Archive: Jan 17, 2023, 12:00 AM
The Full Bench has dismissed an appeal brought out of time, finding that the appellant failed to progress his appeal with proper expediency, and that the appeal had no prospects of success.
The appellant was employed at a Catholic college under a written contract of employment that the appellant maintained was for a fixed term. The appellant’s position was abolished, and after the appellant did not accept an alternative teaching position, the respondent informed the appellant that he was regarded as having repudiated his contract of employment and his employment was at an end. The appellant commenced proceedings in the Commission for a denied contract benefit, which were subsequently dismissed.
The appellant brought an appeal against a procedural decision of the learned Commissioner to set aside his summons to call the Roman Catholic Bishop as a witness, which was made prior to the substantive hearing in his first instance unfair dismissal application. The appellant lodged the appeal against this decision approximately one year out of time and sought an extension of time to bring the appeal.
The appellant contended there were three reasons for the delay in lodging his appeal. They were pressure and preoccupation with the substantive hearing as a self-represented litigant; confusion with specific sections of legislation and regulations; and challenges with his attempts to seek pro bono legal advice.
The Full Bench noted that not only was the extension of time brought around one year out of time, but that it was also lodged after the hearing of his substantive claim; after the decision dismissing his substantive claim; after he appealed the decision dismissing his substantive claim; after filing four interlocutory applications in the earlier appeal; after a decision dismissing all of his interlocutory applications in the earlier appeal; after he commenced a further appeal in the Industrial Appeal Court against the decision in his interlocutory applications in his earlier appeal; and after his earlier appeal was heard and the decision reserved.
The Full Bench noted that the four main factors to be considered in the exercise of its discretion were the length of delay, the reasons for the delay, the prospects of success of the appeal, and the extent of any prejudice to the respondent, noting however that these were not exhaustive, and that other factors may be relevant.
The Full Bench considered that the appellant’s appeal had no prospects of success and that this was fatal for his case for an extension of time. The Full Bench found that even if the appeal had some merit, all the other relevant factors sided against the appellant.
The Full Bench noted that the length of the appellant’s delay of 12 months was extreme and to overcome this required the appellant to show that the other relevant factors were in his favour. The Full Bench found that the appellant had not shown any reason for the delay from the conclusion of the substantive hearing to the date he eventually filed the appeal, and that the delay had caused real detriment to the respondent that was incurable.
The Full Bench considered that the appellant’s dilatory conduct was a further reason to refuse to extend the time to appeal, and found that the appellant had not prosecuted his appeal with proper expediency.
The appeal was dismissed.
The decision can be read here.