WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES KEVIN P GADEKE

APPELLANT/APPLICANT

-and-

ALLISON PTY LTD T/A SEAWEST MARINE SERVICES

RESPONDENT

CORAM FULL BENCH

 THE HONOURABLE M T RITTER, ACTING PRESIDENT

 CHIEF COMMISSIONER A R BEECH

 COMMISSIONER P E SCOTT

DELIVERED WEDNESDAY, 1 FEBRUARY 2006

FILE NO. FBA 18 OF 2005

CITATION NO. 2006 WAIRC 03608

CatchWords Industrial Law (WA) Appeal against decision of a single Commissioner – Application for extension of time in which to file appeal – Application for extension of time in which to file appeal books – Applications for extension of time in which to file extension of time applications – Principles regarding filing appeals out of time – Applications dismissed – Industrial Relations Act 1979 (WA) (as amended), s49, s49(3)

Decision Applications dismissed

Appearances

Appellant  Mr K P Gadeke by way of written submissions

Respondent  Mr A Cameron, as agent, by way of written submissions

Reasons for Decision

THE ACTING PRESIDENT

1         I have read the reasons for decision to be published by the Chief Commissioner.  I agree with the reasons and the disposition of the applications as set out in the reasons.

CHIEF COMMISSIONER A R BEECH:

2         On 26 October 2005 Mr Gadeke lodged a Notice of Appeal against that part of the decision of the Senior Commissioner which required the respondent, his former employer, to pay him compensation “for 5 weeks less 5 days as if he had worked that time under the terms of the Marine Industry Dredging Award 1988 (Commonwealth)”.  The decision of the Senior Commissioner is expressed in his order dated 12 August 2005 which was deposited in the Office of the Registrar on that day.

3         Subsequently on 16 August 2005 and 28 September 2005 correction orders issued regarding the name of the award and the identity of the respondent; the appeal does not go to either of those matters.  For the record, the final correction order is dated 28 September 2005 and that, also, was deposited in the Office of the Registrar that same day.

4         Mr Gadeke’s right to appeal against the whole or part of the Senior Commissioner’s decision is prescribed in section 49 of the Industrial Relations Act 1979 (WA) (as amended).  By section 49(3), the appeal shall be instituted within 21 days of the date of the “decision” against which the appeal is brought.  The “decision” is the order which issued and the 21 days commences to run from the date it was deposited in the Office of the Registrar. 

5         The appeal is against that part of the decision that the compensation to be paid be calculated by reference to the award rather than by reference to the “conditions and remuneration as evidenced by the pay advices from Seawest”.  The correction orders did not go to that issue, only to the correct identification of the award and the legal identity of the respondent.  Accordingly, the decision against which the appeal is lodged is the decision of 16 August 2005 and the time for filing an appeal expired on 2 September 2005.  Mr Gadeke’s Notice of Appeal was therefore filed 54 days out of time.

6         On 26 October 2005, together with his Notice of Appeal, Mr Gadeke also lodged two Notices of Application.  One is for an order allowing an extension of time for the filing of the appeal on the grounds that:

“The award S. Commissioner J.F. Gregor refers does not permit true compensation.  It came to my attention on Friday 21 October that the “award” does not reflect or permit compensation to be paid fully.”

 The second is an application for an order allowing an extension of time for the filing of an extension of time application.  The appeal and extension of time applications were served on 8 November 2005. 

7         On 14 November 2005 Mr Gadeke lodged a further two Notices of Application; they are for an order allowing an extension of time for the filing of the appeal books which states as its grounds:

“I was away offshore and unable to prepare the document”,

and for an order allowing an extension of time to file an extension of time application.

8         Mr Gadeke requested, given his remote location and uncertain work roster, that his applications for extensions of time within which to file the Notice of Appeal and the appeal books be determined without a need for an appearance before the Full Bench.  The Full Bench agreed with that request and an order issued prescribing that Mr Gadeke’s applications be determined upon affidavit evidence and written submissions and setting out a timetable to facilitate this occurring.  The Full Bench has now received Mr Gadeke’s submissions and the respondent’s submissions and affidavit.  There has been no affidavit or written submission from Mr Gadeke in reply to the respondent’s submissions and affidavit.

9         The principles to be applied by the Full Bench when leave is sought to file an appeal out of time are set out in the recent Industrial Appeal Court decision of Cousins v. YMCA of Perth (2001) 82 WAIG 5.  In that matter, Kennedy J (presiding Judge) referred to decision of the High Court in Gallo v. Dawson (1990) 64 ALJR 458.  In referring to that case, his Honour stated that:

“As was emphasised by McHugh J in Gallo v Dawson (supra), the discretion to extend time is given for the sole purpose of enabling the Court (or, in this case, the Industrial Relations Commission) to do justice between the parties, and the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon him. One of the relevant factors relates to what the consequences will be of the grant or refusal of the application for an extension of time. Another relevant factor for granting an extension of time is that the proposed appeal has some prospects of success, whilst conceding, as Brennan CJ and McHugh J said in Jackamarra v Krakouer, that an appellate court can only assess the merits in a fairly rough and ready way, because otherwise the court would have to conduct a full rehearsal for the appeal”.

10      I apply that reasoning to the matter before the Full Bench.  It is relevant to consider what the consequences will be of the grant or refusal of the application for an extension of time.  From the point of view of Mr Gadeke, the refusal of the applications to extend time necessarily means the dismissal of his applications and his appeal.  One of the consequences of that is the removal of his ability to argue that he has not received the full measure of the compensation which was due to him because the compensation to be paid to him was calculated by reference to the award.  It is not apparent from the appeal papers, nor from a reading of the transcript of the case before the Senior Commissioner at first instance, the extent to which there is a difference between the compensation calculated by reference to the award and calculated by reference the pay advices from Seawest.  If the Full Bench assumes simply from the fact that Mr Gadeke wishes to appeal that there must be a difference, there is not the information before the Full Bench which could allow it to conclude whether the difference is significant.

11      Correspondingly, the grant of the applications and the listing of Mr Gadeke’s appeal has a consequence for the respondent.  For the respondent, the matters concerning the claims before it concerning Mr Gadeke were finalised by the decision of the Commission at first instance.  The respondent, too, has its rights in Mr Gadeke’s claim and it was entitled to assume that if no appeal was lodged by Mr Gadeke within 21 days from the date of the decision of the Commission at first instance, the issues concerning Mr Gadeke’s claim were, from Mr Gadeke’s point of view, at an end.  The respondent itself lodged an appeal on 6 September 2005 but chose not to proceed with it and it was discontinued for that reason on 18 October 2005.  It was not until after this date that the appellant lodged the Notice of Appeal in this matter on 26 October 2005.

12      It is also relevant to consider whether the proposed appeal has some prospects of success.  This can only be assessed in a fairly rough and ready way because otherwise the Full Bench would have to conduct a full rehearsal for the appeal.  The essential element of the appeal as filed goes to the basis upon which compensation was ordered.  The Commission at first instance ordered that the compensation be based upon the award.  It appears that conclusion was one that was open to the Commission at first instance on the evidence.  When Mr Gadeke completed his Notice of Application at first instance he stated at paragraphs 18 and 19 that his employment was bound by the “Dredging Award Australia”.  It is not apparent from a reading of the transcript that the precise, or actual basis of Mr Gadeke’s employment was a source of controversy which required determination by the Commission at first instance. 

13      The decision extracts referred to by Mr Gadeke and found at pages 24 and 25 of the appeal book refer to a cycle of 5 weeks on and 5 weeks off, paid leave and stand-down pay.  They do not refer to the basis of the calculation of remuneration.  In that context, the “Seawest Time line of events” at page 26, and the letter from the respondent at page 27, the email at page 28 and the pay advice information at pages 29 and 30 do not assist in identifying what discrepancy, if any, there is between these calculations and the amounts calculated in accordance with the order of the Senior Commissioner.

14      I note also the respondent, in its submissions at paragraphs 23 and 24, observes that Mr Gadeke has not challenged the conclusion of the Senior Commissioner at paragraph 31 of the Reasons for Decision that Mr Gadeke had told the Commission he was working under the award.  The respondent also submits that any inference that Mr Gadeke is seeking to infer that he has not been paid for his off-swing is countered by the payment of the higher rate in Part C of the award.  Mr Gadeke has not sought to challenge these submissions in the right of reply given to him by the Full Bench in its order.  I therefore take these submissions into account.

15      I conclude, on balance, that Mr Gadeke has not shown that he has good prospects of success on his appeal. 

16      I also take into account the length of the delay and the reasons for it.  The length of the delay, 54 days out of time, is not insignificant.  Mr Gadeke has stated in his submissions that he has been running his own case and representing himself; he has been engaged in a marine environment and employed on a typical 12 hour day basis over a period of up to 5 weeks on duty for the vessel-based work and up to 3 weeks in the oil/gas fields in the Northwest.  He submits that this has made it difficult to schedule and maintain Commission timelines. 

17      Mr Gadeke enclosed his recent work schedule.  He states that through this period he was required to be away offshore at short notice for various periods ranging from a week to almost three.  I have had regard to the list of dates attached to Mr Gadeke’s submission on the letterhead of Transfield Worley Services.  These show that from the date the Senior Commissioner’s order was made, that being 12 August 2005, Mr Gadeke was “mobbed” on an offshore platform between 22 - 31 August, 12 – 19 September, 30 September – 17 October and 28 October – 4 November.  Correspondingly, that information also reveals that outside those dates, Mr Gadeke was, apparently not “mobbed”.  There is no information before the Full Bench to show why Mr Gadeke could not, during those demobbed times, have taken some steps to advise the respondent and the Registry of his appeal, even if all of the necessary paperwork was not able to be completed during that time.  It is not irrelevant to note that during this period Mr Gadeke was aware of the respondent’s own appeal. 

18      The discretion of the Full Bench to extend time is given for the sole purpose for enabling the Commission to do justice between the parties.  It is up to Mr Gadeke to show that this discretion should be exercised in his favour by proving that strict compliance with the rules will work an injustice upon him.  It cannot be said with any confidence that the information before the Full Bench shows the injustice which he is required to demonstrate.  Much is conjecture on the part of the Full Bench because of the limited information available to it.  It would be wrong, in my view, for the Full Bench to conclude that strict compliance with the rules will work an injustice upon Mr Gadeke, upon the basis of its own conjecture.  Accordingly, I would dismiss the applications.

COMMISSIONER P E SCOTT:

19      I have had the benefit of reading the Reasons for Decision of the Chief Commissioner.  I agree and have nothing to add.