APPEAL AGAINST A DECISION OF THE WORK HEALTH AND SAFETY TRIBUNAL IN MATTER NUMBER WHST 8/2023 GIVEN ON 27 AUGUST 2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2025 WAIRC 00155

DELIVERED : Wednesday, 12 March 2025

FILE NO. : FBA 19 OF 2024

Appellant

AND

Electricity Networks Corporation t/a Western Power

Respondent

ON APPEAL FROM:

Jurisdiction : WORK HEALTH AND SAFETY TRIBUNAL

Coram : COMMISSIONER T EMMANUEL

Citation : [2024] WAIRC 00782

File No : WHST 8 of 2023

CatchWords : Industrial Law WA – Whether to allow an appeal out of time  – Where the Appellant's Notice of Appeal does not set out concise grounds of appeal alleging an error of law or error of fact – Whether appeal has any prospects of success – Justice does not require that the time to appeal be extended – Application to appeal out of time dismissed - Appeal dismissed 

Legislation : Fair Work Act 2009 (Cth)

Industrial Relations Act 1979 (WA)

Industrial Relations Commission Regulations 2005 (WA)

Work Health and Safety Act 2020 (WA)

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr J Simmonds (in person)

Respondent : Ms H Millar (of counsel)

Solicitors:

Appellant : Not applicable

Respondent : Corrs Chambers Westgarth

Case(s) referred to in reasons:

Arpad Security Agency Pty Ltd v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch (1989) 69 WAIG 1287

Adrian Doyle v Roman Catholic Bishop of Bunbury [2022] WAIRC 00799; (2022) 102 WAIG 1533

Browne v Dunn (1893) 6 R 67

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

Esther Investments Pty Ltd v Markalinga Pty Ltd [1989] WASC 174; (1989) 2 WAR 196

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Justin Simmonds v Electricity Networks Corporation t/a Western Power [2024] WAIRC 00782; (2024) 104 WAIG 1968

Reasons for Decision

FULL BENCH

1         The Appellant, Justin Simmonds, was employed by the Respondent, Electricity Networks Corporation trading as Western Power, as a Safety Operations Business Partner. On 27 April 2023, Western Power dismissed Mr Simmonds from his employment following investigations into both allegations against Mr Simmonds and Mr Simmonds’ work related grievances. 

2         Mr Simmonds applied to the Work, Health and Safety Tribunal under s 112 of the Work Health and Safety Act 2020 (WA) (WHS Act) alleging that he was the subject of discriminatory conduct for reasons prohibited by s 106 of the WHS Act. In essence, his claim was that when Western Power:

(a) placed him on a performance plan; and

(b) dismissed him from his employment

it took discriminatory action against him for the reason, or reasons that included, that he had raised an issue or concern about work health and safety.

3         Mr Simmonds’ claims were heard by the Tribunal over a four-day hearing. 

4         On 27 August 2024, the Tribunal dismissed Mr Simmonds’ application and published reasons for that decision: Justin Simmonds v Electricity Networks Corporation t/a Western Power [2024] WAIRC 00782; (2024) 104 WAIG 1968 (Reasons).

5         Ultimately, the Tribunal found that Western Power had discharged the onus on it of proving that a prohibited reason was not a substantial reason for the conduct Mr Simmonds was aggrieved by. Commissioner Emmanuel set out the evidence on this issue in her Reasons from [75] to [103] concluding at [104]:

Accordingly, I find that although Western Power took discriminatory action (as defined by s 105 of the WHS Act) against Mr Simmonds when it dismissed him, Western Power did so for a reason other than a prohibited reason. Western Power has proved on the balance of probabilities that the prohibited reason in s 106(h) of the WHS Act was not the reason, or a substantial reason, for the warning, PIP or dismissal.

6         Under cl 29 of the WHS Act, the appeal provisions of s 49 of the Industrial Relations Act 1979 (WA) (IR Act) apply to the Tribunal. And so, by s 49(2) of the IR Act, a party may appeal from a decision of the Tribunal to the Full Bench of the Western Australian Industrial Relations Commission. Section 49(3) of the IR Act prescribes that an appeal under the section must be instituted within 21 days of the date of the decision against which the appeal is brought. 

7         Mr Simmonds did not appeal within the specified time in s 49(3). He lodged his Notice of Appeal on 20 September 2024. His appeal was three days out of time.

8         These proceedings were listed for hearing on 7 February 2025. At the conclusion of the hearing, the Full Bench declined to grant Mr Simmonds leave to file his appeal out of time and dismissed the appeal indicating that we would publish our reasons for decision in due course.

9         These are our reasons for those orders.

10      The Full Bench has power to extend time to institute an appeal under s 49 of the IR Act: s 27(1)(n). The purpose of having this discretion is to do justice between the parties: Kathleen Gallo v The Honourable Justice Dawson [1990] HCA 30; 64 ALJR 458 (Gallo v Dawson). Mr Simmonds must show that strict compliance with the time prescribed by the IR Act would work an injustice on him Gallo v Dawson at 459.

11      In Adrian Doyle v Roman Catholic Bishop of Bunbury [2022] WAIRC 00799; (2022) 102 WAIG 1533 [6] (Doyle) the Full Bench described four major but not exhaustive factors which are considered in the exercise of the discretion, citing Esther Investments Pty Ltd v Markalinga Pty Ltd [1989] WASC 174; (1989) 2 WAR 196:

(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.

12      As stated in Doyle [8], citing Arpad Security Agency Pty Ltd v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch (1989) 69 WAIG 1287, Mr Simmonds needs to make out his case for the Full Bench to exercise its discretion to extend time in his favour.

13      After Mr Simmonds instituted his appeal, the Full Bench convened a directions hearing. The directions hearing was conducted on 25 November 2024. At that time, the Full Bench informed Mr Simmonds that an appeal under s 49 is not a chance to run his case at first instance all over again. We explained that an appeal is by way of rehearing, meaning that the appellant needs to show that the first instance decision maker made an error of law or an error of fact or both. We explained that r 102(2) of the Industrial Relations Commission Regulations 2005 (WA) dictates that the Notice of Appeal must clearly and concisely set out the grounds of appeal and what alternative decision the appellant seeks. Regulation 102(3) requires the Notice of Appeal to specify the particulars relied on to demonstrate that the decision is against the evidence and the specific reason why a decision is alleged to be wrong in law.

14      We noted that Mr Simmonds’ Notice of Appeal did not do what the Regulations required. We alerted him to the fact that we could not find within the extensive Notice of Appeal, which ran to 33 pages, anything that resembled grounds of appeal in the sense of alleging an error of law or error of fact in the decision. Rather, the many pages looked like a report of everything that had happened in the proceedings leading up to the decision and an attempt to have another go at persuading the Full Bench that the claim at first instance ought to be upheld. While the Notice of Appeal made it very clear that Mr Simmonds disagreed with the outcome and would have preferred a different result, it did not appear to advance any arguable contention that the Tribunal’s factual findings, upon which the ultimate decision turned, were not open on the evidence.

15      We also explained to Mr Simmonds that one of the factors we would need to consider in deciding whether to grant an extension of time to appeal is whether the appeal was arguable. We told him that it would not be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. We noted that in its current form, Mr Simmonds’ Notice of Appeal would fail to show there is an arguable appeal because it did not identify grounds for appealing. We told Mr Simmonds that if the matter was to proceed to hearing on the existing Notice of Appeal it was extremely likely that he would not be granted an extension of time simply because his Notice of Appeal did not disclose any grounds of appeal.

16      At the conclusion of the directions hearing, we made orders for Mr Simmonds to file any application to amend his Notice of Appeal by 16 December 2024.

17       Despite these warnings, Mr Simmonds did not apply to amend his grounds of appeal. At the time of the hearing, his Notice of Appeal remained in the form of a narrative about the proceedings, complaints about Western Power’s conduct and some submissions which went to secondary findings of fact asserted to be erroneous, without an attempt to explain how those matters infected the primary findings of fact on which the Tribunal’s decision turned.

18       At the hearing of the appeal, Mr Simmonds nevertheless pressed his application for an extension of time to appeal. He referred to the fact that he had set out reasons for the late filing of his Notice of Appeal in the notice itself. He submitted that a three-day delay is insignificant in the scheme of things, and he should not be shut out from the appeal process for being three days late, especially in circumstances where no steps were taken by the Full Bench to progress his application for an extension of time to appeal until two months after it was filed.

19      As to whether the Notice of Appeal identified grounds of appeal, Mr Simmonds said that under the ‘chess club test’ his Notice of Appeal would be considered to contain enough information to show that he had ‘plenty of grounds’ of appeal. The ‘chess club test’ was, Mr Simmonds explained, a phrase he had made up to refer to people ‘with intellectual capabilities’ as contrasted with ‘morons’ at a pub (FBA ts 3).

20      We emphasised to Mr Simmonds that he would need to demonstrate to us that his Notice of Appeal contained proper grounds of appeal before we could consider granting leave to file the appeal out of time. He variously indicated that he should have just ‘won the whole thing’ (FBA ts 3), that his appeal grounds were throughout the Notice of Appeal, that the ultimate decision was a complete error of judgment and that he disagreed with the whole of the decision at first instance. He described his ‘biggest ground’ (FBA ts 3) as being that WorkSafe WA cannot afford for the appeal to be denied. He submitted that everything he had written in his Notice of Appeal shows error and that his appeal goes to the whole of the WHS Act and its objects. His submissions amounted to no more than assertions that the Tribunal should have made a different decision without identifying why findings made were not open.

21      Eventually, after a brief adjournment, Mr Simmonds told us that he considered his Notice of Appeal identified at least the following grounds of appeal:

(1) That the Tribunal erred by excluding from evidence a recording he sought to rely on: Notice of Appeal paragraph 56.

(2) That the Tribunal applied the wrong case law or failed to apply case law that he had referred to the Tribunal: Notice of Appeal paragraph 59.

(3) That the Tribunal denied him a fair process by failing to make reasonable adjustments for him often enough: Notice of Appeal paragraph 45.

(4) Mr Simmonds referred to paragraphs 12 and 13.1 of his Notice of Appeal. As we understand his submissions, he relies on these paragraphs as being to the effect that the Tribunal had not properly understood or applied the objects of the WHS Act.

(5) Mr Simmonds referred to paragraphs 16 and 17 of his Notice of Appeal which raise concerns or issues about how his public interest disclosures as an employee were handled.

22      We proceeded to consider Mr Simmonds’ application for an extension of time for appealing on the basis that these five grounds are his grounds of appeal.

Does the Proposed Appeal have any Prospects of Success?

23      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. 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 516.

24      None of Mr Simmonds’ grounds have any prospects of success.

25      The first ground derived from paragraphs 56 to 58 of the Notice of Appeal relates to the refusal to admit recordings into evidence. The Commissioner explained her reasons for refusing to admit the evidence on relevance grounds at [52] – [57] and [59] of the Reasons:

52 During the hearing Mr Simmonds sought to tender five audio recordings. Eventually he only pressed for two, being recordings of:

a) The performance discussion meeting on 16 March 2023 (see [23] above) (Recording 1), which Mr Simmonds said shows that Ms Nesci lacks experience and knowledge, and defers to Mr Prideaux;

b) Mr Simmonds’ discussion with Mr Robert Mitchell (Human Resources Business Partner) on around 17 March 2023 (Recording 2), which he said shows Mr Mitchell considered that:

i) Ms Silvester and Ms Nesci did not handle the disciplinary process well;

ii) the PIP had flaws; and

iii) Western Power’s process of handling grievances would be different to what actually happened in Mr Simmonds’ case.

53 Essentially Mr Simmonds argued that Western Power had a toxic culture and the reason he made Recordings 1 and 2 was to protect himself against injustice. He said he had paid ‘an audio person’ to ‘clean up’ the recordings.

54 Having undergone an unspecified ‘cleaning up’ process casts doubt on the integrity of Recordings 1 and 2. But even if that were not the case, I decided that Recordings 1 and 2 would not be admitted in to evidence.

55 The Tribunal is not bound by any rules of evidence but may inform itself on any matter in such a way as it thinks just: s 26(1)(b) of the Industrial Relations Act 1979 (WA) (IR Act) by virtue of cl 29(1) of Schedule 1 of the WHS Act.

56 Fundamentally, I did not consider that Recordings 1 and 2 were relevant or necessary. Ms Nesci, Mr Armstrong and Mr Mitchell were not the relevant decision-makers in relation to the alleged discriminatory conduct. Recordings 1 and 2 did not go to the question of whether the decision-makers had impermissible reasons in their mind when they engaged in the discriminatory conduct. In any event, Mr Simmonds was able to fairly prosecute his claim without reliance on the recordings. He was able to cross-examine the relevant decision-makers and Ms Nesci. Mr Mitchell’s view about the matters set out at [52b] above is not relevant.

57  Further, the recordings appeared to have been made contrary to the Surveillance Devices Act 1998 (WA). The regime under that Act expressly prohibits covert recordings of private conversations except in limited circumstances. Mr Simmonds made Recordings 1 and 2 without the knowledge or consent of those he recorded. I was not persuaded that the recordings were reasonably necessary for the protection of Mr Simmonds’ lawful interests.

…

59 In the circumstances of this matter, I concluded that the Tribunal could fairly hear and determine application WHST 8 of 2023 without listening to the covert recordings. I considered Recordings 1 and 2 were not relevant and that, at a minimum, it would not be just or necessary to admit them into evidence. In my view, to allow reliance on Recordings 1 and 2 would also be contrary to the Tribunal’s obligation to act in accordance with s 26(1)(a) of the IR Act. For these reasons I ordered that Recordings 1 and 2 would not be admitted into evidence.

26      Mr Simmonds disagrees with the decision but has not set out why the decision involves any error. The Commissioner was plainly correct. The recordings did not involve the relevant decision makers. Mr Simmonds did not contend that those involved in the recordings were relevant decision makers.

27      The second ground in paragraph 59 of Mr Simmonds’ Notice of Appeal is that the Tribunal had regard to case law, which the respondent referred to, and that case law concerned adverse action cases under the Fair Work Act 2009 (Cth) (FWA). Again, the Notice of Appeal does not say why in doing so any error of law occurred. 

28      The discriminatory conduct provisions of the WHS Act have not previously been tested or applied authoritatively. That is, there is no case law which was binding on the Tribunal. There was nothing improper in the Tribunal having regard to case law concerning the adverse action provisions of the FWA. The FWA’s adverse action provisions are closely aligned with the WHS Act’s discriminatory conduct provisions, with similar structure and language. The Commissioner referred to that case law as being helpful and persuasive. The Commissioner did not proceed on the basis that she was bound by those decisions.

29      In any event, the outcome of Mr Simmonds’ application turned on findings of fact about the reasons for Western Power’s conduct, not the application of any legal principle.

30      The second ground has no merit.

31      The third ground alleges that Mr Simmonds was denied procedural fairness because the Tribunal failed to make appropriate accommodations or adjustments for him often enough. Paragraph 45 of his Notice of Appeal says:

45. At start of the hearing the Applicant advised the Tribunal that he has depression and ADHD, making it difficult to explain things and keep track of his thoughts, and requested he be allowed to present his case with limited interruptions.

45.1. The Applicant felt that he could not present his case fairly during the hearing  because he kept being told it was irrelevant.

45.2. The Applicant believed that it was not only relevant considering the case law  suggesting so, but it was essential in proving his case.

32      We understand Mr Simmonds is alleging that he was denied procedural fairness by being cut off at times and prevented from making his submissions.

33      In the proceedings at first instance, Mr Simmonds provided the Tribunal with written submissions which exceeded 60 pages in length. During the course of the hearing, he made oral closing submissions after an adjournment which was for the purpose of allowing Mr Simmonds to gather his thoughts before making his closing submissions (ts 265).

34      Mr Simmonds’ oral closing submissions are recorded in 14 pages of transcript (ts 266-280), compared with 8 pages of Western Power’s oral closing submissions (ts 257-265). He gave 40 minutes of oral submissions with few minor interruptions from the Commissioner. On the few occasions the Commissioner spoke, it was to clarify things like the paragraph of a case which Mr Simmonds was referring to (ts 268), a section of the WHS Act or a page number he was referencing (ts 273).

35      After about 40 minutes of oral submissions, Western Power’s counsel raised a point of relevance (ts 274). At this point, Mr Simmonds estimated he had a further ten minutes of submissions to make (ts 275). The Commissioner informed Mr Simmonds:

So the point made [by counsel] is correct. It isn't really relevant. And I have given you a lot of leeway. I’m mindful that you're unrepresented. I'm mindful of what you've said about how stressful you've found it. There's been a range of reasons why you've been given considerable leeway.

I understand the point you're making. You probably don't need to labour that anymore.

36      Mr Simmonds apparently took this on board and moved on to a different topic of the disciplinary process (ts 275).

37      Other objections were taken by Western Power’s counsel, when Mr Simmonds referred to a matter that was not in the evidence and matters not put to witnesses (ts 277). Mr Simmonds then attempted to give evidence from the bar table of a further matter that was not in evidence when the Commissioner quite properly stopped him (ts 278). The Commissioner also prevented Mr Simmonds from dealing with matters that did not form part of his amended claim before the Tribunal (ts 279).

38      Mr Simmonds continued his oral submissions after these points were dealt with, concluding his submissions with the words ‘And that’s all I’ve got to say’ (ts 280). The Commissioner asked Mr Simmonds ‘Is that the end of your submission?’ (ts 280), giving him an opportunity to add anything that he might have felt he had not covered. He did not take that opportunity.

39      A critical issue in Mr Simmonds’ application at first instance was what was the relevant decision maker’s reasons for taking discriminatory action. Mr Simmonds was provided the opportunity to cross-examine the relevant decision maker. He declined to do so. His choice was made after the Tribunal had explained to him the consequences of the rule in Browne v Dunn (1893) 6 R 67.

40      It should be apparent from this overview of the conduct of the hearing that there is just no merit to Mr Simmonds’ complaints of being denied procedural fairness. There is no requirement of procedural fairness that a litigant be entitled to speak without interruption from the presiding judicial officer. It is entirely proper for the Tribunal to take steps to ensure that the proceedings are conducted fairly and efficiently. The Tribunal afforded great leniency to Mr Simmonds. The hearing was procedurally fair.

41      Mr Simmonds’ fourth ground relying on paragraphs 12 and 13 of the Notice of Appeal essentially amounts to a general grievance that the outcome of the case at first instance did not accord with the objects of the WHS Act. Paragraphs 12 and 13 are as follows:

12. A work health and safety incident is a work health and safety issue.

12.1 An incident investigation is ultimately to prevent recurrence.

12.1.1 The Respondent’s Incident Management Procedure states:

“This procedure defines the processes for incident reporting, investigation, action development and communication to prevent recurrence…”

12.2 An incident investigation report is an investigation process necessary to successfully complete any incident investigation to adequate quality.

12.2.1 The Respondent’s Incident Management Procedure requires an Area Manager to “support investigation processes necessary to complete any incident investigation to successful completion and adequate quality.”

12.3 Sharing a draft incident report with another duty holder is required by Law and the Respondent’s Safety, Health And Environment Management System (SHEMS).

12.4 The Respondent’s Safety, Health and Environment Management System Framework states:

“So far as is reasonably practicable, consultation takes place with Workers who are, or are likely to be directly affected by a matter relating to work health or safety.”

12.5 The sharing of the draft Incident Investigation Report by the Applicant to the Area Manager, on his request, allowed the Area Manager to provide feedback, seek clarification and implement controls, stating in emails to the Applicant:

“Hi Mate, Added some notes (to the draft incident investigation report), if you could help me  clarify?”

AND

“Just a heads up, I’ve put in some preliminary actions from reading the report. I was unaware that the teams weren’t consistent or knowledgeable on the use of the temp discon tags so we’ve done an audit of packages across East, implemented a new scanning procedure and doing a knowledge piece with the teams. Hopefully limits exposure to similar incidents in the future.”

12.6 The sharing of the draft Incident Investigation Report by the Applicant to the Area Manager contributed to resolving the work health and safety issue by reducing the risk of harm to workers and members of the public by introducing or reinforcing control measures.

12.7 The incident could have resulted in multiple fatalities.

12.8 The sharing of the draft Incident Investigation Report by the Applicant to the Area Manager could have prevented multiple fatalities.

13. On the facts, the Applicant was involved in resolving a work health and safety issue satisfying the requirements of section 106(i) of the WHS Act.

13.1 A finding otherwise, set in precedence, would be detrimental to the Object of the WHS Act.

(original emphasis)

42      At [62] – [64] of the Reasons, the Tribunal considered the question of whether Mr Simmonds had raised an issue or concern about work, health and safety. The Tribunal concluded that Mr Simmonds had raised an issue or concern about work, health and safety when he sent an email to Western Powers’ Chief Executive Officer on 23 February 2023. The Tribunal made no finding as to whether he had raised an issue or concern about work health and safety when sending the draft Incident Investigation Report (referred to in the Reasons as the Wundowie Report) to the area manager because it was not part of Mr Simmonds amended application and therefore not part of his case: [64].

43      For paragraphs 12 and 13 to amount to grounds of appeal Mr Simmonds needs to show that the question of whether he had raised an issue or concern about work health and safety by sharing the draft Incident Investigation Report was properly before the Tribunal. That is, he must show that the Tribunal was required to determine whether to make the finding he now seeks, as part of his application at first instance. He has not done so. Accordingly, these paragraphs do not amount to grounds of appeal and cannot support any finding of error.

44      The fifth of Mr Simmonds’ grounds is based on paragraphs 16-17 of the Notice of Appeal which say:

16. The persons with duties and/or obligations the Applicant proposed to take action to seek compliance by included;

16.1. The Respondent’s Head of SEQT

16.2 Three members of the Respondent’s Executive Leadership Team

16.3 The Respondent’s Head of Operational Maintenance

17. The Applicant included the Issues Email in the Public Interest Disclosure (PID) he made to the Respondent’s Senior Forensic Advisory Specialist to address the issues and concerns within the email, and allegations that he was being subject to discriminatory conduct for prohibited reasons contrary to Section 112(4) of the WHS Act.

17.1 The Applicant did not receive any update on his PID during his employment with the Respondent.

17.2 The Respondent’s same Senior Forensic Advisory Specialist was appointed to investigate the Applicant for breach of confidentiality two weeks after he raised his PID, which resulted in his termination.

(original emphasis)

45      There is nothing in the Reasons that relates to the matters set out at paragraphs 16 and 17 of the Notice of Appeal. These paragraphs do not disclose any arguable appeal ground that can be considered or determined by the Full Bench. The matters raised by paragraphs 16 and 17 are of no legal significance. As grounds of appeal, they are without merit.

46      We are unable to find anything else in the Notice of Appeal which would constitute grounds of appeal with prospects of success.

47      Accordingly, we are not satisfied that the appeal has prospects of success. Absent a prospect of success, justice does not require that the time to appeal be extended. The fact that the appeal has no prospects of success is fatal to Mr Simmonds’ case for an extension of time.

48      It is therefore strictly unnecessary for us to consider the other potentially relevant factors. We have done so only because Mr Simmonds and Western Power made submissions about them.

Length of the Delay

49      The delay is not lengthy. Three days is a relatively short period of delay. This factor alone would not prevent an extension of time being granted.

Reasons for delay

50      In the Notice of Appeal, Mr Simmonds says his delay is explained by the fact that he was ‘on sick leave to manage my mental health since August 20, 2024.’ He refers to being able to provide evidence of appointments with Resilia on three dates. It is not clear who or what Resilia is. Mr Simmonds did not provide any other evidence to explain why his mental health prevented him from filing a Notice of Appeal within time or what the change was in his mental health that might explain why he lodged his appeal on the date he did. The explanation of the reasons for the delay do not weigh in favour of an extension of time being granted.

Prejudice to Respondent

51      The respondent does not rely on any particular prejudice to it arising out of the delay in opposing the grant of an extension of time to appeal. It concedes that any prejudice is minimal.

52      This is also a neutral factor.