Blackheath and Thornburgh College v Mr AA (No.2) [2006] ICQ 9 (2006) 181 QGIG 290

[Extract from Queensland Government Industrial Gazette, dated 3 March, 2006, Vol. 181, No. 9, pages 290-292] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(1) - appeal against decision of industrial commission Blackheath and Thornburgh College AND Mr AA (No.2) (C/2005/20) PRESIDENT HALL 22 February 2006 DECISION On 7 August 2003 Mr AA lodged an application with the Industrial Registrar seeking the remedy of reinstatement in respect of an alleged summary dismissal on or about 17 July 2003. The matter was listed for hearing in Townsville on 17 and 18 February 2005. In fact, the matter did not proceed. A material contributing factor to the abandonment of the hearing dates was the failure of Blackheath and Thornburgh College to file material for purposes of the hearing in accordance with a direction issued by the Queensland Industrial Relations Commission on 4 January 2005. The matter came before the Commission again on 17 February 2005. New hearing dates were set. The dates were 16 and 17 March 2005. On 16 March 2005, Mr AA gave evidence in support of his application. A Ms SS also gave evidence on behalf of Mr AA. On 17 March, on the application of Blackheath and Thornburgh College, and in circumstances which I shortly describe, the application for reinstatement was further adjourned until 21 July 2005. A hearing did take place on that day. Materially, a Ms BA and a Ms BB gave evidence. It is not necessary to trace the history of the taking of submissions from counsel. It is sufficient to say that by decision of 13 September 2005, the Commission ordered Mr AA's reinstatement at Blackheath and Thornburgh College and ordered the payment to him of a substantial sum of money. An appeal against that decision to this court was dismissed on 9 December 2005, see 181 QGIG 142. It was dismissed because of the failure of Blackheath and Thornburgh College to comply with Directions Orders. The matter currently before the Court arose much earlier than the appeal dismissed on 9 December 2005. It "arose" on 8 April 2005 when Blackheath and Thornburgh College filed an appeal against what was said to be interlocutory decisions and orders of the Commission in the course of the proceedings on 16 and 17 March 2005. "Arose" has been placed in quotation marks because the application to appeal was in truth out of time. Where the decision appealed against is given at a hearing, the appeal must be commenced within 21 days after the announcement of the decision at the hearing. To the extent that the application to appeal relates to a decision announced on 16 March 2005, it is two days out of time. To the extent that the application to appeal relates to orders said to have been made on 17 March 2005 it is one day out of time. There is no application to extend time. In fact, the Court has the benefit of full argument upon the merits. In those circumstances I propose to deal with the merits. I am informed by counsel for the appellant, and I accept, that the evidence of Ms BA and Ms BB was considered to be crucial to the Appellant's case at first instance. I accept also, though in the absence of evidence the Commission was not prepared to accept, that it was not until 2:30 p.m. on 15 March 2005 that the Appellant became aware that neither of the proposed witnesses would attend unless required to do so by formal process. In those circumstances, applications for the issue of appropriate attendance notices were filed with the Industrial Registrar, that very afternoon, at or about 4.13 p.m. The Industrial Registrar, who by rule 54 of the Industrial Relations (Tribunals) Rules 2000 is vested with the discretion about whether to issue an attendance notice upon request, declined to issue an attendance notice requiring the appearance of either Ms BA or Ms BB. It is in the nature of a discretion that the decision maker is allowed a measure of latitude about the decision to be made, compare Allied Operations Pty Ltd v The Australian Industrial Relations Commission (2000) 174 ALR 585 at para [19] per Gleason CA, Gaudron and Hayne JJ. As a matter of general principle, an appeal against the exercise of a discretion should be allowed only where an appellant brings the case within the principle enunciated in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.". Whilst it is true that on an appeal pursuant to s. 341(1) an appellate must demonstrate an error of law or an excess or want of jurisdiction, it seems to me that in light of the decision in Norbis v Norbis (1986)161 CLR 513 at 520 per Mason and -- 1 of 3 -- 2 Deane JJ that the reference to "a wrong principle" in House v The King, op. cit. is a reference to a binding rule rather than to a guideline which is not binding. I am content for the purposes of the present appeal to assume that an appellant who establishes an error within the principle in House v The King, op. cit., also establishes an error of law for the purposes of s. 341(1). However, in applying principle in House v The King, op. cit. to the Industrial Registrar's exercise of discretion, one must bear in mind that the discretion goes to practice and procedure rather than substance or right, compare Bloor v BP Refinery (Bulwer Island) Ltd (2001) 106 IR 327, PR904139 per Boulton J, Lacy SDP and Hoffman C at paragraph 18. Every appellant appealing against the exercise of a discretion is confronted with a strong presumption in favour of the correctness of the decision appealed from, compare Australian Coal and Shale Employees Federation and another v The Commonwealth and others (1953) 94 CLR 621 at 627 per Kitto J. An appellant attempting to demonstrate an error in the exercise of a discretion about a matter of practice and procedure confronts an even higher bar, compare State of Queensland v Phillip Alan Squires and WorkCover Queensland (2002) 170 QGIG 20 and the cases there cited. Here, nothing has been identified which would cause this Court to go behind the decision of the Industrial Registrar. The materials fall far short of demonstrating an abandonment of the discretion vested by rule 54(1) in favour of a policy of referring applications for the issue of an attendance notice to the Commission. On the materials before the court, all that one can know about the matter is that on the afternoon prior to the commencement of a hearing in Townsville, an Industrial Registrar based in Brisbane concluded that the matter of whether attendance notices should be issued might be more appropriately dealt with by the Commissioner into whose hands the matter had long since fallen. There is no suggestion that the delay made illusory the right to seek an appearance notice. Such a decision is neither unreasonable nor plainly unjust. There is nothing to indicate that for an undisclosed reason the Industrial Registrar's discretion miscarried. When the matter came before the Commission on 16 March 2005, an application for the issue of the attendance notices was made (belatedly, at or about 2.30 p.m.) to the Commission. The Commissioner into whose hands the matter had fallen took the necessary steps to cause the issue of an attendance notice to Ms BB but rejected the application for the issue of an attendance notice to Ms BA. The Commission gave a reason for the refusal of the application. The reason was that Ms BA was a young person who was to be called to give evidence about alleged indecent dealing with her by Mr AA. The Commissioner considered that it was inappropriate to issue an attendance notice at such a late stage and give such short notice to Ms BA, particularly where the delay in discovering the need for an attendance notice was not explained. I find it impossible to conclude that those matters were irrelevant considerations. In any event, as has previously been recited, the matter was adjourned and Ms BA did in fact give evidence. It seems to me that whatever might have happened if the appeal against the interlocutory decision had been brought on urgently on 16 March 2005, any deficiency has long since been cured in the progress of the proceedings. The Appellant made the application for the adjournment because the Commission had refused to issue an attendance notice to Ms BA, and because the Appellant had been unable to serve the attendance notice issued in respect of Ms BB. I accept that the decision to seek an\ adjournment was perfectly reasonable and responsible forensic. The difficulty, of course, was that costs would be thrown away. That matter was of grave concern to the Commission. Perusal of the transcript shows the Commissioner to have said: "The Commission, having considered all that, would like first and foremost to make this comment, that one of the objectives of the Commission in dealing with applications is to ensure that all matters before the Commission are conducted fairly and that each party have the opportunity to present all evidence and material supportive of their position. In this case without the evidence of Miss BA and Ms BB then the respondent would, in view of the Commission, suffer serious disadvantage. The cause of this disadvantage lies squarely at the feet of the respondent, no-one else. Nevertheless there will, in view of the Commission, remain a disadvantage. Mind you, there is - this is an organisation - and in saying that I refer to the school - that has failed to provide any witness evidence in accordance with the two previous directions orders issued by the Vice President. They have had, in the view of the Commission, little regard for the process relied upon by the Commission. Having read the affidavit of the applicant, it would be reasonable to assume that he does not sit at the higher end of the income earner scale. In fact, his affidavit in reply indicates that his gross fortnightly salary is somewhere round about $1,500, and if he - and if he was required to meet additional costs for attendance of his counsel in Townsville, including accommodation, then that would not, in my view, be reasonable nor fair. There is also, of course, the - the dragging on of the event. The applicant has now been terminated for - for somewhere in the vicinity of two and three-quarters years and - and that is a long time from the point of termination to having the matter finalised by the Commission. Still, in saying all that, I'm drawn back to the position that I stated at the outset of the comments in respect of the Commission, and that there is and always has to be a fairness and an ability of the parties in a matter to present all of the material, no matter how incompetent the organisation of their case might be. -- 2 of 3 -- 3 Bearing in mind the financial position of the applicant - and I strongly have views in respect of that - I have decided that I would only consider favourably the granting of an adjournment in this matter as requested and then the subsequent issuing of attendance notices to meet with that adjournment if - if the respondent was prepared to meet all costs thrown away in the hearing with respect of today and, in effect, that would take into account the travel and accommodation and - and the level of fees that would be remunerated to the legal representatives.". Immediately after those remarks fell from the Commissioner, there was a brief adjournment. The representatives of the parties returned. The Commissioner was informed that there was an agreement between the parties, and that the Appellant would pay the costs of the Respondent in an amount which had been agreed between the parties but which was not disclosed to the Commission. In those circumstances the Commissioner granted the adjournment and, on 8 April 2005, the Appellant launched these proceedings attacking the Commissioner's order about costs. It is unnecessary to consider what might have occurred if there had been no agreement between the parties, a refusal of the application for an adjournment and an expeditious appeal against that interlocutory decision. Those events did not occur. Neither is it necessary to consider whether an attempt to enforce the agreement about costs might have been frustrated by a submission that the agreement had been procured by the exertion of impermissible pressure by the Commission. No such attempt is before the Court and it may be doubted that the Court has any jurisdiction to entertain such an application. What is before the Court is an attempt to appeal against orders for costs made by the Commission in circumstances in which the Commission did not make any such orders. The attempt must fail. I am satisfied that the appeal must fail on the merits. In circumstances where there is not yet in truth an appeal, the proper course is simply to dismiss the application to appeal on the ground that it was lodged out of time. Lest other litigants be inadvertently misled, I should record that had the Appellant shown a good case on the merits there may have been a real debate about whether the discretion to extend time should have been exercised in favour of the Appellant. I quite accept that there is a right appeal against interlocutory decisions. I quite accept that a litigant may put that right to one side and reserve any issues about interlocutory decisions and orders until any appeal against the ultimate decision. I have difficulty with the notion that an application to appeal against an interlocutory decision may be lodged out of time, allowed to lie dormant and brought on only after the Commission has given its ultimate decision and an appeal against that decision has been dismissed. Indeed, were it not for rules 200 and 200A of the Industrial Relations (Tribunals) Rules 2000, I should have thought that there was much to be said that even applications to appeal lodged within time should not be allowed to lie dormant in that way. I dismiss the application to appeal. I reserve all questions as to costs. If need be, issues as to costs may be dealt with in writing in accordance with the schedule developed by my associate. Dated 22 February 2006. D.R. HALL, President. Released: 22 February 2006 Appearances: Mr H. Walters directly instructed for the Appellant. Mr J. Merrell instructed by Wilson, Ryan and Grose, Solicitors for the Respondent. Government Printer, Queensland The State of Queensland 2006. -- 3 of 3 --