Allan John Veney and New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union [2007] NSWIRComm 1079

LEGISLATION CITED: Industrial Relations Act 1996

Australasian Meat Industry Employees' Union (WA Branch) Ex parte Ferguson Toohey J 67 ALR 491 Bruce Alan Marshal and Proteus Solutions Pty Limited (in liquidation) and another by Schmidt J.IRC 1831/2002. CASES CITED: Smith and New South Wales Bar Association (1992) 176 CLR 256 Urban Transport Authority of New South Wales and Newiser (1991) 28 NSWLR 471 Daniel and Western Australia and others before Nicholson J. 208 ALR 51

Ms K Nomchong of Counsel LEGAL REPRESENTATIVES: Mr P Moorhouse of Counsel, briefed by Ms J King of Harmers Lawyers

DECISION: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

15th October, 2007 Date issued: 19th October, 2007.

Allan John Veney and New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union

Application by Allan John Veney re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 At the hearing of this interlocutory application on 15th October, 2007, the applicant in this Notice of Motion filed with the Industrial Registrar on the 10th October, 2007 was represented by Ms K Nomchong of Counsel, briefed by Mr M J Barnes of White Barnes Solicitors.

2 The respondent on the Motion was represented by Mr P Moorhouse of Counsel, briefed by Ms J King of Harmers Lawyers.

3 The background to this application is set out by Mr Barnes in his affidavit to the Commission which accompanied the Notice of Motion and concerns a desire to bring additional evidence in respect to the substantive matter shown above, not known to the Commission or the applicant on the Notice (i.e. respondent in the substantive matter) at the time the Commission reserved on 31st July to make its decision.

4 The notice of motion had as its complete grounds and reasons the following: 1. The matter is still properly before the Commission. 2. Justice as between the parties. 3. Additional relevant evidence has come to light in respect of the relief sought by the Applicant. 4. Such evidence/documents were not available when the evidence closed and/or when submissions were made on 31 July 2007. 5. Such other grounds and reasons as may be submitted or determined by the Commission.

5 In that affidavit, Mr Barnes set out the background to the lodgement of the Notice of Motion and began with the fact that the applicant, Mr Veney, wrote to the union on 19 September 2007. It is not necessary for me to read that letter in these proceedings. He also attached a summons for relief under section 106 of the Industrial Relations Act of 1996 for Unfair Contract. This was shown to have been filed on 18 September 2007, which is precisely 12 months from the date of his dismissal on 18 September 2006. They were marked Attachment A to Mr Barnes' affidavit.

6 At Attachment B to his affidavit was a copy of a letter dated 2nd October to the Commission (copied to Harmers Lawyers - for Mr Veney), which had attached to it, the summons for relief by Mr Veney filed on 18 September in the section 106 application and also a letter written by Mr Veney accompanying his section 106 application, showing grounds for that particular application.

7 Again by way of background, Harmers Workplace Lawyers then sent a letter dated 5th October on behalf of Mr Veney to White Barnes Solicitors, protesting against the action in supplying to the Commission on 2 October a copy of Mr Veney's summons and particulars for the Section 106 Application.

8 Upon receiving the correspondence from White Barnes on the 2nd October, attaching Mr Veney's Section 106 Application, I caused a letter to be sent to both parties through my Assistant, which, amongst other things, commented that I had only a peripheral viewing of the correspondence sent to me, although noticing some of the contents of the Section 106 Application and simply that the material prepared in support by Mr Veney made reference to superannuation. Having realised, at that early viewing, the thrust of the material copied to me, I ceased reading the documents and asked my Assistant to place them in an enclosed envelope away from my Chambers.

9 Having thence received Harmers' complaint on 5th October, my treatment of the earlier material was conveyed in a letter to the parties dated the 9th October, 2007 under my Assistant's signature, to assist their consideration of the situation.

10 I believe it was the contents of that reply by me which resulted in the filing of the Notice of Motion from the union's solicitors, White Barnes, amongst other things, indicating that their action in filing a Notice of Motion was taken, upon the realisation that it was the proper process for the information previously supplied on the 2nd October to be bought to the Commission's attention.

11 In the submissions here today, Ms Nomchong emphasised firstly that the additional matters brought to attention through Mr Barnes' affidavit, which enclosed the grounds and reasons prepared by Mr Veney for the section 106 application, contained very relevant information to the Commission's determination in the substantive matter, Number IRC 06/3135. She commented that it was relevant that Mr Veney had only filed his application at the close of the 12 month period allowed for lodgement of the Section 106 Application.

12 She asked the Commission to accept that Mr Veney knew that he could have filed much earlier and in the process alerted the respondent to the matters contained therein, which were matters which could have been included in the hearing of the substantive matter which closed with final submissions on 31 July. As to the new pleadings contained within the Section 106 Application, the applicant had chosen to keep those to himself and were not available to the respondent to comment upon during the section 84 proceedings.

13 She asked the Commission to accept the additional evidence contained in these documents of Mr Veney, filed with Mr Barnes' Notice of Motion, on the basis, firstly that it would be, particularly relevant to the practicality of reinstatement. They would also go to the credit of the applicant, which in itself relates to practicality.

14 More specifically, the evidence might expose the alleged bona fide apologies that the applicant offered, she said. 15 A further matter for credit and relevance was, according to Ms Nomchong, that the new evidence, contained within the Section 106 Application by Mr Veney is misleading in that the grounds and reasons fail to comment upon the disciplinary process, which was a major feature of the Section 84 proceedings. This was similar to the alleged failure of the applicant to comment in his original affidavit (Exhibit 1) before this Commission in the Section 84 Application upon the disciplinary process.

16 It also goes then to the genuineness of the commitment of the applicant to be able to work properly with the Executive and officers of the union if he were reinstated. She felt that what she described as the accusation of a sham redundancy in the S106 papers was one that was particularly relevant and that ought to be now brought to the Commission's attention.

17 She dealt with then the legal rules in respect of the admission of new evidence, beginning with the fact the NSW Industrial Relations Act of 1996 does not require this Commission to be strictly bound by the rules of evidence, but may inform itself as appropriate. She dealt with the Interest of Justice test, saying that the matters now raised could have been dealt with earlier but were not, and therefore the respondent ought to have an opportunity to now respond.

18 A further aspect was that, in her reading of the situation, the applicant was not prejudiced because he knew the grounds and reasons when he filed this substantive matter of IRC 3135 of 2006, and indicates that he was previously aware of the grounds and reasons now relied upon, but which did not appear to any great extent in the Section 84 Application.

19 She sought orders for leave to be granted for re-opening of the case and to admit further written submissions from the respondent and that the applicant to the Notice of Motion be given an opportunity to respond, likewise in writing.

20 In his submissions in reply, Mr Moorhouse opposed the application generally, that is, the re-opening of the case.

21 He believed the applicant was prejudiced, particularly in respect of the Commission being asked to draw inferences in the absence of proper evidence being brought.

22 He then alluded to several relevant authorities in this area, beginning with the decision of the Federal Court of Australia by Toohey J in Australian Meat Industry Employees' Union, Western Australian Branch ex parte Ferguson. He quoted from page 493 of that decision at line 45 where it was said by his Honour that in situations where a hearing has concluded, but judgment has been reserved and not delivered, it has been said that fresh evidence should be admitted only when it is so material that the interests of the parties require it, the evidence, if believed, would most probably affect the result, the evidence could not by reasonable diligence have been discovered before and perhaps that no prejudice would ensue to the other party by reason of the introduction of the evidence so late. I will not quote the further references there for the purpose of brevity.

23 Mr Moorhouse took me then to a decision of her Honour, Justice Schmidt, in Marshall v Proteus Solutions Pty Limited (in liquidation) and another, in matter number 1831 of 2002. First referring to paragraph 8 of that decision of her Honour where she said, "The respondent's case was that there was a public interest in maintaining the finality of litigation (Smith v New South Wales Bar Association). The exercise of the discretion to permit a re-opening was dealt with in Urban Transport Authority of New South Wales v Newiser. The primary purpose for the rules pursuant to which a case is contested in this state is the furtherance of the interests of justice. For this reason the exercise of the discretion to allow an application to re-open depends essentially upon the trial judge's view as to whether the interests of justice are served better by granting than refusing the application. Of course there needs to be finality of litigation and a limit upon the number of issues which it is open to the parties to contest at a hearing."

24 At paragraph 25 her Honour quoted the decision of the High Court in Smith v New South Wales Bar Association, where it was said, "If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant at that stage to inquire why the evidence was not called for a hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply, depending on whether the case is simply one in which the hearing is complete or one which the reasons for judgment have been delivered. It is difficult to see why in the former situation the primary consideration should not be that of embarrassment or prejudice to the other side."

25 Finally, the decision of Daniel v Western Australia and others, in the Federal Court, by his Honour, Justice Nicholson. At paragraph 66 there is a quote referred to me by Mr Moorhouse: "From the first that applicant's objection is taken to be inclusion of evidence of additional freeholds and roads said to have been omitted from the papers before the Court at the hearing. For the first respondents, leave is sought to re-open their case to contend a lease referred to in the April affidavit wholly extinguished native title in area 416. The guiding principle in deciding whether to give leave to re-open is whether or not the interests of justice are served by allowing or refusing leave. In general, new evidence may be admitted where A, the evidence is so material that the interests of justice require it. In this case the evidence relates to the possible extinguishment of native title in the area of question. B, the evidence if accepted would most certainly affect the result. C, the evidence could not have been with reasonable diligence previously discovered."

26 He goes on to say, "The factors include: A, there is no demonstrated prejudice to the applicants in the Court proceeding with further evidence. The first respondents are not raising any new issues, but rather raising further areas to which the existing decision of the Court will be applied. B, the public interests and the finality of litigation will be served by the Court receiving this further evidence." He goes on to say, "Because otherwise the determination will be incorrect and consequently it will need to be corrected by a variation application under the NTA". Native Title Act.

27 Mr Moorhouse then urged the Commission to find that there was no inferences to be drawn of the ilk suggested by Ms Nomchong and certainly not in respect of the timing of the Section 106 Application, it was simply the last day for filing. The applicant was entitled to lodge that as part of genuine litigation and lodge it in that timing. He referred to the fact that there would be further substantial costs for the parties and asked the Commission then to view those other factors mentioned in the authorities alluded to.

28 Ms Nomchong replied to that on the basis that she believed that the Section 106 Application in its opening gambit where it says that the section 106 would be abandoned if the decision of the Commission, as currently constituted reinstated him, was in fact a threat. On further questioning from the Commission on that point, she suggested that the union might be moved by that threat to reinstate Mr Veney as a preferred course of action to the expense of resisting the section 106 application. She again alluded to the interests of justice and the matters referred to in the case law referred by Mr Moorhouse. She emphasised the probative value involved in the material put forward and that it ought to be allowed to be pursued in defence. She strongly submitted again that there was no prejudice to the applicant because he knew the type of evidence that he himself has now come forward with.

29 She dealt with the issue of the alleged sham - to use the phrase that she adopted - in respect to the redundancy claims in the Section 106 grounds and urged the Commission to allow those matters to be covered by the respondent. She again emphasised the issues that arise from this application going to the applicant's credit in respect of the alleged apologies and the impracticality of reinstating, the implication to be drawn by the emphasis in his new litigation.

30 Mr Moorhouse dealt with the lack of inclusion in the Section 106 Application of the disciplinary process exposed in the S84 proceedings and other matters, on the basis that it was a different type of litigation, with different remedies sought and required a different accent, again emphasising that it was up to the applicant to be able to wait until the very last day before filing.

CONSIDERATION 31 The primary matters the Commission is required to deal with now in respect of this matter were related to whether or not it was in the interests of justice to allow the new evidence, and whether or not there was prejudice to the applicant in allowing it or prejudice to the respondent for that matter in not allowing it, and whether it is likely to affect the result. Another key aspect arising from those was whether or not the inference that the applicant might wish the Commission to draw from the so-called sham redundancy, which Ms Nomchong thought needs to be flagged in the interests of findings of credit and practicality of reinstatement.

32 I have earlier quoted the statements from her Honour, Justice Schmidt in Marshall v Proteus in respect of the key issue of the primary test of the Interests of Justice. I have to consider that question in respect to the other broad issue of the cost to the parties in allowing this additional evidence in, along with the additional time involved to finality.

33 It is my view that it would almost certainly necessitate more than the provision of written submissions as suggested by Ms Nomchong. At least there would be a distinct risk if the parties did not bring oral evidence in support of the key issue now involved in the Section 106 Application of the alleged sham redundancy. If that happens, I believe there will be substantial time and costs and perhaps more importantly, and given that there was very little reference to such a concept at the hearing of the substantive matter, if this new evidence is not introduced, there will not be significant prejudice to the respondent to the substantive matter (the union) in not considering such a further argument against it now. Although it might be denied the chance to expose Mr Veney on credit.

34 It goes without saying that the Applicant in the Notice ought not be allowed to bring evidence of the sham redundancy at this late stage, and he does not seek to, but the effect of the Notice of Motion and the affidavit of Mr Barnes would be to bring forward an issue not properly aired in the proceedings, which could be adverse to the party seeking its airing. Accordingly, if the matter does not surface at this point, there is no direct prejudice to the respondent, and the applicant should be precluded from bringing that argument which was not raised in the Section 84 Application, especially when it opposes the Notice of Motion anyway.

35 Accordingly, I do not believe the evidence, if it was brought in the manner of written submissions as suggested by Ms Nomchong, could affect the result. The only way that could happen is if oral evidence on the issue was aired to a much larger extent and in a thorough fashion.

36 I have no difficulty with the fact the applicant waited the full 12 months before filing the Section 106 Application. There are all sorts of reasons which spring to mind for his timing, but which do not really need to be canvassed here as to why someone might not lodge earlier than the last day allowed for.

37 I accept Mr Moorhouse's argument that the S106 Application required a different accent in many respects. I have already dealt with the question of the effect of not re-opening on the question of redundancy. And there are some additional matters which go to public interest, but also related to the Interest of Justice - as I raised with the parties here today - practice note 17 to my mind makes very clear in practical terms the desire for the Commission to be efficient in its handling of cases. Given my concern that this matter would more than likely have to be opened up most probably with extensive oral evidence, I believe it would go against the intentions of practice note 17. I am also conscious of course of the statements made by the Chief Justice of New South Wales which I commented very generally about during submissions, where His Honour has attempted to bring the issue of the efficient running of cases to the attention of tribunals and courts, but having regard to the overlying legal principles involved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.