FEDERAL COURT OF AUSTRALIA

Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894

PRACTICE AND PROCEDURE – appeal – appeal out of time – application for extension – special reasons – relevance of prospects of success

Federal Court Rules  – O 52 r 15

GEORGE KWEIFIO-OKAI V ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY

VI 2661 OF 1996

JUDGE:          FINKELSTEIN J

PLACE:          MELBOURNE

DATE:            29 JUNE 1999

THE COURT ORDERS THAT:

1.      The time for filing and serving a Notice of Appeal from the judgment and order of Ryan J given on 30 April 1999 be extended until 4.15pm on 2 July 1999.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     For a period of approximately 10 years the applicant held a number of teaching positions with the Phillip Institute of Technology and then the Royal Melbourne Institute of Technology until the merger of those institutions. 

2                     During that period the applicant was involved in a series of disputes with other members of staff.  This led to his suspension from duties.  After an investigation the applicant was found guilty of misconduct and he was censored. 

3                     In view of the breakdown in the relationship between the applicant and other staff members, the Royal Melbourne Institute of Technology decided that, following the termination of his suspension, the applicant should not continue to work at the Bundoora campus where he had previously been employed for some years, but that he should be directed to work at the Technology's city campus. Such a direction was given, but the applicant refused to relocate.  This was regarded as further misconduct and, in the result, he was dismissed from employment. 

4                     The applicant then commenced proceedings against the Royal Melbourne Institute of Technology alleging that he had not been dismissed for a valid reason within the meaning of section 170DE(1) of the Industrial Relations Act 1988 (Cth) as in force at the time of his termination of employment.  That subsection provides:

“(1)     An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operation requirements of the undertaking, establishment or service.”

5                     The application was heard by a Judicial Registrar in July 1997 and was dismissed.  A review of that decision was heard by Ryan J and that review was dismissed.  The decision of Ryan J was handed down on 30 April 1999. 

6                     The applicant seeks to appeal the decision of Ryan J.  The time for filing his appeal has passed.  Order 52 Rule 15 of the Federal Court Rules provides that an appeal must be commenced within twenty-one days, but Order 52 Rule 15(2) provides that the time for an appeal may be extended “for special reasons”.  The applicant requests that he be given that extension and says that he has shown “special reasons” for that extension. 

7                     The applicant appears in person to press his claim as he did in the proceedings before Ryan J.  He has filed an affidavit which seeks to explain why he did not file his appeal papers within time.  It is convenient to set out that affidavit in full.  It reads, omitting formal parts:

“1.       I have been suffering teeth problems and receiving dental treatment.

    2.        Below (laid across) is a true copy of the dentist's certificate.” 

8                     There follows a certificate from a dentist, Dr Peter Nipe.  That certifies that the applicant had attended the dentist's surgery on 21 May 1999 and 27 May 1999, and that in his opinion the applicant “has been unable to follow his usual occupation.  Probable duration of incapacity 48 hours or more.”  A copy invoice for the services rendered shows that the applicant had received dental treatment from Dr Nipe on 21 May 1999.  The receipt describes that treatment as an “emergency exam”. 

9                     This is the sum total of the applicant's excuse for not filing his appeal papers within time.  It seems to me that the applicant would have been better served if he had simply stated he was negligent in failing to file the papers, rather than put forward what I regard as an unsatisfactory excuse.  However, notwithstanding the absence of a reasonable excuse for failing to comply with the time limits set by the rules, I am of the opinion that an extension of time should be granted.   My reasons are as follows.  First, the delay involved is not great, it is of the order of three weeks or so.  Second, RMIT has not suffered any prejudice by reason of the delay.  Third, the applicant may suffer a serious injustice if he is denied the right to appeal. 

10                  Let me explain this last point a little further.  Although it is not always necessary or even desirable to go into the merits of an appeal on an application such as this, I think that it is proper to do so in this case, albeit briefly.  I do so, because in my view, if the proposed appeal seems to be hopeless then no point would be served in granting an extension of time.  Conversely, if the proposed appeal has some merit then it is in the interest of the parties, and in my view in the interests of justice, to permit the appeal to go ahead unless there is some good reason why that should not occur.  A refusal to grant leave in such circumstances would cause unfair prejudice of a type that a court should not normally countenance. 

11                  In Ryan J's reasons for judgment there is to be found the terms and conditions of the applicant's employment.  One term deals with the place at which the applicant was to carry out his duties.  That term reads:

“Campus location:  You will be based at the Bundoora campus but may be required to work at other campuses of the university.”

12                  On one reading of this provision the applicant had contracted to carry out his principal teaching duties at the Bundoora campus, although RMIT could direct him to carry out certain of his duties at other campuses.  That is to say, the provision may be read as one which does not permit RMIT to direct the applicant to relocate to a campus other than the Bundoora campus to carry out all his principal duties, because the effect of such a direction would be to move his “base” from Bundoora to another campus.

13                 If this is a proper construction of the provision, then the direction given to the applicant is in breach of contract and arguably the applicant's dismissal for failing to act in accordance with such a direction could not constitute a “valid reason” for dismissal within the meaning of that expression as found in section 170DE(1).

14                  In other words, it seems to me to be at least arguable that a termination of employment that is based on a contravention of a contractual provision might not properly be characterised as a valid reason in the sense of being ‘well founded, sound or just’. 

15                  There are also other aspects of the reasons that suggested the proposed appeal is not doomed to failure.  One or two of them were mentioned during the course of submissions and it is not necessary for me to repeat them. 

16                  I do not mean to suggest by what I have said that I formed any opinion about whether the appeal will succeed.  I have not read sufficient of the material to enable me to form a strong view one way or the other.  But I must say that I have formed the opinion that the applicant has some, perhaps even some reasonable, prospects of success in showing that he was wrongfully dismissed.  I say nothing about what remedy would be available if the applicant was able to show that he was wrongfully dismissed.  It is not necessary for me to consider this issue on this application, and in any event I have formed no view about it. 

17                  Accordingly, the order that I will make is that the time for the filing and service of the notice of appeal be extended until 4.15 pm on 2 July 1999.  

Associate:

Dated:              29 June 1999