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[Extract from Queensland Government Industrial Gazette,

dated 11 March, 2005, Vol. 178, No.10, pages 215-216]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 – s. 74 – application for reinstatement

Lynette Ann Strugnell AND Workpac Light Industrial Pty Ltd (No. B1927 of 2004)

COMMISSIONER BLADES 2 March 2005

Unfair dismissal application – Extension of time – Application filed 15 days out of time – Applicant and Advocate aware of time limit – Conscious decision to ignore time limit on basis an extension usually granted – Part of modus operandi of Advocate – Time limit must be respected – In the peculiar circumstances of the case, extension of time refused.

DECISION

The applicant Ms Lynette Ann Strugnell lodged an application on 21 December 2004 alleging her unfair dismissal from the employment of the respondent Workpac Light Industrial Pty Ltd on 15 November 2004. Section 74(2) of the Industrial Relations Act 1999 provides that an application for reinstatement by an employee alleging an unfair dismissal must be made within 21 days after the dismissal takes effect or a further period the Commission allows on an application made at any time. The application was therefore lodged some 15 days out of time.

Ms Strugnell was, from the beginning, represented by Advocate Mr R. Steinitz.

The applicant seeks an extension of time in the following words:

“This Application has been delayed pending the outcome of an attempt to resolve the subject issue via private conciliation initiated by letter to the Respondent dated 26th November 2004; and this action – following the failure of that endeavour – is of ample merit to warrant the extension of filing time now required.”.

At the hearing, it was explained that Mr Steinitz wrote to QBuild on 26 November and when it was established that the correct employer was Workpac, he again wrote on 1 December 2004 seeking private negotiations.

In the matter of Bush v Deena Investments Pty Ltd No B246 of 2004, Mr Steinitz also acted for the applicant in an application which was 21 days out of time and which gave identical grounds as the basis for an extension of time. That application was subsequently withdrawn before the hearing of the extension of time application. There have been numerous other applications by Mr Steinitz’ clients for extension of time based on similar grounds. A perusal of applications lodged in 2004 reveals that similar terminology for the grounds of an extension has been provided in B67/04 Morritt 10 – days over; B66/04 Morritt – 11 days over; B46/04 Hutchen – 29 days over; B309/04 Lamb – 7 days over. None of these applications for extension was adjudicated upon by the Commission.

Ms Strugnell has given evidence that she was aware of the time limit “from the beginning” from information obtained from the Commission but that she was informed by Mr Steinitz that he would attempt private negotiations with the employer and that he would expect the Commission to allow an extension of time. She said she was told by Mr Steinitz not to pay him any money until he had tried to negotiate settlement and that she left it in his hands. There was also evidence about the non-receipt of a money order for $1,000, posted by her to Mr Steinitz on 8 December but which she replaced on 21 December to secure the lodgement of the application. By 8 December of course, the application was already out of time.

Mr Steinitz in his submissions has said that the mishap in relation to the payment did not delay the application in the first instance and that is clearly correct. What delayed the lodgement of the application was Mr Steinitz’ view that he was not required to lodge within the 21 days and that he would expect the Commission to grant an extension. He questioned the appropriateness of the 21 day time limitation and questioned a 21 day bench mark particularly in cases where only compensation was in issue. He emphasised that none of the delay was Ms Strugnell’s fault and that she relied upon his professional advice. In those circumstances, he submitted that an extension should be granted because, if there was error, it was his error. He relied upon Mather v Commercial and General Insurance Brokers (2005) 178 QGIG 132 and Kornicki v Telstra-Network Technology Group AIRC Print P3168.

The failure to lodge this application on time and the basis for this application for an extension of time is, unfortunately for the applicant, part of the modus operandi of Mr Steinitz. Mr Steinitz has been warned on a number of occasions that the failure to lodge in time may result in an extension not being granted. In Evans v Byrne Ford Pty Ltd (2002) 170 QGIG 13, Commissioner Thompson refused an application for an extension of time (albeit on a number of grounds) where Mr Steinitz made a submission that there was ample authority to the effect that if the delay was relatively minor and attributable to the applicant’s professional representative, then “that sin, if you like, will not be visited upon the applicant”. In the matter of Smith v Townsville Broadcasters Pty Ltd (1998) 159 QGIG 105, Commissioner Baldwin refused an application for an extension of time. The Commissioner’s decision records the following submission on that occasion:

“Mr Steinitz, an experienced representative in this jurisdiction, submitted that his advice to his client had been that it was common for the Commission to grant an extension of time in which to lodge an Application before the Commission, in circumstances such as these. He submitted that the failure to file the application was on account of his professional advice and that his client should not be penalised because of his advice.”.

While the submission was also unsuccessful on that occasion, it has been said that a representative error will operate less severely against an applicant than a personal error – see e.g. Hayes v CSR Readymix (1996) 153 QGIG 1546. But this was not an “error” but a conscious decision to ignore the time limit. That time limit set by the legislature must be respected – Morris v Electkaw Pty Ltd t/as Harvey Norman Electrical, Kawana Waters (1998) 157 QGIG 154 where Chief Commissioner Hall (as he then was) said:

“It is entirely unacceptable for litigants to ignore the limit and rely on an expectation induced by themselves and/or their agents that this Commission will indulge them with the grant of an extension of time if an appeal is made to natural justice and fairness.”.

There are broader considerations than merely the interests of the applicant – per Lockhart J in Hickey and Others v Australian Telecommunications Commission 47 ALR 517. In Saunders v Esanda Finance Corporation Ltd Supreme Court of South Australia (Unreported) 31 May 1996, Lander J said:

“The procedures of a court are not only for the guidance of the parties, but also for the guidance of their agents, namely, their legal advisers. A party, in my opinion, ordinarily must be bound by the action, or indeed, the inaction of that party’s legal advisers. It is imperative for the orderly working of the Rules of Court that legal advisers understand that their failure to act when required will be to the detriment of their clients. If it was otherwise, costs apart, there would be no sanction upon the conduct of legal practitioners. A party cannot, where it suits, distance himself or herself from his or her legal advisers and put the legal adviser in the position of a third party. To hold otherwise would mean that every time there was a default in the compliance with an order of the court, or a rule of the court, by reason of the default of a party’s legal adviser, the party could claim that the party himself or herself was not in default.

It is not sufficient merely for a party to say that the fault was the party’s agent to enable the party to say that the party has established a reasonable excuse for not having complied with the rules.”.

Finally in Dunn v Van Francis Pty Ltd, the AIRC in Print S0280 said that the failure to lodge within time would not generally be reasonably explained by continuing settlement negotiations.

The applicant is bound by the actions of her Advocate, authorised as they were and in this case, the actions of Mr Steinitz go beyond “mere representative error”. The persistence in refraining from lodging within time is a contumelious disregard of not only the provisions of the Act but also the exhortations of this Commission, the rights of other parties and the rights of his clients. He cannot be allowed to continue the practice. The Act provides for lodgement within 21 days, not 21 days or such longer period thought reasonable by Mr Steinitz.

The discretion to extend the time is unfettered. The principles applicable are to be found in Bruest v Qantas Airways Ltd (1995) 149 QGIG 777 and generally include the length of the delay, the explanation for the delay, the prejudice to the applicant if the extension is not granted, the prejudice to the respondent if the extension is granted and any relevant conduct of the respondent. The delay is not long, but not only is there no proper explanation for the delay, there was a conscious decision by an Advocate who admits that he does not believe in the appropriateness of the time limit imposed by the legislature and who has been warned not to ignore that limit. These are peculiar circumstances where the professed attitude needs correction. The applicant will suffer some prejudice but it is a prejudice which may be rectified in another jurisdiction.

In all of the circumstances of this case, I am not prepared to exercise my discretion to extend the time for the filing of this application and it is struck out.

B.J. BLADES, Commissioner.
Hearing Details:
2005 2 March
Released: 2 March 2005-03-02 / Appearances:
Mr R.H. Steinitz, Advocacy & Industrial Advisory Services, for the Applicant.
Ms C. Laird, Livingstones (Australia), with her Mr A. Johnson, for the Respondent.

Government Printer, Queensland

ÓThe State of Queensland 2005.