Whether power to extend time – relevant provisions of the Act

(a) The Director General's submissions

8. 
   On behalf of the Director General it is said that the Full Bench of the Commission has consistently relied upon the decision of Kennedy J in Cousins v YMCA of Perth [2001] WASCA 374; (2002) 82 WAIG 5, in finding that it has power to extend the time within which an appeal to it may be instituted. It is also pointed out, however, that the appeal in Cousins focused on the issues of whether a 'cross-appeal' to the Full Bench was competent and, it having been found that it was not, whether the Full Bench had erred in not exercising its discretion to extend the time within which an appeal may be instituted. Thus, it is said the issue of whether the Full Bench has power to extend the time within which an appeal to it may be instituted does not appear to have been the subject of contest before the Industrial Appeal Court.
   
9. 
   It is submitted on behalf of the Director General that s 27(1)(n) of the Act cannot be relied upon by the Full Bench to extend the time within which an appeal to it may be instituted. The Director General also points out that s 27(1) of the Act commences with the words 'Except as otherwise provided in this Act' which means that the powers in s 27(1) are subject to express exclusion or exclusion by necessary intendment.
   
10. 
    In support of the Director General's argument that the Full Bench has no power to extend time, the Director General relies upon two decisions.
    
11. 
    The first is the decision of Fielding C in Richardson v Cecil Bros Pty Ltd (1994) 74 WAIG 1017 in which the Commissioner found s 27(1)(n) of the Act was excluded by necessary intendment and thus could not empower the Commission at first instance to extend time to an employee to refer a claim of harsh, oppressive and unfair dismissal to the Commission.
    
12. 
    The second is the decision of the Industrial Appeal Court in Saldanha v Fujitsu Australia Ltd [2009] WASCA 119; (2009) 89 WAIG 875. In Saldanha the Industrial Appeal Court found there was no power to extend the time within which an appeal to the Industrial Appeal Court may be instituted. The language in s 90(2) of the Act (which was considered by the Industrial Appeal Court) is in identical terms to s 49(3) of the Act. It is contended that the Industrial Appeal Court held that the language in s 90(2) is such that it is clear there is no ability to extend time, whether or not there is a power that allowed for extensions of time once jurisdiction had been established. The Industrial Appeal Court in Saldanha applied the reasoning in Patterson v Public Service Board of NSW (1984) 1 NSWLR 237 in which the Court of Appeal of the Supreme Court of New South Wales held that a power to extend time only applies in the absence of express words to the contrary or of reasonably plain intendment otherwise and that a contrary intention would be shown by providing a condition precedent to the exercise of the jurisdiction conferred or to the right to invoke it, such as a condition which makes a mandatory provision that some step shall be taken by a party (239). The reasoning in Patterson, the Director General says, is essentially the same reasoning as that of Fielding C in Richardson.
    
13. 
    Whilst it is said that the Director General accepts that the Industrial Appeal Court did not have available to it the powers under s 27(1) of the Act and so did not expressly consider s 27(1), reading s 27(1)(n) and s 90(2) of the Act together, there is no reason, other than exclusion by necessary intendment, why the Court could not extend time under s 90(2) of the Act. In any event, it is said that it is clear that the Industrial Appeal Court considered that a power such as that found in s 27(1)(n) of the Act was not exercisable in the face of the language 'shall be instituted within 21 days from the date of the decision against which the appeal is brought' for two reasons relevant to the current matter. These reasons are as follows:
    

(b) the Industrial Appeal Court held that regulation 26 Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980, which it was argued gave the Industrial Appeal Court power to extend time, could not be relied upon because 'the requirement to institute the appeal within time is not a procedural requirement, but a precondition to the competence of the appeal.' It is submitted that the Industrial Appeal Court considered that general powers to extend time were of no use in the face of language such as that used in section 90(2).

14. 
    Thus, it is said that whilst the decision in Saldanha did not deal with the relationship between s 27(1)(n) and s 49(3) of the Act, the reasoning is directly applicable, given that the language in s 90(2) of the Act is identical and the Court found, by its reliance on Patterson and comments on reg 26 of the Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980 (WA), that a power such as that in s 27(1)(n) could not assist an appellant who had instituted an appeal out of time.
    
15. 
    For these reasons, it is said that the reasoning in Saldanha is applicable and as it followed argument on the matter, whereas the decision in Cousins apparently did not, the decision in Saldanha is to be preferred and should be applied in the present case with the result that the Full Bench of the Commission does not have power to extend the time for the institution of the purported appeal before it. Thus, it is said that the time limit in s 49(3) needs to be complied with to establish the jurisdiction to institute an appeal.