Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees v The Queensland Public Sector Union of Employees & Anor [2003] ICQ 15 (2003) 173 QGIG 274

274 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 May 2003 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commissioner Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees AND The Queensland Public Sector Union of Employees AND WorkCover Queensland (No. C32 of 2003) PRESIDENT HALL 9 May 2003 DECISION It is the effect of s. 346 of the Industrial Relations Act 1999 that where a decision is announced at a hearing any appeal must be commenced within 21 days after the announcement. If the decision is given through the Registrar, the appeal must be commenced within 21 days after the release of the written decision. The section does not expressly address the case where a decision is announced at a hearing and written reasons are subsequently released. That is what happened here. In those circumstances, the Industrial Officer of the appellant who had carriage of the matter adopted the view that the appeal might be filed at any time within 21 days after the release of the written reasons. She was wrong. The release of written reasons does not enlarge the period of 21 days which runs from the announcement of the decision at the hearing, see Queensland Health v. Gary Robinson and Brian Grimley (1999) 160 QGIG 202. For reasons developed in Schostakowski v. Australian Meat Holdings Pty Ltd (2002) 169 QGIG 284 the 21 day period should be seen as an assessment by the legislature that, in the ordinary category of case, justice will best be served by adhering to a 21 day limitation period. However, by s. 346(2) the Court is armed with the discretion to depart from the 21 day limitation period where the ordinary rule would operate unfairly in the circumstances of a particular case. This is such a case. The Industrial Officer thought that the appellant had 21 days from the release of the written reasons because the -- 1 of 2 -- 23 May 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 275 appellant had sought legal advice about the matter and had been given advice which was incorrect. No-one has been prejudiced in relation to the conduct of any appeal. I am not satisfied that moneys paid under this agreement would not have been paid if the appeal had been filed in time. In a case such as this, where the decision given at the hearing was not supported by reasons, any application to appeal lodged prior to the release of the written reasons “could not have set out with any precision the grounds of appeal because those grounds could only be formulated after the reasons had become available”, Queensland Health v. Gary Robinson and Brian Grimley (1999) 160 QGIG 202 at 203 per Williams, President. The application to appeal was filed within 14 days of the release of the written reasons. This seems to me to be a classic case in which to apply the dictum “We never like a litigant to suffer by the mistake of his lawyers”, Rex and Co v. Ghosh [1971] 2 QB 597 at 601 per Lord Denning MR. I order that the time for filing an application to appeal be extended to 22 April 2003. Dated 9 May 2003. D.R. HALL, President. Released: 09 May 2003 Appearances: Mr R. Reed, directly instructed, for the appellant. Mr T. Bradley, instructed by Corrs Chambers Westgarth Solicitors, for WorkCover Queensland. Mr J. Merrell, instructed by Quinlan, Miller & Treston, for The Queensland Public Sector Union of Employees. -- 2 of 2 --