INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 020	
PARTIES:	DUSHANTHI MANOHARI WANNINAYAKE
(applicant)
v
STATE OF QUEENSLAND (DEPARTMENT OF NATURAL RESOURCES AND MINES)
(respondent)	
CASE NO/S:	C/2015/29	
PROCEEDING:	Appeal 	
DELIVERED ON:	27 July 2015	
HEARING DATE:	27 July 2015	
MEMBER:	Martin J, President	
ORDER/S:	Application dismissed.	
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – APPEALS – PROCEDURAL AND OTHER MATTERS RELATING TO APPEALS – where the applicant sought an extension of time to appeal a decision of the Commission to dismiss her application for reinstatement – where the applicant had previously appealed to the Full Bench of the Commission – where that appeal was dismissed – where the applicant sought to re-argue her case without identifying any errors of law or excess or want of jurisdiction – where the appeal for which leave was sought was 163 days out of time  – whether the justice of the case requires the indulgence sought – whether the case sought to be appealed has prospects of success – whether there is an explanation of the delay between the expiry of the time period and the time at which the application was filed

Industrial Relations Act 1990, s 342, s 346
Industrial Relations (Tribunals) Rules 2011, s 8
	
APPEARANCES:	DM Wanninayake in person 
JW Merrell directly instructed by the respondent 

[1]	This is an application for extension of time in which to appeal from a decision of the Commission.  A brief chronology of events is as follows.  
16 December 2014: 	The applicant’s decision for reinstatement was dismissed.	
5 January 2015: 	The applicant filed an application to appeal to a Full Bench of the Commission, pursuant to s 342 of the Industrial Relations Act 1990.	
6 January 2015:	The applicant filed an application for leave to appeal to a Full Bench under the same section.	
20 February 2015:	The application for leave to appeal to the Full Bench was heard.	
14 May 2015:	The application for leave to appeal to a Full Bench was dismissed.	
18 June 2015:	The applicant filed an application to appeal to this Court.	
1 July 2015:	The applicant filed an application for extension of time to appeal to this Court.	

[2]	Upon the applicant commencing her submissions this afternoon, she informed me that she had also filed an appeal from the decision of the Full Bench and that that appeal was filed in early June. I have not seen that appeal; nor, as I understand it, has Mr Merrell, who appears for the respondent. In any event, it has not been listed for hearing today.
[3]	It occurred to me from the arguments put forward that the applicant was confused about the status of an appeal from the Full Bench. Such an appeal does not constitute or envisage an appeal from the primary judgment. The only matters for consideration on an appeal from a Full Bench would be those which are set out in s 342 of the Industrial Relations Act 1990 (‘the Act’), that is, an applicant/appellant must demonstrate an error of law or an excess or want of jurisdiction in the decision of the Full Bench. One cannot avoid time limits prescribed under the Act by dressing an appeal from a decision of the Full Bench in a way that seeks to, at the same time, appeal from the decision at first instance.  
[4]	The applicant also referred to s 8 of the Industrial Relations (Tribunal) Rules 2011, as she appeared to be of the view that that allowed the application to be made. Section 8 is irrelevant for these purposes, as it relates only to the appropriate form to be used to commence an application. It does not relate to time limits.
[5]	Section 346 of the Act allows the Court to grant an extension of time beyond the statutory 21-day limit. In order to be successful, an applicant must discharge the burden which exists. Put briefly, there are three main points. First, an applicant must demonstrate that the justice of the case requires the indulgence sought. Secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success. Thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed. 
[6]	In her oral submissions today, the applicant sought to re-argue her case, but that is not the method by which this type of application proceeds. An argument of that type can only be advanced if it is relevant to demonstrate an error of law or an excess or want of jurisdiction.
[7]	In this case, the applicant advanced a number of contentions which could only have related to issues of fact, and no argument was proposed which sought to demonstrate that, in dealing with those facts, the Deputy President had erred in law or had moved outside jurisdiction. Instead, the applicant engaged in a recitation of some evidence and some contentions about what that evidence meant. 
[8]	The applicant also advanced an argument that it was in the public interest for her appeal to be heard.  The issue of whether or not an appeal should be heard in the public interest is one which is referred to particularly in the sections dealing with appeals to a Full Bench. It is not an issue that relates to an application for extension of time. 
[9]	In order to have brought an appeal to this Court from the decision of Deputy President Kaufman, an appeal should have been filed no later than the 6th of January 2015.  The appeal for which leave is sought is 163 days out of time.
[10]	The matters which I regard as relevant, or, I should say, most relevant in this matter are as follows.  
[11]	First, it was demonstrated that the applicant could have appealed within time, because she was able to file an appeal to a Full Bench within the relevant time period.  
[12]	Secondly, there is no explanation, or no satisfactory explanation, for the delay which occurred between the primary judgment and the Full Bench decision. In her submissions the applicant claims to have misunderstood, but she took the course which, if successful, would have allowed an appeal on the facts. It will ordinarily require substantial grounds to justify delay where one appeal route was taken and then, when unsuccessful, the applicant seeks to take the other route.  
[13]	Thirdly, there is no compelling explanation for the delay which occurred after the decision of the Full Bench. The applicant says she was unwell, but the support for that is non-existent.
[14]	Fourthly, although the applicant is unrepresented now, she had legal advice when the Full Bench matter was heard, and no explanation has been given as to why that particular route was taken in preference to coming to the Industrial Court. 
[15]	Fifthly, the draft notice of appeal is grossly inadequate.  So far as prospects of success are concerned, the notice of appeal does not identify any error of law or any issue relating to jurisdiction.  Rather, it consists of a series of requests for review of various parts of the first instance decision. As such, it would be struck out had it otherwise been filed within time.  
[16]	Finally, the respondent has had to deal with one proposed appeal already, in which the applicant sought to argue both errors of fact and of law. The prejudice is obvious.  
[17]	For the reasons I have referred to already, I am satisfied that the applicant has not demonstrated any basis for allowing an extension of time. The application is dismissed.