100422393

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES JOSE R AGUILERA ACOSTA

APPELLANT

 -and-

 GERARD F BRODERICK & BRYAN F STOKES

RESPONDENTS

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  SENIOR COMMISSIONER A R BEECH

  COMMISSIONER J H SMITH

DELIVERED MONDAY, 24 MAY 2004

FILE NO/S FBA 11 OF 2004

CITATION NO. 2004 WAIRC 11557

_______________________________________________________________________________

Catchwords  Industrial Law (WA) – Complaint to Registrar – Conduct of industrial agents – Appeal against determination of Registrar – Appeal against decision of Industrial Magistrate – Applications to extend time within which to appeal to Full Bench – Principles in relation to extension of time – Merit – Delay – Prejudice – No power in Industrial Magistrate to extend time – Industrial Magistrate not in error – Appeal dismissed – Industrial Relations Act 1979 (as amended), s26(1)(c), s27(1)(n), s49(3), s84(3), 112A(5)(d) – Industrial Relations (Industrial Agents) Regulations 1997, regulations 12(2), 12(4), 14(4), 15(1), 15(3)(a) and (b), 16(3), 17, 18(2), 19(1)(a), 19(1) and (2), 19(5)(b), 20 - Industrial Magistrates’ Courts (General Jurisdiction) Regulations 2000, regulation 7 – Freedom of Information Act 1992 - Public Interest Disclosure Act 2003 - Industrial Relations Commission Regulations 1985 (as amended)

Decision  Applications to extend time within which to appeal dismissed; Application to extend time within which to file appeal books dismissed; Application to strike out the appeal dismissed; Appeal No FBA 11 of 2003 dismissed

Appearances

Appellant   Ms E Alvarez, as agent

Respondents   Mr G F Broderick, on his own behalf and Mr B F Stokes, on his own               behalf

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1         This appeal by the above-named appellant, Jose Rogelio Aguilera Acosta (hereinafter called “Mr Acosta”), is against the decision of the Industrial Magistrate’s Court at Perth, given on Thursday, 24 July 2003 in matter No M 200 of 2002.  The appeal purports to be brought under regulation 20 of the Industrial Relations (Industrial Agents) Regulations 1997 (hereinafter called “the IA Regulations”).  Since there is specific and express power enacted for the Governor to make regulations to provide for appeals to the Full Bench from disqualification or cancellation of registration of industrial agents, and the regulations have been made, it would seem clear that s84 of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”) does not apply (see s112A(5)(d) of the Act).

2         The decision appealed against is the order of the Industrial Magistrate made on 24 July 2003 (see page 135 of the appeal book (hereinafter referred to as “AB”)), whereby he struck out an appeal against a decision of the Registrar.  There were two sets of reasons for decision, one of 28 March 2002 and one of 24 July 2003.  The first appears at pages 60-126 (AB) and the second at pages 127-134 (AB).

3         The grounds of appeal are somewhat lengthy and appear at pages 3-7 (AB)). 

4         The notice of appeal was filed in the Commission on 12 March 2004 against the decision made on 24 July 2003.  There was reference to another notice of appeal, which was said to have been rejected by the Registrar.  There is a notice of application to extend time to file a notice of appeal, which was filed on 14 August 2003.  There is an application on behalf of the respondents to strike out the appeal which was filed on 18 March 2004.

5         The appellant appeared by his agent, Ms Ema Paola Alvarez Olivares, whose warrant was filed on 19 March 2004, and who appeared for him on this appeal.  There is a notice of application to extend time within which to institute the appeal filed on 19 March 2004.

6         There is a notice of application to extend time within which to extend the time to lodge the appeal filed on 19 March 2004, on behalf of the appellant.  There is also a notice of application to extend time for the appeal books to be lodged, filed on 26 March 2004.

BACKGROUND

Complaint to the Registrar

7         By letter dated 29 May 2001, the appellant lodged a complaint to the Registrar against the respondents purporting to be under regulation 12(2) of the IA Regulations (see pages 8-9 (AB)).  This arose out of their alleged conduct as industrial agents while representing the appellant, Mr Acosta, in claim No M 200 of 2002.  The respondents, Gerard F Broderick and Bryan Francis Stokes, are, of course, the respondents in this appeal.

8         The Registrar requested that the claimant make a statutory declaration according the requirements of regulation 12(4) of the IA Regulations.

9         I should add that the letter of complaint of 29 May 2001 alleged a number of allegations against Mr Broderick and Mr Stokes in respect of a case in which they both represented him:-

(a)          That Mr Acosta was not provided with a schedule of fees and that Mr Acosta was overcharged by the respondents.

(b)          That Mr Broderick represented to him that Mr Stokes, his co-partner, was a criminal law lawyer and now was practicing in industrial law as well, when Mr Stokes was not a lawyer.

(c)          That there was a complaint that Mr Stokes failed to inform him in an open and frank manner about his concerns about the case.

(d)          That Mr Stokes did not look after his interests when he failed to inform the Commission of an absentee witness and failed to inform him of the importance of the presence of those witnesses.

(e)          That it is alleged that Mr Stokes breached confidentiality because he made comments about the case to a witness, Mr McMullen, on the day of the hearing, and, in particular, told Mr McMullen that the case was getting difficult and it would be necessary to settle.

(f)           That Mr Stokes caused significant harm to the case because he treated them to withdraw on the day of the court hearing leaving them without any choice than to accept an offer which Mr Acosta did not want to accept.  He then engaged Mr Crossley, then another industrial agent.

(g)          That Mr Broderick and Mr Stokes threatened to summon them to court if they did not pay $3,000.00 and they therefore pressured him to accept the offer at the court.

10      On 18 June 2002, the statutory declaration required by the Registrar dated 17 July only, was lodged (see page 10 (AB)), or at least it is so stamped.  This constituted, for the Registrar’s purposes, a formal complaint under regulation 12(2) of the IA Regulations (“the complaint”) (see pages 11-15 (AB)).

11      The Registrar then commenced an investigation of the complaint in accordance with the provisions of the IA Regulations.  The respondents participated in that investigation without any protest that the complaint had been lodged outside the 28 day period prescribed in regulation 12(3) of the IA Regulations.  The respondents opposed the complaint and responded to the Registrar in writing.

12      By a determination dated 3 September 2001, which the Magistrate found, and it was not disputed, had been forwarded to Mr Acosta before 8 October 2001, the Registrar set out his findings and reasons therefor.

13      The Registrar’s determination was that there were not sufficient grounds to conclude that there was a complaint which required the action contemplated by regulation 15(3)(b) of the IA Regulations ((ie) that there were no reasonable grounds for the complaint).

14      Regulation 15(3)(a) provides that if a complaint is made under regulation 12(2), as this complaint purported to be, then the Registrar is to make a determination as to whether or not there are reasonable grounds for the complaint.  If the determination is that there are reasonable grounds for the complaint, the Registrar is then required to resolve the complaint by conciliation under regulation 16 of the IA Regulations.  The Registrar can do no more than that.  However, if the complaint is not resolved within 28 days of the Registrar giving notice to the complainant and the other party or parties under regulation 14(4) of the IA Regulations, then he is required to issue a certificate authorising the complainant to initiate proceedings before an industrial magistrate.  He has no power in that process to deregister an agent.

15      Mr Acosta filed another statutory declaration, dated October 2001 (see page 27 (AB)), together with a letter of 4 October 2001 and other documents.

16      By letter dated 1 February 2002 to Mr Acosta, the Registrar, giving reasons, advised that he did not find that the complaint had reasonable grounds such as to justify a further inquiry (see pages 16-19 (AB)).

17      The Registrar forwarded further reasons for decision dated 16 May 2002, with a letter dated 16 May 2002, both also being stamped 18 June 2002 (see pages 21-24 (AB)).  In that material the Registrar reiterated that, following a review of a letter of Mr Acosta of 9 April 2002, he was still of the view that the complaints were not of sufficient substance to warrant further action by him under the IA Regulations.  The Registrar also advised that he had no authority to deregister the agents.  He also said that if his letter of 3 September 2001 did not serve as a certificate under the IA Regulations, then the determination of 16 May 2002 would.  He also said that his letter of 3 September 2001 was intended to serve as a notice under regulation 14(4) of the IA Regulations.

18      Regulation 14(4) requires the Registrar, after he holds an inquiry in relation to a regulation 12(1) complaint, to make a determination and notify the complainant and the agent.  However, this was a regulation 12(2) complaint.  Regulation 12(2) of the IA Regulations reads as follows:-

“A client of an industrial agent may lodge with the Registrar a written complaint alleging that the industrial agent may have failed to comply with a condition to which the registration was subject.”

This complaint itself was made outside the 28 day time limit (Reg 12(3)).

19      Mr Stokes and Mr Broderick defended the complaint at first instance and provided written responses.

The Proceedings in the Industrial Magistrate’s Court

20      Mr Acosta made a claim to the Industrial Magistrate’s Court, which was filed on 18 June 2002.  By it he claimed that the above-named respondents should be deregistered and sought relief accordingly.

21      In the Industrial Magistrate’s Court Mr Acosta was represented by Mr Stephen Kemp (of Counsel) and the respondents were represented by Mr Stokes.

22      The claim in the Industrial Magistrate’s Court at first instance, it was submitted, was an appeal from the Registrar’s determination under regulation 19(1)(a) of the IA Regulations.  There is no prescribed form for commencing such an appeal, although such a form is contemplated by regulation 19(2) of the IA Regulations.  Under the provisions of regulation 8 of the Industrial Magistrates’ Courts (General Jurisdiction) Regulations 2000 (hereinafter called “the GJ Regulations”), no proceeding in the Industrial Magistrate’s Court is invalid only by reasonable failure to comply with the practice and procedure provided for in the regulations.  The court is given the power to make orders on such terms as it thinks fit to remedy any defect caused by the failure to comply with any practice.  Thus, it was submitted, that the claim should be accepted as an appeal under regulation 19(1)(a) of the IA Regulations and an appropriate order made to give effect to the extent that it might be necessary.

23      In evidence, the Registrar, Mr John Arthur Spurling, who was called by the respondents to give evidence, referred to his decision and reasons of 16 May 2003 and 3 September 2003 and stated that he:-

(a)          Accepted the complaints as complaint properly made under regulation 12(2) of the IA Regulations.

(b)          Did not consider whether the complaint was lodged beyond the 28 day period referred to in regulation 12(3) of the IA Regulations; and

(c)          Did not apply his mind to the question further and therefore did not make a finding that the circumstances of the complaint were exceptional and justified an exemption of the time period set out in regulation 12(3).

24      On 6 August 2002, Mr Stokes filed an interlocutory application in the Industrial Magistrate’s Court seeking to strike out the application or claim lodged and purporting to be an appeal against the decision of the Registrar.

25      On 27 September 2002, Mr Broderick was joined as joint applicant.

26      On 6 November 2002, Mr Stokes appeared to represent both himself and Mr Broderick and submitted that the matter be dealt with on the basis that the claim was out of time and that the court was functus officio.

27      His Worship considered the Registrar’s decision of 3 September 2001 at pages 64-66 (AB) and the further decision of the Registrar dated 16 May 2002 at pages 67-70 (AB).  In addition, he considered the claim of 18 June 2002 which named Mr Broderick and Mr Stokes as respondents.

28      His Worship considered the relevant legislation and the IA Regulations, and observed at paragraph 71 of his reasons (see page 82 (AB)):-

(a)          That regulation 19(4) says that on appeal an Industrial Magistrate may confirm or reverse the determination of the Registrar.

(b)          The only determination the Registrar can make in respect of a complaint under regulation 12(2) is that there are or there are not reasonable grounds for the complaint (regulation 15(3)), or where appropriate that the complaint is of a type which falls within any of the paragraphs (a) to (c) of regulation 15(1).  The Registrar cannot cancel the registration of the agent upon determining that there are reasonable grounds for complaint made under regulation 12(2).

29      He then went on to consider the GJ Regulations and the Interpretation Act 1984 (as amended).

30      He then went on to conclude that (see page 122 (AB)) the manner and circumstances in which the Registrar purported to issue a certificate clearly demonstrated that he was not acting in accordance with any power given to him by the legislation either expressly or impliedly.  What the Registrar did was inconsistent with the statutory scheme and done without any lawful foundation.  It had no jurisdictional basis.

31      He went on to find, further, as follows.  It certainly did not have the effect of giving to Mr Acosta a legal right to do something which the regulations impliedly, if not expressly, prevented him from doing.  That was to institute proceedings before an Industrial Magistrate under regulation 17 of the IA Regulations where the Registrar had concluded that there were no reasonable grounds for the complaint and when there had been no endeavour by the Registrar to resolve the complaint by conciliation as the necessary, preliminary step to the institution of proceedings before an Industrial Magistrate under regulation 17.

32      Thus, His Worship held that it was not the intention of Parliament that the Registrar, by an unauthorised act, not contemplated expressly or impliedly by the legislation, could give to the complainant rights which the express provisions of the legislation did not give him.  Further, His Worship held that it could be said that there was an apparent intention in the legislation that a complainant in respect of whose complaint a determination had been made that there were no reasonable grounds, should not have such rights.

33      His Worship then went on to hold that, for those reasons, it was his opinion that no valid certificate was issued by the Registrar by means of his further decision of 16 May 2002, or at any time which enabled or entitled Mr Acosta to initiate proceedings pursuant to regulation 17.  The circumstances in which the Registrar purported to issue a certificate, and the uncertain terms that he used when he raised it in his further decision was evidence which demonstrated that the Registrar had doubts about whether he had done so previously or whether he could then issue a certificate under regulation 16(3) of the IA Regulations.  This led the Magistrate to the conclusion that the Registrar did not in fact issue any certificate at all.

34      As to the subsequent claim of 18 June 2002, the claim of Mr Acosta dated 18 June 2002, does not indicate expressly whether it was the intention of Mr Acosta to initiate proceedings under regulation 17 or to appeal under regulation 19.  That was not surprising, given that Mr Acosta had adopted a form used for claims made pursuant to the GJ Regulations.

35      Under regulation 19 of the IA Regulations, an Industrial Magistrate has power to cancel registration of an industrial agent only if the Industrial Magistrate has previously found that there are reasonable grounds for a complaint under regulation 12(2) and the parties have agreed that the Industrial Magistrate may deal with the matter as if it were a proceeding instituted pursuant to regulation 17.

36      His Worship then decided that he would proceed upon the basis that Mr Acosta’s claim of 18 June 2002 was intended to invoke the provisions of regulation 19.  He then went on to determine that the matter should proceed.  He then heard and determined it further on 24 July 2003, noting that he had held that the proceeding which the complainant purported to initiate by documents lodged on 18 June 2002 was an appeal and they were made pursuant to regulation 19 of the IA Regulations (my emphasis).

37      His Worship then considered an application to him to extend time within which the application to him should be made in the course of which he noted that the key word in regulation 18(2) governing the interpretation of that sub-regulation, is “hearing”.  He went on then to say that he considered that it was not the intention of regulation 18(2), that the procedural provisions of the GJ Regulations are to be applied to the commencement of appeals pursuant to regulation 19 of the IA Regulations.  He found that the only provision in the GJ Regulations concerning extension of time is that which appeared in regulation 7 which is limited in its application to the practice and procedure in a hearing which has been properly commenced.

38      He also found that it was relevant in the interpretation of the provisions of regulation 18(2), that whereas regulation 19(2) contains no express power to extend the time within which an appeal may be commenced, by contrast, regulation 12(3) which deals with the lodgement of complaints to the Registrar specifies a time within which complaints must be lodged and that empowers the Registrar, in prescribed circumstances, to extend the period within which the complaint may be lodged.

39      He therefore held that the time prescribed by regulation 19(2) of the IA Regulations is not to be extended.  It was therefore, he held, the intention of Parliament that regulation 18(2) of the IA Regulations together with the provisions of regulation 7 of the GJ Regulations, have the effect that the time period of 21 days specified in regulation 19(2) within which an appeal may be commenced, cannot be extended.  For those reasons, he dismissed the application for extension of time and struck out the appeal contained in the claim filed.  That decision was made on 24 July 2003 (see page 135 (AB)).

PRINCIPLES, ISSUES AND CONCLUSIONS

Introduction and Principles

40      This appeal to the Full Bench was instituted out of time.  Pursuant to s84(3) of the Act, an appeal against the decision of the Industrial Magistrate’s Court under s84 of the Act must be instituted within 21 days of the decision against which the appeal is brought.  This appeal was not filed and therefore not instituted within the prescribed 21 days.  Indeed, the notice of appeal was filed on 12 March 2004 which was seven months and about three weeks after the date of the decision appealed against which was made on 24 July 2003.  It should be noted that the application in the Industrial Magistrate’s Court at first instance purporting to be an appeal against the Registrar’s decision was filed on 18 June 2002.

41      The principles which apply to applications to extend time to appeal to the Full Bench are well settled.  The Industrial Appeal Court has decided the principles in Ryan v Hazelby and Lester t/a Carnarvon Waste Disposals (1993) 73 WAIG 1752 (IAC) and Tip Top Bakeries v TWU (1994) 74 WAIG 1189 (IAC).  These matters have been summarised and applied in Rosemist Holdings Pty Ltd v Khoury (1999) 79 WAIG 645 at 645-6 (FB) (see also Gallo v Dawson [1990] 93 ALR 479.  I reproduce those principles summarised hereunder.

42      The grant of an extension of time within which to appeal is not automatic.  The object of a power to extend time which exists in this Full Bench, and has been so held, in relation to s49(3) and s84(3) of the Act is like all such powers and is for the sole purpose of enabling the Full Bench to do justice between the parties.

43      In order to determine whether rules, and, indeed, in this case the Act, will work an injustice by the time limit which the Act imposes, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequence for the parties of the grant or refusal of the application for extension of time.  It is, of course, always necessary to consider the prospects of the applicants succeeding in the appeal.  It is also necessary to bear in mind in such applications that upon the expiry of the time for appealing, the respondent has a vested right to retain the judgement unless the application is granted.  The initial step in determining whether there would otherwise be an injustice to the appellant may often be to decide whether the prospect of the appellant succeeding in the substantive appeal if an extension of time were granted, is a real one.

44      In Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, the Full Court of the Supreme Court of this State held that there were usually four major factors to be considered in exercising the Court’s decision to extend time. These are the length of the delay, the reason for the delay, whether there was an arguable case, and the extent of any prejudice which was suffered by the respondent.

Merit

45      It should be emphasised that this was the case where the application by way of appeal against the Registrar’s “decision” pursuant to regulation 19(2) of the IA Regulations was held to be incompetent as being out of time because there was no power in the relevant regulations to enable His Worship to extend it.

46      The claim or notice of appeal was dated 18 June 2002, and was 288 days late.  The appeal was instituted herein on 12 March 2004, and about 7 ½ months late.  The applications to extend time was dated 19 March 2004 and were out of time by a substantial amount.

47      Regulation 18(2) of the IA Regulations reads as follows:-

“In any hearing under regulation 17 or 19 the industrial magistrate is to apply, so far as is practicable, the same principles of practice and procedure as would be applied in an application before an industrial magistrate’s court exercising its general jurisdiction.”

48      Put shortly, His Worship held that regulation 18(2) and its effect in the context of the IA Regulations and the GJ Regulations, and in the context of the Act from which they derive, means it has the effect that regulation 18(2) of the IA Regulations only has application to the practice and procedure of the Industrial Magistrate’s Court during the course of the hearing.

49      This hearing can only therefore occur where the proceedings have been properly commenced in accordance with the relevant regulations.  That is because as His Worship found correctly, a hearing is “law – the trial of an action”.  Further, “hear/hearing” means “to give a formal, official judicial hearing to as to . . . a judge does”.  To “hear” means to “listen to judicially in a court of law”.

50      On a fair reading the principles of practice and procedure applicable are so far as is practicable the same principles which would be applied in an application before an Industrial Magistrate exercising general jurisdiction to which, of course, the GJ Regulations apply.

51      It is quite clear that the restrictive words “In any hearing . . .” are used in regulation 18(2) of the IA Regulations to apply practice and procedure to the hearing only, otherwise they would not be used.  It is also noteworthy that in regulation 18(2) the principles of practice and procedure which are to be applied are those “in an application before an Industrial Magistrate’s Court exercising its general jurisdiction”.  Further, a hearing is precisely that, no less and no more.  It is where the court hears what the parties and their witnesses have to say or what they or their counsel or agents have to say.  It is “The listening to evidence and pleadings in a court of law” and “the trial of a cause” (see The Shorter Oxford Dictionary).

52      (Note, too, in Estate Agents Board v Nankic [1983] 2 VR 570 (FC), the requirement to afford “an oral hearing”).

53      Further, nothing was said which would persuade me that that finding was wrong.  Regulation 18(2) only has application, therefore, to practice and procedure during the course of a hearing, as His Worship correctly held.  Regulation 19(2) is the only provision which deals with commencement of an appeal against a determination of the Registrar made under regulation 15(3) of the IA Regulations.  There is no other regulation which does.  There is no general power as there is in s27(1)(n) of the Act to extend time.  There is no particular power in the IA Regulations to extend time and no general power.

54      Further, there is in the GJ Regulations no power given to an Industrial Magistrate’s Court to extend time generally.

55      The only such provision, as I have said, is regulation 7 of the JG Regulations which is quite clearly limited in its application to the practice and procedure in a hearing because it refers to the fact that the power exists in “A court hearing an action”, and not otherwise, and that means an action which on a fair reading has been properly commenced.  Further, regulation 19(2) of the IA Regulations contains no express power to extend time and in addition, as I have said, there is no general power relating to Industrial Magistrate’s Courts to extend time.

56      By contrast the Registrar may, pursuant to regulation 12(3), and is expressly authorised by the regulation to, extend the 28 day time limit within which to file a complaint.  Had the draftsman intended that occur in relation to appeals against decisions on such complaints, then it would clearly have found its way into regulation 19 of the IA Regulations.  In my opinion, for those reasons, it is quite clear that there is a clear, express and unambiguous time limit upon the lodging of an appeal under regulation 19(2) and for the reasons which I have expressed and which His Worship expressed, there is and was no power to extend the time.  The Magistrate was right to so hold.  In particular, regulation 18(2) of the IA Regulations and regulation 7 of the GJ Regulations do not have that effect.  Accordingly, His Worship was right to dismiss the application for extension of time and strike out the appeal.  Nothing was said to persuade me otherwise.  There is no merit, or no demonstrated merit in the appeal.

57      I would add that the appellant sought orders upon appeal, implicitly, that the appeal be upheld and that the matter be remitted to the Industrial Magistrate.  The latter order is sought explicitly.

58      The other orders sought are orders that:-

(a)           A claim by Ms Alvarez, namely M 3 of 2004, in the Industrial Magistrate’s Court be joined to Mr Acosta’s claim, the subject of this appeal.

(b)          That Mr Acosta be paid by the respondents costs, damages, compensation, interest and loss of future earnings.

(c)           That Mr Broderick and Mr Stokes be deregistered as agents.

(d)          That the appellant see the Registrar’s files relating to Mr Broderick and Mr Stokes under the Freedom of Information Act 1992 or the Public Interest Disclosure Act 2003.

59      There is also reference to the respondents in the sum of $60.00, but I am not certain what the figure represents (see paragraph 7, page 7 ((AB)).

60      However, the order to join Ms Alvarez’s claim to that of her husband, Mr Acosta, is not within the power or jurisdiction of the Full Bench in this appeal.  If it becomes relevant, it is a matter for an Industrial Magistrate.  That situation would arise were this appeal upheld and the matter remitted back to the Industrial Magistrate.  If it is not, of course, then the order simply is not one which can be made even at first instance.

61      Further, the Full Bench has no power or jurisdiction to order payment of costs, damages, compensation, etc, upon this appeal.  This appeal is an appeal against the striking out of an appeal to the Industrial Magistrate under regulation 19(2) of the IA Regulations against the determination of the Registrar.

62      The Magistrate has no jurisdiction either to make those orders, except perhaps orders for costs.

63      The Full Bench in this matter cannot order deregistration of agents because that is not the subject of the appeal and it was not before the Industrial Magistrate at first instance.  The Full Bench and the Industrial Magistrate have no jurisdiction or power to order the inspection by the appellant of the Registrar’s files pursuant to the Freedom of Information Act 1992 since that is a matter for the Commissioner who holds office under that Act to administer that Act.  The Public Interest Disclosure Act 2003, of course, simply does not apply, in its terms.  No reason was submitted either to say that it should.  In any event, those matters were not before and could not be properly before the Industrial Magistrate at first instance since they are not within that jurisdiction and are therefore not matters which should be considered upon this appeal.

64      For all of those reasons, too, the appeal lacks merit.

Delay

65      Next, I come to the question of delay.  The notice of appeal was not filed until 7 ½ months after the date of the decision appealed against.  There was a notice of appeal sought to be filed in July 2003 which was rejected because it did not comply with the Industrial Relations Commission Regulations 1985 (as amended).

66      An application to extend time within which to institute the appeal was filed on 19 March 2004.  The evidence from the bar table was that the question of a fresh notice of appeal was not followed up after the rejection of the first notice because of the difficulty Mr Acosta and Ms Alvarez had in knowing what to do, the fact that English is their second language, and an illness of Ms Alvarez.  However, none of that explains why there was a nine month delay in instituting the appeal, nor did it purport to.  In particular, the Full Bench was not told of the length or nature of Mr Alvarez’s illness and therefore how it prevented for a period of nine months a further notice of appeal being filed.

67      I note that at first instance Mr Acosta was represented by counsel so that he had been able to procure advice earlier and should have been able to procure some advice about the appeal.  Further, it is noteworthy as a matter of history that the matter at first instance before the Magistrate had failed due to a similar and even greater delay.  In my opinion, there has been no adequate explanation for the delay or for the length of the delay.

68      The history of this matter is one of unexplained or inadequately explained and lengthy delays at first instance, on this appeal, and, in addition, in the complaint to the Registrar.  I will refer to that history a little later in these reasons.

Prejudice

69      Next, the obvious prejudice to the appellant if the application was not granted is that the appeal will be dismissed and there is no right of redress in relation to the decision by which Mr Acosta is aggrieved.

70      It is significant that that appeal at first instance which the Industrial Magistrate found was out of time and struck out because he had no power to extend time, and which was brought under regulation 19(1) of the IA Regulations, several months after the time limit imposed by regulation 19.  Regulation 19(2) provides that the appeal is to be commenced by notice in the approved form, lodged within 21 days after receiving the notice of determination from the Registrar.  This, the Magistrate held, occurred in October 2001.

71      There is a serious prejudice to the respondents if the application is granted. 

72      That is the case, having regard to the delay in the history of the matter and the fact that the respondents face, after three and a half years from the initial complaint to the Registrar and two very serious inadequately or unexplained delays, the existence of an appeal, the merit of which has not been established.

73      Indeed, no merit exists for the reasons which I have expressed.

Competence of Appeal

74      I now turn to a matter raised by the Full Bench (see pages 35-36 and 37-39 of the transcript on appeal).  I will deal with it this way.  The learned Magistrate made a decision that the complaint before him was made under regulation 19 of the IA Regulations.  That finding was not appealed against and therefore it stands.  Under regulation 20 of the IA Regulations, an appeal against a decision made under regulation 17 or regulation 19(5)(b) must be brought within 21 days after the party receives notice of the decision, which, in this case, was not a time limit complied with.

75      In this case, there was a determination that there were no reasonable grounds for a complaint under regulation 12(2) of the IA Regulations, and the appeal was brought under regulation 19(1) and (2), as His Worship held.  To that applies the time limit prescribed by regulation 20 of the IA Regulations.  If a person is aggrieved by, inter alia, a decision of an Industrial Magistrate under regulation 17 (which this claim was held not to be), or regulation 19(5)(b) (which it was held to be), then there is no right of appeal afforded by the IA Regulations, unless the appeal is brought within 21 days.

76      First, there was no decision under regulation 17 or regulation 19(5)(b) of the IA Regulations.  There was a decision that the application was out of time, that there was no jurisdiction or power to extend time, and that the application was therefore incompetent and a nullity.  No right of appeal to the Full Bench therefore existed under regulation 20.  Even if that were wrong, there is no right to extend time past the 21 day time limit for an appeal to the Full Bench contained in regulation 20, and it may be that the Full Bench cannot extend the time.  However, that question can await its deciding another day.  It has not been established that the Full Bench has jurisdiction to hear and determine this appeal, in any event, even if the appeal were not dismissible because it was out of time.

FINALLY

77      For those reasons, the justice of the matter does not lie with the applicant who has not established that it does.  The equity, good conscience and substantial merits of the case have not been established to lie with the appellant.  Indeed, they lie with the respondents.  Further, the interests of the respondents should, for the reasons which I have expressed, supervene the interests of the appellant (see s26(1)(c) of the Act).

78      Further, the appeal to the Full Bench has not been established, for the reasons which I have expressed, to be competent.

79      I would dismiss the application to extend time within which to institute the appeal and would dismiss the appeal.  In that event, all of the other applications which, of course, depend on the appeal, of course, fall away and should be dismissed.

80      If I am wrong in that then for the reasons which I have expressed above, the grounds are not made out as a matter of merit and the appeal should be dismissed for that reason.

81      I would for all of those reasons dismiss the appeal.

SENIOR COMMISSIONER A R BEECH:

82       I have had the advantage of reading the draft reasons for decision of his Honour the President.  I agree and have nothing to add.

COMMISSIONER J H SMITH:

83      I have had the benefit of reading the reasons to be published by the President.  For the reasons His Honour gives, I agree the Appeal should be dismissed and I have nothing further to add.

THE PRESIDENT:

84      For those reasons, the appeal was dismissed.