Akins v National Australia Bank

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS, DP STAFF, J BISHOP, C 12 October 2004

M. Tabibar Rahman and Director-General of Education and Training in the State of New South Wales

Application by M. Tabibar Rahman for leave to appeal and appeal against a decision of Commissioner McKenna given on 3 June 2004 in matter no IRC 5913 of 2003 DECISION [2004] NSWIRComm 303

1 This decision arises from a notice of motion filed on 27 September 2004 in appeal proceedings lodged by Mr M. Tabibar Rahman ('the appellant') against a decision of Commissioner D McKenna, published on 18 March 2004 in IRC 5913 of 2003.

2 The substantive appeal is listed for hearing on 15 October 2004. Shortly stated, the appellant's notice of motion seeks to adduce fresh evidence in the appeal. That evidence is sought from 31 witnesses, being various officers of the Department of Education and Training ('the respondent') including the Director General, and a number of teachers employed or previously employed by the Department.

3 We note that the appellant had earlier sought to summons the 31 witnesses to give evidence in the appeal. The respondent filed a notice of motion to have all of those summonses set aside. On 24 September 2004, Staff J dealt with that notice of motion and set aside all of the summonses. The appellant subsequently filed the present notice of motion seeking to adduce fresh evidence in the appeal.

4 Section 191 of the Industrial Relations Act 1996 ('the Act') deals with the issue of further evidence on appeal and provides: (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received.

5 The principles to be applied by the Commission in admitting fresh evidence in appeal proceedings were recently considered in Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch (2003) 130 IR 284. There the Commission said at [67]-[89]: Admission of further evidence 67. The issue of further evidence on appeal is significant in these proceedings, for two reasons. First, having regard to the respondent's submissions, it would appear that there has not been a decision of the Commission on the meaning to be attributed to "special grounds", as provided in s 191(2) of the Act. Secondly, how does the admission of further evidence on appeal affect the nature of an appeal to the Full Bench of the Commission, in particular, having regard to s 191(3)? It is useful to briefly turn to the parties submissions at this point. 68. As for what may constitute "special grounds", the appellant contended that further evidence should be admitted on the appeal as it was not afforded the opportunity of being heard below - these circumstances, if for no other reason, ought fall within the meaning of "special grounds". 69. The respondent referred to King v State Bank of New South Wales (No.2) and CCH Australia Ltd v Bowen (at 210) as highlighting the "difficulties for the appellate bench" which may arise when the traditional appeal principles are to be applied to a case in which further evidence is to be admitted. From that submission, the respondent contended that it became "necessary" to determine "whether this appeal is an appropriate case for the Full Bench to receive further evidence". 70. Having referred to Big W Discount Stores v Donato (1994) 58 IR 239 at 243, Turner v Jupiters Mangement Limited (1989) 29 IR 276 at 277 (this latter decision having been adopted by the Full Bench of this Court in Bowen at 211) and Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 143 (again adopted in Bowen (at 213) and noting that Bowen itself was later approved by the Full Bench in Knowles v Anglican Church Property Trust ( No.2 ) (1999) 95 IR 380), the respondent submitted that the appellant needed to demonstrate "special grounds" that would warrant the admission of further evidence, and that for the appellant to succeed in this regard it must demonstrate "to the comfortable satisfaction of this Full Bench that the evidence sought to be adduced, if received, would result in at least the real possibility that the aspect of the primary decision to which the evidence relates would not be overturned". On the respondent's submission, the appellant had not satisfied the test established in Bowen . 71. In the alternative, the respondent contended that it was not sufficient for the Full Bench to come to the conclusion that there was a "real possibility" that a different outcome would be achieved if the evidence were admitted. On its submission, "the plain words used in s191(2) [make it] clear that the legislature intended this mechanism to be used only sparingly and in the situation of most need". 72. The term "special grounds", on the respondent's submission, had not been the subject of "authoritative pronouncement in this jurisdiction", and sought to draw parallels between the phrase "special grounds" in s191(2) and the "special case" concept: referring to Re Kellogg (Aust) Pty Ltd and Federated Millers and Mill Employees Association of A/asia (NSW Branch) (1991) 39 IR 1 and Australian Manufacturing Workers' Union v Alcoa of Australia Ltd (1996) 63 IR 138. On the respondent's submission, for a matter to be identified as a "special case" it must have "some particular or unusual feature". In the determination of what constitutes "special grounds" for further evidence on appeal, the respondent contended that an appellant "would need to show that there is some feature or circumstance that takes it out of the ordinary course. A special feature that affords for modifying or departing from the usual rule" (see Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578 - 579; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 223 and Re Australian Federation of Principals Employed in Catholic Schools (1993) 49 IR 1 at 4 and decisions from this jurisdictions including Re Ambulance Employees (State) Award (1988) 25 IR 38; Re Corrections Health Service Nurses' (State) Award (No.2) (2001) 112 IR 402 and Re Storeworkers - IGA Distribution Pty Limited (2002) 124 IR 1. 73. There was, on the respondent's submission, "nothing that is reasonably capable of satisfying the description of 'special' as it is understood in this jurisdiction such as would warrant the exercise by the Full Bench of its discretion under s191(2)". Further, on the respondent's submission, the material sought to be adduced could not reasonably be said to be relevant for an appropriate forensic purpose in this proceeding. 74. The leading authority on the admission of further evidence in this jurisdiction is the judgment of the Full Bench in CCH Australia Ltd v Bowen (1998) 79 IR 206 (noting it was adopted by the Full Bench in Knowles v Anglican Church Property Trust No.2 (1999) 95 IR 380). We also note that in Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority (NSW) (2001) 106 IR 435, the Full Bench refused to admit further evidence as it would not have "further[ed] a determination of the essential issue" on appeal: see [4] - [6]. 75. In Bowen, having been referred to decisions including Orr v Holmes (1948) 76 CLR 632 and Wollongong Corporation v Cowan (1955) 93 CLR 435, the Full Bench held (at 211):

We have a concern that the authorities in the High Court to which we were referred as to the tests to apply in considering whether to allow further evidence on appeal were all in the context of applications for a new trial. Having in mind the terms of s 191(2) of the Act, and the powers on appeal available under s 192(1) thereof, we would not wish it to be taken as our view that for further evidence to be heard on an appeal it must necessarily be of such a nature as would make it almost certain that an opposite result would have been reached if the evidence had been adduced at first instance. As Dixon J said in Orr v Holmes (at 642) - ''But the evident purpose (of the applicable tests) is to ensure that new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue'' (emphasis added). Given that each case requires consideration in light of its own particular circumstances, it seems to us only open to hold, as the Full Commission did in Donato (at 243), that the purpose of fresh evidence is to avoid ''a miscarriage of justice'' and, as Northrop J said in Turner (at 277), that the power to allow further evidence on appeal ''is exercised rarely and in exceptional circumstances only''. Our opinion is that the potential mischief if the evidence not be admitted must be sufficiently operative on the challenged decision and as would cause real prejudice to the party seeking to lead such additional evidence if it were not given. We would emphasise, however, that if the further evidence would likely lead to disputed questions of fact or involve the credibility of witnesses then ordinarily it should not be heard by the Full Bench itself but by a single member pursuant to the courses on appeal available under s 192(1), either the member who made the challenged decision or another member sitting alone depending upon the circumstances involved. 76. The Full Bench observed that the further evidence in issue in that matter was not evidence that had arisen following the determination of the first instance decision, and referred to the observations in Quade, to the effect that in circumstances where evidence had only come to light following a decision on the merits, "considerations of public interest support [the requirement that such evidence only be admitted in exceptional circumstances] in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case". That position was contrasted with the position then before the Full Bench, that is, where "the unavailability of the evidence at first instance resulted from a significant failure by the successful party", in which case: [T]he application of the general rule admitting fresh evidence if it was ''almost certain'' (see Orr v Holmes ) or ''reasonably clear'' (see Cowan ) that the opposite result would have occurred would not, particularly where the failure was deliberate or unexplained, serve either the demands of justice in the individual case or the public interest in the administration of justice generally. 77. The Full Bench then set out the observations of the High Court in Quade (at 142-143), where the Court emphasised that, in such circumstances: It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied …. The most that can be said is that the answer to that question in such a case must depend upon the appellate court's assessment of what will best serve the interests of justice, "either particularly in relation to the parties or generally in relation to the administration of justice" (cf, eg, McDonald v McDonald (1965) 113 CLR 529 at 533, 542) … [taking into account] a variety of possibly competing factors …While it is not necessary that the appellate court be persuaded in such a case that it is 'almost certain' or 'reasonably clear' that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so.' 78. As can be gleaned from the above passages in Bowen, the Full Bench was clearly not seeking to provide any exhaustive analysis of what may constitute "special grounds" for the purpose of s 191(2), but rather was emphasising that the admission of further evidence, in circumstances akin to those then before the Commission, "must depend upon the appellate court's assessment of what will best serve the interests of justice". It is instructive that the further evidence was ultimately refused. Of course, those observations were made in the context of an appeal from an unfair dismissal matter which sought to challenge the discretionary relief that had been afforded the applicant at first instance. They are markedly different from the circumstances pertaining to the present appeal.

79. We agree with the observation of the Full Bench in Bowen that the resolution of an issue relating to further evidence on appeal "must depend upon the appellate court's assessment of what will best serve the interests of justice" and that the approach to the admission of further evidence may be different, depending upon the circumstances in which the further evidence came to light.

80. Whilst there are clearly differences in the nature of the appellate scheme, particularly having regard to s 75A (5) and (6), it is useful to have regard to the way in which the Court of Appeal has approached the issue of further evidence on appeal, under s 75A of the Supreme Court Act 1970. Section 75A provides: 75A. Appeal (1) Subject to subsections (2) and (3), this section applies to an appeal to the Court and to an appeal in proceedings in the Court. ... (5) Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing. (6) The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning: (a) amendment, (b) the drawing of inferences and the making of findings of fact, and (c) the assessment of damages and other money sums. (7) The Court may receive further evidence. (8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds. (9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing. (10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires. 81. A leading authority on what may constitute "special grounds" (for the purpose of s 75A(8) is the judgment of Clarke JA in Akins v National Australia Bank (1994) 34 NSWLR 155, where his Honour stated at 160: Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need to be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.

That passage has been adopted on numerous occasions, including Nominal Defendant (NSW) v Manning (2000) 50 NSWLR 139, Textralian Enterprises Pty Ltd v Perpetual Trustees Victoria Ltd [2000] NSWCA 176, Wilson v The Prothonotary [2000] NSWCA 23, Victims Compensation Fund Corporation v Hill [2000] NSWCA 75, Centurian Constructions Pty Ltd v Beca Developments Pty Ltd [1999] NSWCA 457 at [39], Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 and has recently been applied in Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80 at [35].

We would also note the observations in Wilson v The Prothonotary [2000] NSWCA 23 at [47], where, having approved of the three pronged test in Akins , the Court of Appeal stated: The tests are general principles, or conditions applying to the generality of cases, but the statutory discretion is capable of being exercised even if the tests are not all satisfied although such an exercise might only occur in exceptional circumstances: Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140. Similar observations were made in Textralian Enterprises Pty Ltd v Perpetual Trustees Victoria Ltd at [101].

We would also note the observations of the Court of Appeal in Townsend v Townsend [2001] NSWCA 136, where, having adopted the principles in Akins, the Court stated (at [64]): These conditions are only guides, and special grounds may be made out in particular circumstances ( Commonwealth Bank v Quade (1991) 178 CLR 134 at 140), but the public interest in the finality of litigation calls for some "insistent demand of justice" ( Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 at 444).

Having regard to the submissions of the respondent, we would also refer to the observations of the Court of Appeal in Victims Compensation Fund Corporation v Hill [2000] NSWCA 75 , where, in discussing s 38(3) of the Victims Compensation Act 1996, (noting that it too referred to "special grounds" being required for further evidence on an appeal), and having stated that there was "no reason why those principles should not apply to s38(3)" the relevant principles from Akins, the Court stated: The test of "special grounds" applied by Judge Garling, as already indicated, was one taken from the decision of Judge Delaney in Hately v The Victims Compensation Fund Corporation (1 April 1999). According to the formulation in that decision "special grounds" "requires the applicant for compensation to show to the learned Member of the Tribunal information which was in terms of the words 'special grounds, out of the ordinary or not connected with a failure to act'". It would be wrong to treat this formula as an exhaustive statement of " special grounds ".

Finally, we would note that in the decision of the High Court in Quade, adopted in Bowen and relied upon by the appellant in the present case, the Court was at pains to emphasise that the observations it was there making were: … not directed to the case where the trial itself has miscarried "through misdirection, misreception of evidence, wrongful rejection of evidence or other error" or to a case of "surprise, malpractice or fraud". Such cases cannot properly be seen as mere cases of "fresh evidence".

This case does not involve any "misconduct" on behalf of the appellant. Nor do the circumstances permit a conclusion that the appellant had failed to apply "reasonable diligence" in ascertaining the evidence in the course of preparing for the proceedings below. Whilst we would, in general, agree with the three-pronged "test" in Akins (noting that these observations are consistent with the approach taken in Bowen and in particular point (2)), such observations are of little utility in the present circumstances. 88. The appellant was not afforded an opportunity to be heard in the course of proceedings below, because the trial judge had erred in respect of the operation of s 34(2)(b). The Full Bench has granted leave to appeal and determined that it ought hear from the appellant, in order to determine whether the decision to grant the application at first instance should be confirmed, quashed or varied: s 192(1)(a). It is important to emphasise our acceptance of the observations of the Full Bench in Bowen (at 211) to the effect that in the ordinary course, such circumstances would warrant the matter being remitted to the trial judge (or the member dealing with the matter at first instance) for determination. 89. However, during the course of proceedings before the Full Bench, we were informed by the parties that there were a number of applications for the approval of enterprise agreements pending before various members of the Commission in which similar issues were raised. As such, we have taken the view that it was appropriate and in the public interest that the merits of the issues surrounding the impugned clauses be determined by the Full Bench (albeit in the context of an appeal which challenged the decision at first instance to approve the enterprise agreement with respect to the relevant clauses). We observe that the parties did not demur from such a course. The circumstances that have arisen are clearly out of the ordinary. We are satisfied that, in these circumstances, there should be a full hearing before the Full Bench. It is appropriate to grant leave to bring further evidence in these appeal proceedings. We consider that for these same reasons, leave to appeal under s 188 of the Act should be granted as the matter is of significance to the general jurisprudence of the Commission in relation to enterprise agreements.

6 We would observe that the admission of fresh evidence in appeal proceedings ordinarily requires parties to meet three conditions before fresh evidence can be admitted: see Akins v National Australia Bank (1994) 34 NSWLR 155, at 160: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.

7 We would emphasise that the Commission's imperative must be to assess what will best serve the interests of justice.

8 The appellant argued that his case was not heard on its merits and the thirty one witnesses he seeks to call will assist his case in that regard. 9 It is true of course, that the Commissioner did not determine the merits of the appellant's case. However, she was not required to do so at that stage of the proceedings. The Commissioner was required to determine whether firstly, she had jurisdiction to proceed to hearing the appellant's claim, and secondly, whether in the exercise of discretion she should allow the appellant's application to be accepted out of time (s 85(3) of the Act). The first issue involves a question of fact and law. In respect of the second issue Mr Rahman conceded that none of the proposed witnesses could give evidence on this issue.

10 We are mindful of the fact that the appellant was unrepresented before the Commission and before the Full Bench. However, it is patently obvious that the appellant misunderstood what the Commissioner was required to determine. So much is evident from the reasons for this notice of motion which, among other things, include: In making the 'Decision' the Commissioner McKenna C has not looked at the case in its entirety and taken into account all the areas of law relating to my submission. As such, the decision is not the "Public Interest" for the final decision is based upon-only two thresholds derived from the case by the Commissioner McKenna C (sic).

11 It must be reiterated that the merits of the appellant's case have not, at any stage, been determined. It follows that the appeal is confined to what the Commissioner decided and not the merits of the appellant's case.

12 For this reason, we adopt the conclusion of the Full Bench in Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia (at [74]) and decline to admit further evidence "as it would not have 'further[ed] a determination of the essential issue' on appeal". It follows, in our view, that special grounds do not exist for the admission of further evidence.

13 For the reasons we have expressed, the Full Bench dismisses the appellant's notice of motion of 27 September 2004.

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