Doyles Construction Lawyers v Serratore [2002] QIRC 18 (2002) 169 QGIG 196

196 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 8 March, 2002 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 342(2) – application for leave to appeal Doyles Construction Lawyers AND Carmela Serratore (No B1652 of 2001) PRESIDENT HALL COMMISSIONER BROWN COMMISSIONER ASBURY 27 February 2002 DECISION This is an application for leave to appeal against a decision of the Queensland Industrial Relations Commission constituted otherwise than as a Full Bench which was published on 28 August 2001. (The decision is now reported at (2001) 168 QGIG 9.) Because of the complexity of the issues we heard the argument about leave and the argument about merit at the same time. In consequence the issue whether the proposed appeal was arguable and the issue whether there was sufficient doubt to justify review, were subsumed in the issue, was the decision at first instance, incorrect. Proposed grounds of appeal Five complaints are made about the decision. One, it is put that the Commission failed to consider or failed adequately to consider whether a facsimile letter sent to the appellant by the respondent’s solicitors on 12 October 2000 constituted a resignation or, in the alternative, a repudiation of the contract of employment by the respondent. Two, it is put that the Commission failed to consider or failed adequately to consider whether the respondent’s omission to execute certain documents connected with a probity audit to be carried out by the appellant or one of its clients, constituted wilful disobedience or was otherwise a sufficient failure to comply with a lawful direction, as to give the appellant the right to terminate the respondent’s contract of employment for misconduct. Linked with this complaint is a submission that the facsimile of 12 October 2000 previously referred to, when read in the light of a further facsimile from the respondent’s solicitors to the appellant later in the same day, constituted an omission that the respondent had been dismissed prior to 12 October 2000. Three, it is put that the Commission wrongfully treated observations by the respondent to a third party, which were made after the alleged dismissal on 12 October 2000 and the third party’s observations about the respondent’s emotional state at that time as corroborative of the respondent’s version of what had occurred at the appellant’s office on 12 October 2000 at or about the time of the alleged dismissal. Four, it is put that the findings of the Commission about the events which occurred between one of the partners and the appellant firm and the respondent at or about the time of the alleged dismissal on 12 October 2000 were erroneously made. It is contended that the Commission’s finding that the partner had assaulted the respondent, albeit in a minor way, and was unsafe and failed the test in Briginshaw v Briginshaw (1938) 60 CLR 338. It is further contended that the Commission erred in finding that in demanding the return of the respondent’s keys and office key card and escorting her from the premises, the partner dismissed the respondent from her employment. Five, it is put that the Commission applied the wrong principles in assessing the compensation to which the respondent was entitled in lieu of reinstatement or re-employment, and made findings in the absence of evidence that the dismissal and/or assault caused the respondent psychological stress. Grant of Leave Section 342(1) permits a person dissatisfied with the decision of the Commission constituted otherwise than as a Full Bench, by leave of the Full Bench, to appeal against the decision of the Commission. The avenue of appeal by leave is not available where the grounds advanced are: – (a) error of law, or (b) excess, or want, of jurisdiction. Section 342(2) recognises that there will be cases in which an applicant for leave pursuant to s. 342(1) will wish also to complain that the Commission erred in law or exceeded (or indeed was without) jurisdiction. The subsection allows such complaints to be dealt with at the same time as the appeal pursued consequent upon the grant of leave under s. 341(1). There is nothing in the scheme of s. 342(2) to suggest that there may be an appeal, by leave, where the only ground relied upon is either:– (a) error of law, or (b) excess, or want, of jurisdiction. Neither, in our view, may the section be read as permitting an applicant for leave to bolster an inadequate case for leave by pointing to issues about error of law and jurisdiction which, if leave be granted, will be argued at the same time. All of that is of some importance here. The “complaints” raised by the applicant referred to above as one, three and five are all complaints that the Commission erred in law. Indeed, to the extent of the complaint referred to as four above involves the complaint that the Commission erred in taking into account an observation by the respondent to the appellant’s staff in the course of being ushered out, viz “Goodbye, its been nice working with you,” the complaint involves a submission that the respondent’s observation was not part of the res gestae and was not corroborative of the respondent’s evidence that she had been dismissed. This complaint also raises an issue with error of law. The fourth complaint is taken beyond the category of error of law by the claim that the Commission erred in fact in rejecting evidence that the partner had merely asked the respondent to take annual leave, and by the issues relating to the alleged assault. Similarly, the complaint referred to above as two, which on its face alleges an error of law or of mixed fact and law, is taken beyond that category by a submission that the Commission erred in finding that the omission to comply with the request to execute the documents was not the reason for the dismissal. If leave were granted, we consider the applicant would be entitled to pursue the complaints at paragraphs two and four. (And also the various complaints about error of law.) On an appeal by leave the Full Bench of the Commission may, in an appropriate case, hear evidence afresh (s. 348(2)) and may allow the appeal and amend the decision or substitute another decision (s. 342(8)(b) and (c)). We do not regard the reference to “rehearing” at s. 348(1) as importing the restrictions in Warren v Coombs (1979) 142 CLR 531. We consider the appeal to be one in which the appellant (originally applicant for leave) is entitled to an independent judgment of the Full Bench on the law and the facts as they stand at the time of the appeal, compare Logan v Woongarra Shire Council [1983] 2 QdR 689 at 691 per G.N. Williams J with whom Matthews and Kelly JJ agreed. The limitations on the scope of s. 342 are all at the point of the decision to grant or to refuse leave. -- 1 of 2 -- 8 March, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 197 Section 342(1) and (2) are silent on the criteria to be applied and determining whether or not to grant leave. That matter is dealt with by s. 342(3) which provides:– “The Full Bench must, and may only, give leave to subsection (1) or (2) if it considers the matter is important enough, in the public interest, to give leave.”. There is no justification and no utility in seeking to enhance, to limit, or to define the test enunciated by the legislature. It is entirely appropriate to say something of the exercise of the power to grant leave. The concept of “the public interest” is of the widest import, compare Bennio v Australian Broadcasting Corporation (1995-1996) 185 CLR 183 at 193 per Brennan CJ (dissenting). There is no justification for limiting the concept in its present context. In particular, there is no justification for limiting the cases in which leave to appeal will be granted to those in which a precedent will be set. The public interest may demand that leave be granted notwithstanding that only the individuals involved in the proposed appeal are concerned: Compare Sinclair v Maryborough Mining Warden (1975) 132 CLR 437 at 487 where, in quite a different context, Jacobs J observed “it may . . . be in the public interest that the interests of an individual be not overborne”. We reject the submission that the test at s. 342 is so analogous with the test at s. 45(2) of the Workplace Relations Act 1996 (Cwth) that Commonwealth authorities are directly applicable. That test operates in the context of a statute which does not allow an appeal as of right on the grounds of error of law and excess (or want) of jurisdiction. We consider that there is scope for the balancing of interests. There is a public interest in the finality of litigation. The scarcity of re-trials on the papers and the tendency to limit appeals by way of hearing de novo to cases in which there is no “full hearing” or record of the hearing at first instance are indications that public policy does not favour second chance hearings. This Commission would do well to heed the observation of the High Court in Re Coldham and Others; ex parte Brideson [No 2] (1990) 170 CLR 270 at 275:– “This statement was made when the predecessor of s. 88F contained the word ‘review’. Nevertheless, it is equally applicable to s. 88F. Consequently, the statement of the Full Bench in Re Federated Miscellaneous Workers Union of Australia (25) that ‘the principles relating to the function of a tribunal sitting on appeal from the exercise of a discretion should be applied’ in an appeal under s. 88F cannot be accepted as a correct description of the Commission’s functions under that section. That is not to say, however, that those principles could not be brought to bear on the question whether leave to appeal should be granted under s . 88F(1), it would have been appropriate for the Commission to refuse leave unless it thought that there was an arguable case that the Registrar had acted upon a wrong principle, given weight to irrelevant matters, failed to give sufficient weight to relevant matters or made a mistake as to the facts or that the decision was plainly unreasonable or unjust. But once leave was granted, the Commission was bound to make its own decision on the evidence before it, including any further evidence admitted pursuant to s. 88F(3).”. See also Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132 at 162 per Dawson and Gaudron JJ. Finally, it should be observed that in cases about unfair dismissals, there is public interest in ensuring that the cost of the process is not out of proportion to the money value [here there was no prospect of reinstatement or re-employment] of the subject matter and ensuring that the process does not unduly enhance the inevitable advantage of the party with the deepest pockets. Conclusion All of the above is of some moment here. Resolution of the matter about which complaint is made at paragraph two depends in part upon matters of credibility. The Commission at first instance had the advantage of seeing and hearing the witnesses. No application of forensic forceps to the transcript may reproduce that advantage. It was an advantage of which the Commission took to the extent of finding that the written statement of evidence of the partner who was absent on 18 October 2000 was more reliable than his oral evidence. To the extent that the issue at which paragraph four is about whether the respondent was invited or directed to take annual leave, the issue (once again) is about credibility. Credibility is also an issue upon the allegation of assault. There is force in the submission of Counsel for the applicant that greater weight should have been given to the evidence of the “independent witness” to the assault. However, the independence of the witness was compromised by the circumstance that he was known both to the respondent and to the partner involved. On any view of the evidence there is a short period during which he lost sight of the partner and of the respondent. What this Bench is really being asked to do is review a decision of a tribunal of first instance to prefer one body of evidence over another. On neither of the issues at which the complaints of paragraphs two and four are directed was the decision of the Commission “plainly or unreasonably unjust” or, to use the phrase faded by Counsel for the applicant, “a gross breach of the ordinary principles of reasoning.”. We are not persuaded that the decisions are attended by sufficient doubt to warrant consideration by this Bench of whether it should refrain from deferring to the advantage of the tribunal which saw and heard the witnesses. In our view it is just the sort of case in which leave to appeal should be refused. Because of the way in which the matter has been dealt with we find it unnecessary to consider whether s. 342(1) and (2) authorises the grant of leave restricted to some issues and whether s. 342(1) and (2) authorises the grant of leave which restricts the nature of the appeal. We dismiss the application for leave to appeal. We reserve the question of costs. Dated this twenty-seventh day of February 2002. D.R. HALL, President. D.K. BROWN, Commissioner. I.C. ASBURY, Commissioner. Released: 27 February 2002 Appearances:– Mr G. Martin SC instructed by Hopgood and Ganim for the appellant. Ms J. Ryrie instructed by Stubbs Barbeler Grant Solicitors for the respondent. -- 2 of 2 --