C2001/2221, Transcript of Proceedings [2002] AIRCTrans 966 (26 March 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT McINTYRE
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER SMITH

C2001/2221

APPEAL UNDER SECTION 45 BY
PACIFIC COAL PTY LIMITED AGAINST
A DECISION OF COMMISSIONER HODDER
IN BRISBANE ON 9 APRIL 2001 IN
U NO 20854 OF 1998 RE APPLICATIONS
FOR RELIEF RE TERMINATION OF
EMPLOYMENT

SYDNEY

10.05 AM, FRIDAY, 8 MARCH 2002

Continued from 13.12.01

PN2390

VICE PRESIDENT McINTYRE: This matter is listed pursuant to our decision of 18 February and we would invite any further submissions on the matter. Mr Parry.

PN2391

MR PARRY: If your Honour pleases. Your Honour, the invitation advanced by the Full Bench indicates that having - if error was found, that submissions be made having regard to the error found. Now, we note from paragraph 30 of the decision that the Full Bench has identified a number of vices in the decision of the Commissioner of first instance and in paragraph 33, the Full Bench has, on our reading, seen and found that there is appealable error. Earlier in the paragraph it does speak of a position of error being seriously arguable, but as we read paragraph 33, it identifies that there has been appealable error found.

PN2392

Now, we make the first submission today and what I propose doing is going through a number of matters that we submit the Full Bench should do and where this proceeding should go. Our first submission is that in light of an appealable error being found, the decision and orders of the Commissioner should be quashed. In my submission, the decision having been found to be accompanied by appealable error, should not continue to stand and the orders upon which it is based, should also not continue to stand.

PN2393

Now, we say that what follows from the quashing of the order would of course be the coming to an end of the stay order made by this - by the Presiding Member earlier - or late last year. Does the Full Bench have a copy of the decision and stay order of Vice President McIntyre? I have copies I can hand up if that is of assistance.

PN2394

VICE PRESIDENT McINTYRE: May be if you could hand up an original copy, it would be helpful.

PN2395

MR PARRY: Proceeding now to make submissions on the assumption that the Full Bench has found appealable error and if such appealable error is found and the decision is quashed, then we would submit that the effect of that would be to bring to the end the order of the Vice President. Now, if the position is different to that and perhaps it is only said to be seriously arguable, I would submit that in any event, the stay order should be brought to an end.

PN2396

The decision that I have handed up of 12 August 2001 has within it the approach that was taken - - -

PN2397

VICE PRESIDENT McINTYRE: 12 October.

PN2398

MR PARRY: I am sorry, of October, 12 October, has within it the principles of approach that was taken at the time and of course, as with all stay applications, it was heard and determined before the appeal had been advanced and before argument had been put and also obviously before the decision that has been handed down with the findings and observations within it. Now, the stay order in paragraph 5 refers to there being an arguable case and so your Honour was satisfied there that there was an arguable case and put it no higher.

PN2399

Now, my submission today is that the position has advanced significantly from that. What the Full Bench has found is, there was an error, in my submission. It was an error whereby the Commissioner adopted the submissions of the applicants below, made certain observations about the position of the appellant without relying on the evidence and then made certain orders reinstating the various applicants.

PN2400

Now, in my submission, paragraph 5 - the position that was before the Commission that underpinned paragraph 5 has moved on quite significantly. The Commission can be satisfied that there is either error or at least seriously arguable error. So firstly we say the case for the upholding of the appeal is very strong and indeed we say that is the inevitable outcome of the errors found. Secondly, with regard to balance of convenience, as your Honour noted in that particular case, the applicants were reinstated and were paid - were then put on the payroll and were paid wages and that continued from 9 April 2001 and continues to date in accordance with your Honour's order.

PN2401

Now, at that time, in October, the Commission took particular note of the fact that the appeal was listed for hearing on the 11th to 14 December 2001. Obviously that was two months or three months ahead of the date of the stay order, which is now a couple of months behind us. In my submission, where there are no doubt going to be further proceedings, I imagine contemplated by this Full Bench in finishing off the appeal, in those circumstances where the applicants have been paid wages well in excess of the six month period and indeed almost a year, in those circumstances, it is now appropriate that that stay order cease and that the appeal proceed, if that be the decision of the Full Bench, without the appellant being under an obligation to make payments which arise from a decision which has been found to be one based on error. In my submission, the stay order should, in any event, be terminated by this Full Bench.

PN2402

COMMISSIONER SMITH: Mr Parry, if the decision and order are quashed and the stay order set aside, what is the status of the wages that is already been paid?

PN2403

MR PARRY: Well, I am not sure where - if it is stayed as of now - I am sorry, the stay order is finished and the appeal - the decision is quashed, then this Full Bench either proceeds to dispose of the appeal and in light of that decision, I suppose the status of those wages will be clarified. If the appeal is ultimately dismissed, there have been amounts paid by the appellant when it didn't need to make those payments. Now, presumably there will be an argument that they may be recoverable amounts.

PN2404

COMMISSIONER SMITH: Yes, thank you.

PN2405

MR PARRY: Now, I will put forward the submission based on there being serious error. In my submission, even if the Full Bench found it was seriously arguable only, then we still submit that the decision and order should be quashed. And indeed we make that submission based on what we understand to be the normal approach in appeals of this Commission, that is leave to appeal is granted, the decision or order is then quashed and then there is a re-hearing of the appeal. In my submission, it would be a curious circumstance if a re-hearing was conducted in an environment where the appellant was constrained by an order that had been quashed.

PN2406

SENIOR DEPUTY PRESIDENT KAUFMAN: That had been quashed or had not been quashed?

PN2407

MR PARRY: That had not been quashed.

PN2408

SENIOR DEPUTY PRESIDENT KAUFMAN: But at this stage Mr Parry, we have given leave to appeal and what needs to be progressed now is the conduct of the appeal. To quash the orders of Commissioner Hodder at this stage is tantamount to giving you your ultimate release, is it not?

PN2409

MR PARRY: No, it is not. Ultimately the Full Bench will hear the appeal, in my submission, in a re-hearing as envisaged in Coal & Allied and then it will make a decision. Now, that decision could be one of three things. It could be, one can never rule out more options, one of three things. No doubt there are more fertile imaginations than mine on the Bench. Firstly, the applications are dismissed. Now, in those circumstances, the amounts that have been paid, have been paid when there was no requirement at law that they should have been paid. In those circumstances, there will no doubt be arguments whether those amounts are recoverable or not.

PN2410

I am not asserting that they are automatically recoverable, because there will no doubt be debate about that. Secondly, the appeal is upheld and the Commission forms the view that reinstatement is not practicable and then orders compensation. Now, in those circumstances we would of course say we have paid more than that amount already. And thirdly, if employees are reinstated, then there can be orders made by this Full Bench putting the employees back and ordering back pay. So I don't see, in my submission, that quashing the order at this stage is granting us the ultimate relief. That is something that the Full Bench will determine, having heard the appeal.

PN2411

Now, perhaps since your Honour has raised it, I am going to refer to some parts of Coal & Allied, the High Court decision and perhaps it is appropriate that I hand up a copy of that at this stage which some parts of it do bear on the issue your Honour has just raised. It is the Coal & Allied High Court case reported [2000] HCA 47; (2000) 203 CLR 194.

PN2412

Now, this proposition about the quashing really, I think, the most clear explanation of it, I think, comes in Callinan Js decision which was consistent with the majority and it is at paragraph 133 on page 246, the very last page where his Honour said:

PN2413

Once the Full Bench decided as it did that the Commission ...(reads)... if required why the appeal was bound to succeed.

PN2414

Now, we make the submission that where error is found then the Full Bench should quash the decision, quash the orders and then proceed to the next step which is the re-hearing. Now, that next step, in my submission, from Coal & Allied is a re-hearing. It is a re-hearing and I think paragraphs 13 on page 203 onward, describe the Commission's role under section 45 and that is that there be a re-hearing and that re-hearing, again, I think at paragraph 17 of the Full High Court's judgment refers to an appeal by way of re-hearing. I think also Callinan J explains that rather more fully in paragraph 119, which is on page 242, halfway through paragraph 119 where his Honour said, when describing appeals from a Judge by re-hearing, and I think here his Honour was referring to a judgment of the Court of Appeal of New South Wales where it said:

PN2415

Appeals from a Judge by way of a re-hearing -

PN2416

and there is reference to section 75A of the Supreme Court Act and then almost invariably -

PN2417

however power to receive fresh evidence is implied ...(reads)... then exist, changes in the law will be regarded.

PN2418

So, to that end, it is our submission that this Full Bench now is required to conduct a re-hearing. As part of that re-hearing, the Full Bench may form the view that further evidence is required or appropriate and in particular, section 45(6) of the appeal provisions in the Act, specifically allow the Full Bench to admit further evidence in an appeal. One circumstance that the Full Bench may consider evidence is appropriate or necessary is the current state of opportunities of work at the mine. The Full Bench may recall during the appeal argument, there were submissions made and the Full Bench was taken to evidence that was given below regarding the opportunities that existed at the mine and we submitted that that evidence showed that there were no positions that were available at the mine.

PN2419

Now, of course, this was a case where the employees were terminated in mid 1998. The evidence was heard in 1999 and I think final submissions were handed in in January and February 2000. Now, if the Full Bench were to form the view that further evidence on that was appropriate, we, the appellant would call evidence that there are currently no vacancies for such persons as the applicants and no foreseeable prospect of there being such vacancies. That would be the nature of the evidence that we would call if the Full Bench formed the view that that was appropriate. And we would of course submit that the position hadn't changed from when the case was argued.

PN2420

Now, in this further evidence, the options are, I think, under section 45(6) that the Full Bench may admit further evidence or may direct a member of the Commission to provide a report in relation to a specified matter. And it would be open to this Full Bench to either take that evidence itself or direct another Commissioner to do it.

PN2421

Now, we would say that if there are issues of credit to be raised, that is, if it is to be contested that the evidence that I've adverted to would be challenged or it being put that the person giving the evidence wasn't telling the truth, as I've described it, that is, that there are no positions at the mine, then it would be necessary in my submission that this Full Bench hear that evidence so it can form its own views as to credit. Now, if credit is not to be an issue in the giving of that evidence it may that either a single Member of this Full Bench or indeed another Commissioner would take that evidence.

PN2422

It's fairly clear, I think, from Coal and Allied in this particular case that I'm not referring to section 45(7). Now, section 45(7), in effect, gives powers to the Full Bench once it has determined there is appealable error, so if the Full Bench forms a view there's appealable error it proceeds to in my submission quash the earlier order and then embark on a re-hearing, it may exercise the powers under section 45(7). I think that's made fairly clear in Coal and Allied in paragraph 18 on page 204 where there's a distinction drawn between section 45(6) and 45(7), section 45, as the majority said there, - - -

PN2423

VICE PRESIDENT McINTYRE: Sorry, what paragraph are you at again?

PN2424

MR PARRY: Paragraph 17 and 18 on page 204, your Honour. As your Honours and Commissioner might note, paragraph 17 says there halfway through:

PN2425

And because there's nothing to suggest otherwise it's powers under subsection (7) are ...(reads)... primary decision maker.

PN2426

And that proposition is repeated in the next paragraph where there's reference made to there being a requirement that there be appealable error.

PN2427

So, the Full Bench, it goes:

PN2428

As we read the decision there is appealable error.

PN2429

If there is appealable error the decision should be quashed and if there is appealable error the Commission has the powers in section 45(6) or (7). But if the Commission alternatively has only found it seriously arguable that there's appealable error the Commission can't exercise the powers in section 45(7); it can exercise the powers in section 45(6).

PN2430

Now, this becomes a little important to the next submission and that is if the Full Bench determines there should be more evidence under section 45(6) or if the decision is quashed and there is to be a re-hearing and there is to be further submissions or evidence called under section 45(7) who should do it? Now, we submit that any further evidence that would be called as far as we're concerned, if required by the Full Bench, would go to those issues that are identified, it would be fairly narrow and brief evidence, as we would imagine, and we would also contemplate that it wouldn't be contested particularly. Well, it might be that it is contested.

PN2431

VICE PRESIDENT McINTYRE: It sounds like it.

PN2432

MR PARRY: It sounds like it.

PN2433

MR CRAWSHAW: Well, I don't know.

PN2434

MR PARRY: Now, if it is contested then it's appropriate that the Full Bench hear it and make decision with regard to it. We don't contemplate that being an extended process. We would only anticipate there being in all likelihood one witness and we would imagine that that could take place in a couple of days, one to two days. Our own estimate would be one day, but the amusement to my right would suggest that we should always err on the side of caution in making estimates.

PN2435

If the Full Bench were to form the view that there needed to be a bigger process then it's been suggested in the decision that we can make submissions having regard to the error found, including whether the matter should be referred to Commissioner Hodder or delegated to another Member for further hearing. Now, that in my submission appears to contemplate a section 45(7) approach rather than a section 45(6) approach, and if it is were to be the process of a section 45(7) approach, that is a re-hearing of the matter by another Commissioner - which I'm not sure is really contemplated by section 45(7) - but in that case that further hearing should be conducted in the absence of the earlier decision and orders.

PN2436

As to the option of Commissioner Hodder might I make the submission that section 45(6) and (7) both give the discretion to the Full Bench as to who and the question that is to be referred to the Commission Member. There is no requirement in section 45(6) or (7) that it go back to Commissioner Hodder. In the circumstances where there was evidence given in 1999 and there's extensive transcript the submissions - so the evidence was actually given nearly three years ago - the extensive time that has passed it can't be assumed that Commissioner Hodder is in any better position to hear and determine this than anyone else.

PN2437

Secondly, as the Full Bench has asked, we should have regard to the error found. Now, the error found in our submission is that the Commissioner did not conduct the arbitration properly. This I think starts at paragraph 16 where the Full Bench has extracted part of the submissions on leave to appeal and it said there in the submissions by the appellant:

PN2438

In short, the decision of the Commissioner does not evidence the proper conduct of the arbitration with which he was charged.

PN2439

And the Appeal Bench has substantially said:

PN2440

That submission is substantially correct.

PN2441

So, the first error that we see is that the arbitration has not been conducted properly. Secondly, and it's probably a subset of the first, the Commissioner has ignored the appellant's submissions at first instance below without explanation. That is, as the Full Bench has set out in the following paragraphs, whereas both parties below made submissions on issue, the Commissioner simply ignored the appellant's submissions.

PN2442

Thirdly, the Commissioner made damning findings without reference to evidence, and he said in his decision below that he saw conspiracy and bias across management. They are damming the findings of the appellant and in the light of those errors and the approach taken by the Commissioner, it is our submission that in the exercise of its discretion as to the next steps, the Full Bench should not send any part of this matter back to Commissioner Hodder.

PN2443

Thirdly, we do make the submission which is that we would submit that an apprehension of bias would arise. Now, the principles with regard to this have been well canvassed before the Commission. I will hand up to the Commission, a copy of the High Court judgment in Livesey v New South Wales Bar Association which sets out those principles. Now, the principles - this is internet version of the Commonwealth Law Report[1983] HCA 17; , (1983) 151 CLR 288. No doubt the Full Bench is familiar with the general facts of Livesey involving a Court making various findings about the credit of witnesses and then the issue arose as to whether the same order as similarly constituted Court could hear a later case involving the person about which findings had been made.

PN2444

Now, the principle of law appears on page 5 of the internet copy under the heading The Law. There is reference to R v Watson and the principle, as I quote is:

PN2445

That a Judge should not sit to hear a case if, in all ...(reads)... applied in this Court, there is reference to it.

PN2446

Now, on page 6, the following page, there is reference to what is the Bacon case, the facts of it where there had been findings made below about credit and credibility and down the bottom of page 6, the first major paragraph, Reynolds JRs findings were also strongly adverse to the appellant and the Full Court went on and formed the view on page 9, about halfway down the page, under the heading (1983) 151 CLR 300:

PN2447

It is however apparent that in a case such as the present ...(reads)... significance on such a question of fact.

PN2448

Now, applying that to the current circumstances, as I submitted earlier, this was a case where evidence was heard in 1999, there were written submission in February 2000, a decision followed some 14 months later. A decision after that period which essentially ignored the submissions of the applicant, the appellant and made serious findings without reference to the evidence. Now, in my submission, in light of that error and approach by the Commissioner at first instance, an apprehension by a party such as the appellant that the Commission will not bring an impartial or unprejudiced mind to any further question, is a reasonable apprehension and in my submission, where there is such a reasonable apprehension, it would be an error for the matter to be remitted to Commissioner Hodder.

PN2449

Further and this goes beyond the nature of the error identified, but the Full Bench will recall that during the appeal, there were a number of submissions made about the Commissioner's conduct in the running of the arbitration. Now, the Full Bench has not made findings about that in its judgment, but for example, the Commission - the Full Bench might recall the Commission - the Full Bench being taken to the Commissioner's intervention in the cross-examination of Mr Brown where he insisted that there be a yes or no answer given to a question which contained a number of propositions and that answer was then relied on by the applicants and ultimately by the Commissioner.

PN2450

Further, the Full Bench might recall submissions being made about the Commissioner not controlling cross-examination in the proceedings below. So, whilst there are no findings about those matters, they are matters that we would also submit would raise an apprehension in a party that the Commissioner would not bring an impartial or unprejudiced mind and that apprehension is a reasonable one.

PN2451

Finally with regard to the matter of going back to the Commissioner Hodder, it might be said that it can be sent back to him to somehow give further reasons. And in my submission, such an approach would be an error. The Commissioner has given his reasons. They are, in our submission, fallacious, without analysis and totally inappropriate and where the Commissioner has given his reasons by adopting the submissions of one party without analysis, it would be an inappropriate step to somehow require him then to give further reasons.

PN2452

Might I make this final submission with regard to the progression of this matter. Any further involvement by Commissioner Hodder may well lead to a prolongation of the proceedings and in my submission, it is in all parties' interests in this matter that the matter be dealt with as expeditiously as possible so that not only the applicants, but also the appellant can get on with its operation and lives.

PN2453

Now, the matter of further evidence, in my submission, doesn't require a Commissioner, doesn't require a delegation to another Commissioner. In my submission, if there is to be further evidence, that will be a short process, but that is a matter for the Full Bench. If there is not to be evidence or in the event that there is, the Full Bench might be assisted by submissions in that re-hearing. Now, what has happened to date is that there have been - - -

PN2454

COMMISSIONER SMITH: We shouldn't assume that it is only Commissioners that get these jobs, Mr Parry.

PN2455

MR PARRY: I suppose I am going on past practice, Commissioner. It seems to be the case that more likely than not it is the Commissioner, but - - -

PN2456

COMMISSIONER SMITH: Sometimes it is a two one vote.

PN2457

MR PARRY: We certainly don't express - that is not a distinction we made between the ranks in this submission.

PN2458

VICE PRESIDENT McINTYRE: I understood the word to mean Members of the Commission.

PN2459

MR PARRY: Yes, I am indebted to your Honour. What has happened to date is that there have been - there were written submissions put in February 2000, very extensive ones. Now, the Commissioner then made a number of findings and the Full Bench has now also been provided with extensive submissions but in a large part those submissions that have been provided to the Full Bench go to the errors the Commissioner made in how he approached the decision - how he approached the evidence. Now, we would submit that a further hearing should really - it's not going to be assisted much, if at all, by the decision of Commissioner Hodder below.

PN2460

There are virtually no findings on particular matters that are of assistance. We would submit that the Commission - or the Full Bench - may well be assisted by submissions as to the evidence and what should be done on rehearing it. Now, that might now be submissions with regarding to the whole case but might be with regard to particular matters and that may be as to merit or it might be as to remedy or it might be as to both.

PN2461

Now, those submissions if they were to take place could be provided in writing but we would also submit that in a case such as this there should be further oral submissions made to the Full Bench. Now, those oral submissions we would anticipate would take three to four days and we would then be submitting that this Full Bench should rehear the matter - well, hear the matter, here the argument and make the decision finally disposing of the applications in respect of these 15 persons - 16.

PN2462

If the Commission pleases, that's the approach that - the next stages that we say should take place.

PN2463

COMMISSIONER SMITH: Mr Parry, even at this stage is the prospect of - or could there be a prospect of any further conciliation or is that simply not an option from your client's point of view?

PN2464

MR PARRY: No, I wouldn't say it's not an option. Indeed, it would be better for all if there was some other resolution to this, so if the Commission were to form the view that that was a step in this process we certainly wouldn't oppose that. If the Commission pleases.

PN2465

VICE PRESIDENT McINTYRE: Thanks, Mr Parry. Mr Crawshaw?

PN2466

MR CRAWSHAW: I wonder whether I might just have a short break. There are some matters - I was put on notice of some of those matters that have been raised but not all of them and I'd just like to discuss those questions. And also the other thing I want to do is give you an authority post Livesey which I think is relevant. I just want to dig that out.

PN2467

VICE PRESIDENT McINTYRE: Yes, well - there is no objection to that I take it, Mr Parry?

PN2468

MR PARRY: No.

PN2469

VICE PRESIDENT McINTYRE: All right. We'll adjourn for a short time.

SHORT ADJOURNMENT [10.49am]

RESUMED [11.07am]

PN2470

MR CRAWSHAW: Thanks for that indulgence, your Honour, and members of the Tribunal. Obviously, within the submissions of my friend, I suppose based on the terms of the decision there is a preliminary point, as it were, to be decided and that is what the Tribunal - what this Bench intended to do, namely, whether the Bench merely sought to find sufficient error to justify a grant of leave to appeal or whether this Bench went on to find appealable error.

PN2471

That seems to be the point that my learned friend is making and I suppose the easy way to deal with that is not argue with the Bench about what your decision means but it's really that the Bench is obviously in a better position to know what it meant. It's not as though we're trying to construe legislation or a later decision - an earlier decision or matters of that kind, suffice it to point out that in paragraph 33 that seems to be focussed on the granting of leave to appeal and paragraph 34 refers to our submissions in relation to a finding of error as distinct - that seems to be using that as the - the logic being the same for bringing the matter back on, leave to appeal having been found.

PN2472

So, I won't pursue that matter any further. As I say, it seems a bit strange to be debating before you what you meant. But we say whatever is the case the matter should be sent back to Commissioner Hodder to give adequate reasons in relation to the matters identified by the Commission where there has been no or inadequate reasons. If the case is one where leave to appeal is being granted on the basis of no or inadequate reasons it falls fully within the boundaries of the case of re Astech 35 IR 361.

PN2473

If I could just hand up a copy of that decision to the Commission. You will see in that case Commissioner Grimshaw had refused applications pursuant to section 111(1)(g) of the Act and after hearing some argument at the bottom of page 261 the Bench in that case sought submissions from the parties on whether they - as to why they shouldn't in view of the presumably, lack of reasoning - or lack of reasons in the decision of the Commissioner:

PN2474

Grant leave to appeal pursuant to 45(7)(c) direct Commissioner Grimshaw to provide reasons and adjourn the further hearing of the appeal until such time as any award is made.

PN2475

There is then some discussion about the arguments. The appellant didn't consent to that - or didn't agree with that course although saying it was open. There is then discussion of various cases about the giving of reasons and at the end of the day the Full Bench in that case did exactly what they proposed to the parties that they wanted to hear submissions about. So, we would say if you've only found leave to appeal if falls squarely within this sort of case and for the same reasons should be sent back to the Commissioner for further reasons.

PN2476

If, on the other hand, error - appealable error has been found. We submit it should still - the case should still be sent back to Commissioner Hodder to give reasons. Well, perhaps - just before coming to that can I just return to the leave to appeal situation. That - it may be that Astech is not as simple as I suggested and I say that because of the Coal and Allied decision, and particularly paragraph 17 of that decision which my learned friend took you to. But can I just - I'm not sure if he was taking you to it for the same point. It say:

PN2477

Because the Full Bench of the Commission has power under section 45 subsection 6 to receive further evidence on appeal ...(reads)... error on the part of the primary decision maker.

PN2478

And that is so regardless of the different decisions that may be the subject of an appeal under section 45. Now, you will recall when I took you to Astech that the submissions went to the question as to whether the matter shouldn't be sent back to Commissioner Grimshaw or whether he shouldn't be - sent back is probably a misnomer - whether he shouldn't be directed pursuant to section 45 subsection 7(c) to provide reasons for his decision.

PN2479

And then over on page 265 at about point 7 the Full Bench in that case says:

PN2480

It was for these reasons that we decided to adopt the course of directing the Commissioner...(reads)... reasons for his decision.

PN2481

Now, the reason why I saw there may be a complication here is because of what Coal and Allied says in relation to - at paragraph 7:

PN2482

In relation to exercising the power under subsection 7 only if there is error on the part of the primary decision maker.

PN2483

That may cause some problems for the Astech decision in that, in Astech there was only leave to appeal found. There wasn't a finding of error - appealable error. The effect of the High Court decision, or certainly the majority - the major majority decision - there was the three person decision and there was Callum J and Kirby J dissenting.

PN2484

Certainly, paragraph 17 seems to suggest that you can only exercise those powers under subsection 7 on the finding of appealable error. Now, it may be that that can be read down to the facts of the case and the High Court was only talking about, you can only redetermine matters for yourselves under subsection 7 if there is a finding of error. But on the face of it, it seems to be broader than that. So, that does create a complication for the Astech decision but not a particularly troublesome complication, we suggest, because if you only find leave to appeal and subsection 7 is therefore not available because there hasn't been a finding of error you can still use your powers under subsection 6, and in particularly, under subsection 6(b:

PN2485

You may direct a member of the Commission to provide a report in relation to a specified matter.

PN2486

So, what we're saying is, to the extent that the High Court decision at paragraph 17 provides a complication for the Astech decision, that's overcome by simply instead of using the powers under section 45(7)(c), using the power under 45(6)(b) to direct Commissioner Hodder to provide a report giving reasons in relation to those matters identified by the Full Bench as containing no or inadequate reasons.

PN2487

So, I'll move then again to the situation if appealable error has been found and as I said, it's still our submission that the matter should go back to Commissioner Hodder to give reasons before you determine the appeal or squash the decision for that matter. And we say that - well, we rely on the sort of reasoning in Astech in any event but we also, in this particular case, say many of the reasons are ones that involve the assessment of the credibility or reliability of witnesses or the acceptance or otherwise of witnesses.

PN2488

We submit, Commissioner Hodder is clearly the member of this Tribunal in the best position to determine those matters and my learned friend attempts to deal with that rather obvious point by saying, well, Commissioner Hodder will have forgotten everything about matters like demeanour and matters of that kind because it's so long ago. In my submission, the Commission would not accept that submission, would not accept a submission that is based on memory loss and even if it did one can't assume that in the course of hearing witnesses that the Tribunal member who hears those witnesses doesn't make notes about demeanour and matter of those kinds.

PN2489

I've never been in the position of - I probably should with that - but one would have thought a diligent member of the Tribunal would make notes for later reference about matters particularly pertinent to the credibility and reliability of witnesses. Without harping on the obvious, can I just hand up an extract from a decision of the High Court of Australia that dealt with the credibility of witnesses. It's the State Rail Authority v Earthline Constructions.

PN2490

It's reported at [1999] HCA 3; 160 ALR 588. It was actually a case where the High Court said that if there was contrary - I think this might have been canvassed in these proceedings last December - d you will recall that was a case where credibility findings were overturned as a result of there being contrary - plainly contrary documentary evidence. But on the course of doing that Kirby J at 619 sets out the true advantages in fact finding which the trial judge enjoys. That's particularly spelled out at paragraph 90:

PN2491

The fact that the judge hears the evidence in its entirety, whereas the Appellant Court is typically taken to selected passages chosen by the parties so as to advance...(reads)... expressly specified.

PN2492

And we say that those factors are applicable to this case. Can I just deal with some of the arguments that my learned friend puts, why the matter should not be sent back to Commissioner Hodder and bear in mind, my learned friend spoke about sending the whole matter back. That's not what we're suggesting, we're saying that it goes back to him to give the reasons that this Bench said was inadequate.

PN2493

My learned friend said, well you found error, you found error in Commissioner Hodder's decision and that virtually said, well that's enough. He did put stronger arguments later, but I mean the errors that were found went to inadequate reasons, that, in summary, is what the errors found were, not that he necessarily ignored the submissions the of the employer, the appellant, but that in giving his reasons he didn't give

PN2494

reasons as to why he rejected the submissions.

PN2495

My learned friend goes further, and this is really the crux of the argument, he says, well there's a reasonable apprehension of bias and he takes you to the case of Livesey. I went down to the library in the adjournment to look up the Australian Case Citator and it seems like the Commission's library has stopped getting the Australian Case Citator after 1994 because of budget cuts, but even up to 1994 there's a huge number of cases that deal with Livesey and it has been distinguished and matters of that kind over the years, but one case, and the one that I had in mind, and it is particularly pertinent in this argument was the closest because really we're talking about the same hearing, we're not talking about coming back from another case, we're talking about the same hearing.

PN2496

It is the Re-finance Sector Union of Australia ex parte Illaton and it is reported in the ALJRs, but not confident in finding that in the library in the limited time, I went to the IRs, 42 IR 352 and this was a case where Deputy President MacBean as he then was was the subject of an application that he no longer hear the matter on the basis of reasonable apprehension of bias and you will see that there was a section 111(1)(g) application that brought about that application and at the bottom of page 353 the High Court said in the last paragraph there:

PN2497

It is true that Deputy President MacBean's ...(reads)... which may depend on the same facts or some aspect of them.

PN2498

Now, the case is a fortiori here whereas the same proceeding - and all that you would be sending back to Commissioner Hodder for would be for the giving of fuller reasons and then the notion that reasonable apprehension of bias would apply to such a situation is totally fallacious. Then my learned friend went on to make some submissions about the way Commissioner Hodder conducted the case and he reminded you of some extracts that Mr West took to you in the course of the appeal where there was some criticism of the Commissioner's asking some questions on the way through.

PN2499

As my learned friend points out, there had been no findings in relation to that matter. That's not surprising. Number one, because there was no objection to those questions when they were asked by the Commissioner at first instance and number two, because they weren't' the subject of any grounds of appeal and in our submission, no findings having been made by this Bench, that's a totally irrelevant situation. As to the prolongation of proceedings, we would submit that its not necessarily - I mean, depending on what the Commission decides, the Commission as presently constituted decides, there are various variables, but the scenario that we're suggesting is that you ask for a report from the Commissioner, assuming 45(7) doesn't apply, but in any event, just ask or direct the Commissioner to give reasons on those matters on which you think the decision is inadequate and then you can decide the rest of the appeal.

PN2500

Now, on one scenario that's the quickest way of dealing with it. Certainly it doesn't - the reason my friend says it is going to be prolonged is because he is also saying you should, at this point, quash the decision and then go on to a re-determination of the matter. That seems to be the long way home. The short way home, which admittedly may require the appeal to be decided in our favour, that's got to be open of the possibilities, we say a probability, is that if you get the reasons and then consider the appeal, having got those reasons, that you will dismiss the appeal without any question of any further hearing.

PN2501

Now, there's another matter I want to raise on this question of reasons and I accept that it hasn't been raised in these proceedings today, because we're still in the process of conducting an appeal so it is open to us to raise this and it is another matter that we say would lead to the matter being sent back to Commissioner Hodder for a report, as a report that gives reasons where this Commission finds that there is inadequate reasons available in certain respects in order for this Bench to determine the appeal.

PN2502

The difference with the point we're raising here is that it is jurisdictional rather than discretionary and it arises in this way. Our submission is that a failure to give reasons or a failure to give adequate reasons, can never be appellable error and we say that because we submit there's no duty to give reasons in a reinstatement case such as this. Now, this has been the subject of some discussion and I should draw your attention to a discussion by another Full Bench of this Commission last year in the case of Britax v Rainsfords. I will hand up an internet copy of that case.

PN2503

SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Crawshaw, is it correct to analyse a conclusion in paragraph 33 as a finding that the Commissioner failed to give reasons or adequate reasons, where we said that:

PN2504

We're satisfied it is seriously arguable because he failed to make sufficient findings and failed to adequately analyse the evidence.

PN2505

Is that the same as failing to give reasons or adequate reasons?

PN2506

MR CRAWSHAW: Well in my submission it is and the same considerations would apply in any event. He failed to make sufficient findings of fact. I mean one would have to go back to the various examples, but in our submission the finding by this Bench that there was a failing to make sufficient findings of fact was, in essence, a finding that in relation to the findings made by Commissioner Hodder that he didn't give sufficient reasons going to findings of fact. I suppose one analyses, the difference between primary findings of fact and ultimate findings. The ultimate findings weren't justified, if I can use that word, by primary findings of fact.

PN2507

My learned junior rightly points out to me that if you go back to paragraph 16, the submission from the appellant that you substantially agree with in paragraph 18 is that:

PN2508

The appeal raised for consideration the ...(reads)... the evidence to the contrary.

PN2509

Now, to the extent that it could be said, well that's not strictly failure to give reasons or failure to give adequate reasons, we would suggest that is not a distinction with any substance. We would say the same considerations would apply and in particular, if there's going to be some distinction drawing with duty to give reasons and sufficient findings of fact or failing to adequately analysing the evidence, we say there is no duty to do those particular things under the Act either.

PN2510

Now, I was going to take you to the Britex decision which deals with the failure to give reasons and whether there is a duty. Paragraph 32 of the Commission in that case dealt with the Full Court decision in Edwards and Giudice and it must be accepted in that case that two of the judges thought there was a duty to give reasons, that is set out in paragraph 32, although Finklestein J, the third judge in the case, decided to the contrary.

PN2511

The interesting thing about Edwards and Giudice which was obviously a case that went to the High Court and remitted back to a Full Court of the Federal Court is that there is no mention of rule 46 of the Commission's Rules in it and it appears that that decision was decided by their Honours without the benefit of anyone drawing that to their attention, because rule 46 you will recall provides that within seven days of giving the decision in a reinstatement case a party can write to the decision maker seeking reasons. Sub rule (1) says:

PN2512

If the Commission makes a decision under ....(reads)... after the date of the decision.

PN2513

And that seems to suggest that there is not a duty to give reasons. Certainly there was no evidence of any such request in this case. The Britex decision deals with rule 46 at paragraph 36.

PN2514

SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Crawshaw do you really contend that an arbitration of this nature that extended over the period of time that it did, involving the number of witnesses that it did and the quantity of exhibit material that it did, that it was open to the Commission to merely say that I find that the terminations were harsh, unjust and unreasonable, I reinstate them and not give reasons.

PN2515

MR CRAWSHAW: I do suggest that.

PN2516

SENIOR DEPUTY PRESIDENT KAUFMAN: I find that extraordinary.

PN2517

MR CRAWSHAW: And I do it on the basis that there's no duty to give reasons found in the statute, that at common law there's no duty for an Administrative Tribunal to give reasons, the Osmond case in the High Court suggests that, so as Edwards and Giudice pointed out, there's the possibility of exceptions to that.

PN2518

SENIOR DEPUTY PRESIDENT KAUFMAN: The Tribunal, since time immemorial been told that it has to behave itself in a judicial fashion, even though its not a judicial Tribunal.

PN2519

MR CRAWSHAW: Yes, I understand all that and I understand the reasons why you put that to me, but properly analysed, and can I say with respect, this Full Bench in Britex does properly analyse the matter and in the end, at the end of paragraph 38 it says:

PN2520

In our view, a failure to give reasons for a decision of that kind may amount to an error of principle.

PN2521

So, I suppose, in the end, after analysing it, the decision is inconclusive, but it is not a straightforward question and in our submission - and I know decisions of this Commission have said there's a duty to give reasons, principally for the purpose of having an appeal heard.

PN2522

THE VICE PRESIDENT: And may be to explain to the lose why the loser lost.

PN2523

MR CRAWSHAW: Well that's another rationale that's been given, I think it is one that was mentioned in Edwards and Giudice, but putting - but that can be satisfied in a reinstatement case by rule 46 being exercised.

PN2524

THE VICE PRESIDENT: Rule 46 only arises if no reasons argue them.

PN2525

MR CRAWSHAW: Yes, well it may arise if no adequate - it is yet to be tested how far rule 46 goes. For example, if someone considers that reasons had been given, but they are inadequate, whether rule 46 could be invoked to say well, you haven't given, you haven't really given reasons, but in any event, the reason why it doesn't leave to an observed conclusion is this, that an Appeal Bench can do exactly what we are suggesting the Appeal Bench do in this case. If the Appeal Bench gets a decision and says there's no reasons or there's inadequate reasons and we can't see sufficient reasoning in this decision for us to determine whether or not there was error.

PN2526

The Appeal Bench can send it back to the Tribunal at first instance and say, in order for us to determine the appeal we require you to give reasons as to these points, or adequate reasons as to these points.

PN2527

Or adequate findings of fact or whatever else you've put in this decision. That's why it doesn't lead to an observed result because that's the power that the Appeal Bench has. So, we say there's no duty to give reasons, but that of course if the Full Bench thinks there are no or inadequate reasons to determine the appeal you can ask for a report to be provided by Commissioner Hodder pursuant to section 45 subsection 6(b).

PN2528

So, I suppose we put to you three different scenarios, all of which, we submit, lead to either a direction or report to Commissioner Hodder to furnish adequate reasons in relation to the findings raised in your decision. One is the jurisdictional position that I have put just now. Two is, if you've only found leave to appeal and not appellable error and three is if you have found appellable error it is still the appropriate course.

PN2529

Now, the other matter that has been raised is the question of quashing. We would submit, if you do what we ask and send the matter back to Commissioner Hodder to give adequate reasons, that you wouldn't quash the decision you'd await the giving of those reasons and your determination of the appeal as argued before you would quash the decision.

PN2530

That's clearly the case about jurisdictional arguments right, it is clearly the case if you've only found leave to appeal in a jurisdictional sense. We would say, even if you found appellable error, as a matter of discretion, if you want, you wouldn't quash the decision at this point in time when you are just seeking adequate reasons from the Commissioner.

PN2531

The other scenario of course is, if despite the submissions we put, you decide to determine the matter for yourselves, once again we say you shouldn't quash the decision at this point in time. If in fact you determine the matter for yourself - and my learned friend kept calling it a re-hearing, the whole thing we've embarked on is re-hearing, as the Coal and Allied decision suggests, we've been in a re-hearing since day one of these proceedings. It is really a re-determination pursuant to section 45 subsection (7)(c).

PN2532

If the Commission decides not to seek a report or direct Commissioner Hodder to do as we've suggested and hears it for itself, or directs another member of the Commission to hear the matter, any quashing of the decision should await the outcome of that hearing because it may be and we would hope it would be, under this scenario, the case, that the re-determination will come to the same result as Commissioner Hodder did, in which case, the quashing will have taken place unnecessarily. Moreover, one can't disregard the consequences of the quashing and my learned friend made it quite clear what the consequences would be.

PN2533

The consequences of the quashing would be, not on the basis of any finding of error in a finding of fact as such, but only on the basis that no adequate reasons have been given. That my client is no longer entitled to the fruits of the decision, the benefit of the decision at first instance. And the consequence of that of course, in this particular case, would be that there's no need for an application for a stay. The orders would be quashed and any payments that had taken place would stop and that shows the practical significance of what my learned friend is asking.

PN2534

I should probably also deal with his alternate submission on this question of the stay. I think with respect, my learned friend got a bit confused here. If the decision is quashed, clearly there's no need for a stay, but if the decision isn't quashed, the orders will stand and you wouldn't be talking about revoking the stay as my friend was suggesting, not if he wanted what his client wants. If the orders are quashed, in order for my clients not to be paid, putting aside the question of being actually reinstated which we canvassed earlier, but in order for them not to be paid, either for back-pay or continuing payments you would need a stay similar to the stay that has already been given.

PN2535

Do you remember a limited stay was given, my friend handed you up the decision. So, I don't want to tell my friend what his case should be, what he should be doing, but it wouldn't be a case of revoking the stay if he wanted to stop the payments.

PN2536

THE COMMISSIONER: It would be a case of extending the stay.

PN2537

MR CRAWSHAW: Yes and if there's going to be any application for extending the stay, I rather assume that's what we'd be foreshadowed today from what I was told by my learned friend Mr West last night, we asked to be further heard on that matter at an appropriate time. But my friend hasn't made that application yet, may be he will in reply, but as an alternate to quashing the decision.

PN2538

The other matter that was raised and once again we didn't have specific notice that this was going to be raised, was in any re-determination of the matter and there should be - my friend didn't put that there should be, but there may be further evidence and may be further submissions and flashed around various time estimates which, I say with respect, he plucked out of the air.

PN2539

You will recall, on this question of whether there were jobs available, at least the presiding member, you will recall that on this question of whether there were jobs available, there was uncontested evidence of the stay put on by my clients about jobs being available, so it is not just a matter of a walk up start on that.

PN2540

But what we submit, in relation to the question of further evidence and further submissions is that it is prematurely talking about that and we'd seek to be further heard on that matter, depending on what this Commission's decision is on these other matters that have been raised because if you send the matter to Commissioner Hodder to give the adequate reasons and then determine the appeal as argued, you don't necessarily get - and you don't find appellable error, you don't get into the question of a re-determination, which seems to be the context in which my learned friend's raising the question of further evidence and further submission possibly being appropriate.

PN2541

So we seek to be further heard on that matter in the light of any decision that you might make in this matter both on this question of appealable error and, indeed, on the course that you propose now take place. They are my submissions. Could I just say in relation to the last matter, chasten as I am by another experience, if the Commission doesn't find favour with the suggestion that we come back to whoever in the light of decisions on these other points - on the question of stay, further evidence or further submissions, could the Commission let me know and I'll attempt to deal with those further matters now.

PN2542

But our position is that we really need to have your decision about the various matters that have been canvassed earlier in order to properly address that question. If the Commission pleases.

PN2543

COMMISSIONER SMITH: Mr Crawshaw, would you wish to put any submission on the question I asked Mr Parry as to whether or not conciliation?

PN2544

MR CRAWSHAW: Yes, well, we're quite happy to have conciliation. We just don't want it to stop the proceedings in whatever form going ahead but certainly we're willing to talk and have conciliation at any time about that.

PN2545

COMMISSIONER SMITH: Do you have any view on what form that should take?

PN2546

MR CRAWSHAW: Well, we haven't specifically addressed it, no.

PN2547

VICE PRESIDENT McINTYRE: Thanks then, Mr Crawshaw? Mr Parry?

PN2548

MR PARRY: Your Honour, if the Commission pleases, I've made submissions with regard to the matter being sent back to Commissioner Hodder and I don't repeat those. Apart from the suggestion that there be some report prepared by the Commissioner under section 45(6), we submit that the Full Bench is in as good a position as the Commissioner to make a decision as to the matters before it. Secondly, my learned friend continues to categorise the Full Bench's decision as simply articulating inadequate reasons.

PN2549

We certainly do submit that the decision of the Full Bench goes far beyond that in paragraph 16 and 33 with references to - in paragraph 16 in particular that I've taken the Full Bench to - not conducting an arbitration properly and the various matters raised in paragraph 30 and 33 and I don't repeat those. As to the jurisdiction argument he raised about not giving reasons, if it were relevant which we say is not, in my submission there is a clear obligation on decision makers exercising judicial powers to publish reasons.

PN2550

Now, finally - and this goes to the question raised by my learned friend about the stay - if the decision is quashed, as we submit it should be given the error that has been found, then the reinstatement orders of course disappear and the payment stops. If the orders are not quashed the employees remain reinstated on pay. Now, if I wasn't clear earlier we would seek to extend the stay. We would submit that that - in those circumstances the original orders of Commissioner Hodder should be stayed.

PN2551

The traditional tests when an appeal goes forward is the strength of the case and also the balance of convenience. In my submission, we have fairly clearly established the first step, that is, that there is a strongly arguable case at the very least and in my submission, appealable error. In those circumstances, in my submission, it would be a curious and unfair position for the applicants to retain the benefit of a judgment so flawed and in those circumstances we submit that the orders, if left standing, should be stayed pending the determination of the appeal.

PN2552

If I didn't make it clear so earlier, that would be our application in the event that the orders are not quashed. If the Commission pleases.

PN2553

VICE PRESIDENT McINTYRE: Thanks, Mr Parry.

PN2554

COMMISSIONER SMITH: Certainly. I've made it clear what our attitude - foreshadowed what our attitude to such an application would be.

PN2555

VICE PRESIDENT McINTYRE: We propose to give some consideration to the matters that have been raised this morning and we will advice the parties of our views as soon as we're able to. We will adjourn on that basis.

ADJOURNED INDEFINITELY [12.02pm]