111 are not mandatory. I am equally satisfied that there is power, whether properly based on r. 113 or alternatively on s. 331 of the Industrial Relations Act 1999, to dismiss an application for non-compliance with the rules about service. On such an application to dismiss, the appellant is not in the same position as an appellant who seeks an extension of time. An appellant seeking an extension of time has the burden of making out a case to justify the extension of time when the time limit already states the rule which should be followed in the normal course. Here, the burden of making out a case for dismissal of the appeal falls upon the respondent. I am not satisfied that, in the circumstances of the case, that burden has been discharged. There seems to be no evidence of prejudice and in any event no claim of prejudice so far as the conduct of the appeal is concerned. Indeed, given that the appeal is limited to errors of law and excess of jurisdiction, it is difficult to see how such prejudice could arise. The delay was very short. The matters plainly did come to the attention of the respondent. If the application to dismiss were granted, the appellant would lose all opportunity to ventilate its case. Notwithstanding that I can understand that any litigant who has been successful at first instance is distressed that an appeal is brought to reopen the matters, particularly when late notice is given of that appeal, it seems to me that the interests of justice will best be served by hearing the appeal on the merits. In those circumstances, I reject the application to dismiss.”. Dated 23 April 2004. By the Court, [L.S] G.D. SAVILL, Acting Industrial Registrar. Appearances: Applicant in person. Mr A.A.J. Hornemann-Wren, directly instructed for the respondent. -- 1 of 1 --