Appeal against a decision of the Commission in matter number B 167/2019 given on 9 March 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2022 WAIRC 00799

DELIVERED : THURSday, 24 November 2022

FILE NO. : FBA 2 OF 2022

Appellant

AND

The Roman Catholic Bishop of Bunbury

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner T Walkington

Citation : 2021 WAIRC 00055

File No : B 167 OF 2019

Catchwords : Industrial Law (WA) – Appeal against the decision of the Commission – Appealable error – Assessment of merits of grounds – Discretionary factors to extend time to appeal – Discretion to do justice between parties – Extension of time to appeal – No prospects of success of appeal – Summons to witnesses – Time limit for appealing a decision – 12 months out of time

Legislation : Industrial Relations Act 1979 (WA) s 7, s 27(1)(c), s 32(2), s 49, s 49(2a), s 49(3), s 49(4)

Industrial Relations Commission Regulations 2005 (WA) reg 32A 

Result : Appeal dismissed

Representation:

Counsel:

Appellant : In person

Respondent : Mr I Curlewis of counsel

Solicitors:

Respondent : Lavan

Case(s) referred to in reasons:

Arpad Security Agency v FMWU (1989) 69 WAIG 1287

City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120; (2009) 169 LGERA 15

Cousins v YMCA of Perth [2001] WASCA 374; (2001) 82 WAIG 5

Doyle v Roman Catholic Bishop of Bunbury [2021] WAIRC 00054; (2021) 101 WAIG 151

Doyle v Roman Catholic Bishop of Bunbury [2021] WAIRC 00566; (2021) 101 WAIG 1373

Doyle v Roman Catholic Bishop of Bunbury [2022] WAIRC 00317; (2022) 102 WAIG 1125

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 519

United Voice WA v The Director‑General, Department of Education [2014] WAIRC 01361; (2015) 95 WAIG 13

Reasons for Decision

FULL BENCH:

1         The time limit for appealing a decision of the Commission is 21 days: s 49(3) of the Industrial Relations Act 1979 (WA). Mr Doyle lodged an appeal against a 9 March 2021 procedural decision setting aside his summons to a witness (Doyle v Roman Catholic Bishop of Bunbury [2021] WAIRC 00054; (2021) 101 WAIG 151) on 29 March 2022. Not only was his appeal lodged almost a year out of time, 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.

2         Incidentally, Mr Doyle also filed an out of time unfair dismissal application on the same day he filed this appeal.

3         The decision in the earlier appeal has since been delivered: Doyle v Roman Catholic Bishop of Bunbury [2022] WAIRC 00317; (2022) 102 WAIG 1125 and the appeal was dismissed.

4         The reasons in Doyle v Roman Catholic Bishop of Bunbury [2021] WAIRC 00566; (2021) 101 WAIG 1373 set out the background to Mr Doyle’s original claim. It was a claim for denied contractual benefits.

5         Mr Doyle seeks an extension of time to bring this appeal. The Full Bench has power to extend time to institute an appeal against a decision of the Commission: United Voice WA v The Director‑General, Department of Education [2014] WAIRC 01361; (2015) 95 WAIG 13. The sole purpose for which the Full Bench has this discretion is to do justice between the parties: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 at 459. Mr Doyle must show that strict compliance with the rules would work an injustice on him: Gallo v Dawson at 459.

6         There are generally at least four major but not exhaustive factors which are considered in the exercise of discretion:

(a) the length of the delay;

(b) the reasons for the delay;

(c) the prospects of success of the appeal; and

(d) the extent of any prejudice to the respondent:

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196.

7         Other factors may also be relevant: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120; (2009) 169 LGERA 15 at [33].

8         Mr Doyle needs to make out his case for the Full Bench to exercise its discretion to extend time in his favour: Arpad Security Agency v FMWU (1989) 69 WAIG 1287.

9         Mr Doyle’s appeal has no prospects of success. This is fatal to his case for an extension of time. Even if his appeal has some merit, all the other relevant factors side glaringly against Mr Doyle. The case for an extension of time fails.

Does the appeal have any prospects of success?

10      The time for appealing cannot be extended unless the proposed appeal has some prospects of success: Cousins v YMCA of Perth [2001] WASCA 374; (2001) 82 WAIG 5 at [35]. The Full Bench need not go into elaborate detail on the merits, but should assess the merits in a ‘rough and ready’ way: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 519.

11      The decision which Mr Doyle appeals against was the decision to set aside his summons to the Bishop of Bunbury, Bishop Holohan. The learned Commissioner’s essential reason for setting aside the summons was that Mr Doyle had not shown that the Bishop could give evidence relevant to Mr Doyle’s denied contractual benefits claim.

12      The decision is a ‘finding’ for the purpose of s 49(2a) and s 7 of the Act, so an appeal does not lie unless the Full Bench forms the opinion that the matter is of such importance that, in the public interest, an appeal should lie.

13      Mr Doyle’s Notice of Appeal contains 10 numbered paragraphs. Deciphering what errors Mr Doyle contends the learned Commissioner at first instance made is difficult. Doing our best, we take it that Mr Doyle is contending:

(a) that after the order was made, he has come into evidence connecting the Bishop to an industrial agreement that applied to his employment;

(b) the finding that the Bishop could not give evidence relevant to the substantive claim was wrong because the Bishop was Mr Doyle’s employer;

(c) the learned Commissioner did not give proper regard to his arguments against setting aside the summons; and,

(d) deciding the application to set aside the summons on the papers denied him a proper opportunity to be heard.

14      One of Mr Doyle’s grounds in the earlier appeal was:

The Commissioner erred in allowing the subpoena of the Bishop to be set aside on papers based on “the Bishop had no evidence.”

15      In deciding the earlier appeal, the Full Bench considered this ground of appeal (and dismissed it) on the understanding that Mr Doyle contended that the Bishop was a named party to an industrial instrument as the employer and that he therefore had knowledge of matters covered by it: Doyle v Roman Catholic Bishop of Bunbury [2022] WAIRC 00317; (2022) 102 WAIG 1125 at [31].

16      At [33], the Full Bench observed:

…there has been no ground made out by the appellant to challenge the order. Not only did the appellant not seriously challenge the basis for the learned Commissioner’s decision, that the respondent had no direct knowledge of the matters the subject of the proceedings at first instance, but as the learned Commissioner recorded, the appellant ultimately accepted the matters raised by the respondent in that regard.

17      These observations could stand as the ‘rough and ready’ assessment of the merits of grounds (a) and (b) of this appeal. As in the earlier appeal, Mr Doyle has not attempted to show that the Bishop had direct knowledge of matters relevant to the issues in his denied contractual benefits claim. Mr Doyle has not advanced any different, new or additional arguments in this appeal about the correctness or otherwise of the decision to set aside the summons.

18      When the learned Commissioner was deciding the matter, Mr Doyle accepted that the Bishop did not have knowledge of the matters relevant to his denied contractual benefits claim, and therefore did not have any evidence to give. His appeal must be determined on the evidence and matters raised in the proceedings before the Commission: s 49(4) of the Act.

19      At first instance, Mr Doyle consented to the application to set aside the summons being determined on the papers. He cannot now complain that doing so constituted an appealable error. He has not demonstrated any failure by the learned Commissioner to give proper regard to his arguments against setting aside the summons.

20      The appeal has no prospects of success. This is fatal to Mr Doyle’s case for an extension of time.

21      It is strictly unnecessary to consider the other potentially relevant factors for an extension of time. We will nevertheless address them briefly.

Length of delay

22      The discretion to extend time exists because fixed time limits can cause hardship, and operate against the interests of justice. However, the main object of fixing time limits is to achieve finality of judicial determination: Arpad Security Agency. It must be borne in mind that the respondent has a vested right in the judgment, order or decision once the time limit for appealing has expired, and unless an extension of time is granted.

23      Mr Doyle’s delay of 12 months is extreme. He would need to show that the other relevant factors are strongly in his favour to overcome this factor’s weight against him.

Reasons for delay

24      Mr Doyle offered three reasons for the delay in lodging the appeal. The first reason was that the decision he is appealing against was made less than two days before the commencement of the substantive hearing in his claim. He received the decision at 2.24 pm on 9 March 2021. The substantive hearing commenced on 11 March 2021. As a self‑represented litigant, he was under a lot of pressure and was, understandably, preoccupied with his preparations for the substantive hearing. He said he simply had no time to appeal.

25      Mr Doyle’s predicament is understandable. There can be no criticism of his failure to lodge an appeal before 11 March 2021. However, the time limit for lodging an appeal expired on 30 March 2021, more than two weeks after the substantive hearing had concluded. The question is not why he delayed between 9 March 2021 and 11 March 2021. Rather it is why he did not file an appeal before 30 March 2021 and delayed between 30 March 2021 and 29 March 2022.

26      Mr Doyle said that he was confused by:

(a) Section 32(2) of the Act, which enables a person served with a summons to require the person issuing the summons to show cause as to why the person should appear; and

(b) Regulation 32A of the Industrial Relations Commission Regulations 2005 (WA), which allows the Commission to determine proceedings on the papers.

This confusion might somehow explain why Mr Doyle was aggrieved by the 9 March 2021 decision. It does not provide an explanation for his delay in appealing the decision.

27      Mr Doyle’s final reason for the delay was that he had sought pro bono legal advice. He produced an email to a lawyer, which attached the decision of 9 March 2021 and asked ‘Anything I should do?’ That email was sent at 2.57 pm on 9 March 2021.

28      The Full Bench does not know whether the lawyer responded to the email or not, or what response the lawyer gave. Mr Doyle did not provide the Full Bench with any evidence about this, despite being invited to do so.

29      We do know that after Mr Doyle emailed the lawyer, at 5.44 pm on 9 March 2021, Mr Doyle emailed Commissioner Walkington’s Associate, referring to the order made on 9 March 2021 and stating:

…

The Applicant does not object to the setting aside of the summons to be decided upon the papers (the Act s32A). The reasons for decision now being explicitly stated by the Order.

The letter of the Bishop of Bunbury dated 3rd March 2021 will still be admitted as evidence at Hearing on March 11th 2021.

Thank you for the clarification by ORDER dated 9th March 2021.

30      We also know that Mr Doyle remained in correspondence with the lawyer, because he sent further emails to the lawyer on 9 March 2021 and 11 March 2021.

31      Mr Doyle has not shown that he was given wrong or misleading advice about either his ability to appeal the decision, the time for appealing or the merits of an appeal. The evidence about having a pro bono lawyer really only shows that he had some assistance in the lead‑up to the 9 March 2021 decision, and in the lead‑up to the substantive hearing.

32      Mr Doyle has gone some way to show that there were reasons for not filing an appeal before the substantive hearing. However, he is a long way short of explaining the full extent of the delay. He has not shown any reason for the delay of 12 months from the conclusion of the substantive hearing to the date he eventually filed the appeal.

Prejudice to respondent

33      Mr Doyle’s delay has caused real detriment to the respondent. The prejudice is not merely the presumptive prejudice inherent in delay.

34      The substantive claim has been heard and determined. The appeal from the decision in the substantive claim has been heard and determined. An appeal to the Industrial Appeal Court from the Full Bench decision in the earlier appeal remains on foot. The respondent has incurred and is continuing to incur substantial costs in responding to Mr Doyle’s multitude of applications and appeals, all of which could have been avoided had he complied with the rules and lodged this appeal within the time required by s 49 of the Act.

35      The respondent’s costs are not recoverable: s 27(1)(c) of the Act. The prejudice to the respondent is incurable.

Other factors

36      Mr Doyle has not prosecuted this appeal with proper expediency. He sought, and was granted, several extensions of time to file the appeal books. Under the Regulations, the appeal books were due to be filed on 12 April 2022. He was granted several extensions of this time, the latest being an order of 10 June 2022 extending the time to 17 June 2022. Mr Doyle has still not filed appeal books.

37      Mr Doyle’s dilatory conduct is further reason to refuse to extend the time to appeal. His conduct in this appeal tends to show that he will continue to perpetuate delay and compound the significant prejudice to the respondent of the late appeal.

Disposition and orders

38      We would dismiss the appeal.