Appeal - Unfair dismissal - Principles for appeal - Failure to comply directions - Late filing of statements or use of summons for witnesses - Failure to properly exercise discretion - Principles in Spanish Club v Bounouar considered - Need to consider explanation by applicant - Need to comply with dictates of justice - Adoption of inflexible rule - Inadequacy of directions - Directions not breached - Unrepresented litigant - Obligations falling upon Member of Commission - Failure to meet that duty - No case to answer procedure undesirable unfair dismissal proceedings - Case not appropriate to no case to answer procedure in any event - Leave to appeal granted - Appeal upheld - Remitted to Commissioner for hearing - [2003] NSWIRComm 132 - NSWIRComm 1986 case summary

Judgment (60 paragraphs)

[1]

CITATION : Ramon Clarence Parkinson and Mayne Group Ltd (t/as Mayne Express) [2003] NSWIRComm 132 APPELLANT: Ramon Clarence Parkinson PARTIES : RESPONDENT: Mayne Group Ltd (t/as Mayne Express) FILE NUMBER: IRC5392 of 2002 CORAM: Walton J Vice-President; Glynn J; O'Neill C CATCHWORDS : Appeal - Unfair dismissal - Principles for appeal - Failure to comply directions - Late filing of statements or use of summons for witnesses - Failure to properly exercise discretion - Principles in Spanish Club v Bounouar considered - Need to consider explanation by applicant - Need to comply with dictates of justice - Adoption of inflexible rule - Inadequacy of directions - Directions not breached - Unrepresented litigant - Obligations falling upon Member of Commission - Failure to meet that duty - No case to answer procedure undesirable unfair dismissal proceedings - Case not appropriate to no case to answer procedure in any event - Leave to appeal granted - Appeal upheld - Remitted to Commissioner for hearing LEGISLATION CITED : Industrial Relations Act 1996 s162 Industrial Arbitration Act 1940 s31 Davidson v Aboriginal Islander Child Care Agency (1998) 105 IR 1 Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364 Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364 King v State Bank of New South Wales [2002] NSWIRComm 353 Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380 Lynch v Trustees of St Vincent's Private Hospital (1995) 11 IR 69 CASES CITED : MacPherson v The Queen (1981) 147 CLR 512 Monk v Dow Corning Australia Pty Ltd (1984) 7 IR 340 Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 Price v Box Valley Pty Ltd (1999) 90 IR 480 Rayski v Scitec Corporation (unreported, NSW Court of Criminal Appeal, 16 June 1986) The Spanish Club Limited v Bounouar (1999) 94 IR 173 Vincent v Le Cornu Furniture & Carpet Centre Pty Ltd (1996) 71 IR 227 HEARING DATES: 03/25/2003 DATE OF JUDGMENT: 05/09/2003

[2]

APPELLANT: Mr Ramon Parkinson Self represented

[3]

LEGAL REPRESENTATIVES: RESPONDENT: Mr A Moses of counsel SOLICITOR: Mr J Catanzariti Clayton Utz Lawyers

[4]

JUDGMENT: - 20 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

[5]

CORAM: Walton J, Vice-President Glynn J O'Neill C 9 May 2003 Matter No IRC5392 of 2002

[6]

RAMON CLARENCE PARKINSON V MAYNE GROUP LTD (T/AS MAYNE EXPRESS) APPLICATION BY RAMON CLARENCE PARKINSON FOR LEAVE TO APPEAL AND APPEAL AGAINST A DECISION OF COMMISSIONER CONNOR GIVEN ON 5.09.02 IN MATTER NO IRC2001/7196

[7]

Reasons for Decision of the Commission [2003] NSWIRComm 132

[8]

1 This matter concerns an application for leave to appeal and, if granted, appeal by Raymond Clarence Parkinson ("the appellant") against a decision given by Commissioner Connor on 5 September 2002.

[9]

2 The appellant had brought an application pursuant to section 84 of the Act concerning his dismissal from employment with the Mayne Group limited, trading as Mayne Nicholas Express ("the respondent"). The Commissioner dismissed that application after hearing a no case to answer submission advanced by the respondent at the close of the appellant's case. After receiving written and oral submissions from the appellant and the respondent on 25 March 2003 we made the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The matter is remitted for the hearing of the s84 application in Matter No. IRC7196 of 2001 by Commissioner O'Neill .

[10]

3 We indicated on that occasion that we would give reasons for that decision in due course. These are the reasons for our decision.

[11]

4 Whilst the appellant raised a variety of issues in the proceedings the primary issue raised by him was whether he had been denied procedural fairness by a determination to exclude evidence he had sought to bring into the proceedings. In this respect he raised the question as to whether the Commissioner had misapplied this discretion having regard to the decision in The Spanish Club Limited v Bounouar (1999) 94 IR 173. He also contended that the decision by the Commissioner that the respondent had no case to answer was, in all the circumstances of the matter, unjust.

[12]

5 Mr Moses of counsel, who appeared for the respondent, helpfully and, in our view, properly (having regard to the unrepresented status of the appellant) crystallised the issues in the proceedings as follows: (i) Did the learned Commissioner err in excluding the evidence which the Appellant sought to lead on 21 August 2002;

[13]

(ii) Did the learned Commissioner err in acceding to the Respondent's application that it had no case to answer; and (iii) Whether the Appellant, as an unrepresented litigant, was provided with the necessary assistance by the learned Commissioner in the proceedings on 21 August 2002?

[14]

6 Before turning to the resolution of those issues, it is useful to examine more closely the course of the proceedings.

[15]

7 The matter was originally listed for conciliation on 30 November 2001. Notwithstanding further mentions on 9 January 2002 and 5 February 2002, it was clear by 13 February 2002 that attempts to resolve the matter by conciliation had been unsuccessful. At a directions hearing on that day the parties were directed to provide witness statements to support their claims in arbitrated proceedings. These were to be filed and served by the applicant union by 13 March 2002 and by the respondent by 10 April 2002. The arbitration proceedings were listed for hearing on 15 and 16 May 2002 (the former hearing dates, 27 and 28 March, being vacated to allow time for the preparation of the witness statements and for responses to subpoenas). At this time the applicant was the Transport Workers' Union, New South Wales who represented the appellant.

[16]

8 The matter was again mentioned on the 20 March 2002, when, in response to the union's request, Commissioner Connor granted leave to the TWU to withdraw from the proceedings, the appellant having filed and served his own statement in support of the application one week earlier. The Commissioner also sought to confirm the hearing dates formerly listed (15 and 16 May). Though he acknowledged the appellant's "fundamental right" to "change horses mid-stream", he noted that "no lawyer likes to receive documentation done by somebody else" and that this may necessitate an extension of time and, therefore, the May dates being vacated. The Commissioner further noted the return of subpoena date on 27 March 2002 and said "since [Mr Parkinson is] speaking to [his] legal representative over the weekend that may well assist".

[17]

9 At the return of subpoenas hearing on 27 March 2002, however, the appellant confirmed he was still seeking legal assistance and, following discussion as to aspects of subpoenas filed by the appellant (and objected to by the respondents), the matter was stood over to Wednesday 15 May. The questions foreshadowed at the earlier mention, that is, going to the potential necessity for further directions as to fresh witness statements and new dates for hearing, were not pursued by the Commissioner and not taken up by Mr Parkinson.

[18]

10 In his decision Connor C says (at paragraph 2 of page 2): [T]he TWU subsequently indicated that it was no longer acting for Mr Parkinson. The matter was still to proceed into hearing on Wednesday 15 May 2002 and Thursday 16 May 2002, however, and it was the intention of the parties to rely on the witness statements already provided .

[19]

11 This is not clear from the transcript of the proceedings, which indicate a degree of uncertainty as to whether the earlier statements of evidence would be relied upon in the proceedings.

[20]

12 During the course of the discussion on 27 March 2002 as to subpoenas and technical difficulties with those filed by the appellant, the Commissioner said "there is probably no documentary material … Nevertheless, Mr Parkinson, you can call those people to give evidence by summonsing them if you wish to on the day of the hearing ..." He later added; "I can only deal with that evidence that's brought before me. If there is something like that, the only way that…people can be forced to give evidence is by way of summons. They can be summonsed to appear in the proceedings …" This was in response to the appellant indicating that although the persons he wished to call wanted to come as his witnesses they had expressed fears about being called to give evidence.

[21]

13 On 15 May 2002, the legal representative for the appellant was not ready to proceed. Mr Bowen, solicitor, appeared for Mr Parkinson, but it appears that the solicitor he had, in fact, retained was Mr Hayes. Given Mr Hayes' unavailability and earlier correspondence that he had sent to the Commission seeking additional time in order to take instructions and prepare additional evidence, new hearing dates were discussed. It should be noted that at the commencement of the hearing on 15 May the Commissioner referred at some length to the Full Bench decision in Spanish Club and also raised the issue of costs (in relation to delay). That was not a suggestion embraced by Mr Baroni, solicitor (who appeared for the respondent at first instance), at that time. In the result, a further directions hearing was listed for 19 June 2002 in order to further address the questions of programming and witness statements.

[22]

14 By 19 June 2002, the appellant was no longer represented, either by Mr Hayes or Mr Bowen. He signalled his desire to proceed unrepresented. The solicitor for the respondent then pressed an application for costs in relation to the hearing which was stood over on 15 May and sought to have the proceedings dismissed for want of prosecution. The appellant submitted that the reason for the delay was Mr Baroni's failure to comply with directions as to the filing and serving of witness statements. Mr Baroni pointed to correspondence from Mr Hayes to the Commission seeking to adjourn the 15 May listing and submitted that it was the appellant's representative's application that caused the delay, and that his client should not have to bear costs in light of the appellant's "inordinate delay". Both parties having requested (albeit at different times) that he do so, at this point the Commissioner determined to go off the record. Upon resumption, and without deciding the aforementioned applications of the respondent, the Commissioner listed the matter for hearing on Wednesday 21 August 2002. He did, however, again signal his willingness to entertain argument from the respondent "for the matter to be struck out for want of prosecution" if the matter was not ready for hearing at the new hearing date. (As it turned out, no such application was made). The Commissioner also again drew the appellant's attention to the procedural aspects of compelling evidence from witnesses by way of summons.

[23]

15 When the matter was again mentioned on 1 August 2002, the Commissioner once more directed the appellant's attention to his power to summons witnesses.

[24]

16 The matter was listed for hearing on Wednesday 21 August 2002. A series of issues arose as to the appellant adducing evidence, the resolution of which goes to the first and third issues identified by Mr Moses and the appellant's primary contention. Near the outset of the hearing, the appellant, then still unrepresented, sought leave to have the assistance at the bar table of a Mr Steven Rowan, whom he had also summonsed to attend and give evidence. This apparently signalled that Mr Rowan, although under summons, was also willingly assisting the appellant. In light of this Mr Baroni advanced the view that the appellant's 'incorrect use' of the summons would prejudice the respondent because it denied the respondent the advantage of earlier access to a witness statement, in contravention of the directions to that effect. In describing the use of the summons as 'incorrect', and presenting the argument that the summons was used strategically to avoid the obligation to provide the respondent with a witness statement, Mr Baroni seemed to assume that Mr Rowan had at all times been a willing participant in the proceedings. The appellant's only submission in relation to this was a reminder to the Commission that he had earlier given notice that he was having difficulty obtaining witness statements, on his view of it, because the witnesses feared for their jobs. After some discussion the appellant took up a suggestion by the Commissioner that if Mr Rowan's testimony was not strictly necessary Mr Rowan might play just the role of assistant to the appellant in the proceedings. In the result, the appellant did not adduce any evidence from Mr Rowan at all, but this early issue in the proceedings lay the seed for subsequent events of which the appellant complains in this appeal.

[25]

17 The appellant then sought to give evidence personally. After he was sworn, he indicated he wished to make a statement different from that filed by him in March in accordance with the Commissioner's earlier directions. It then emerged that the statement he intended to give from the witness box had been prepared in the form of an aide memoire and was not, therefore, entirely intelligible to persons other than him. In light of this the Commissioner suggested that Mr Parkinson might feel more comfortable making a statement from the witness box. However, Mr Baroni then pressed an objection to the 'new' statement on the basis of ambush, surprise and contravention of directions. The Commissioner stated: I would have to say - I know Mr Baroni hasn't necessarily mounted it as an objection, but there is a case called the Spanish Club case … where I am duty bound and obliged in cases of this nature, where there's been a direction for witness statements, to ensure that they comply and lock the parties into positions beforehand.

[26]

18 In light of this the appellant agreed to offer his 'new' statement as a form of opening statement. The Commissioner invited the appellant to take the witness stand. However, as a result of further objections put by Mr Boroni (again going to surprise) and that objection being upheld by the Commissioner (although the appellant had already been sworn and had recently been reminded by the Commissioner that he was still under oath), the appellant read his statement from the bar table and not from the witness box. Perhaps as a consequence of this (in turn arising from a series of objections and considerable discussion as to procedure), the appellant's earlier statement (filed in March) was never formally tendered. In the result, neither Mr Parkinson's earlier written statement or later 'oral statement' went in as evidence in the proceedings. It was not suggested to him that, in the event that his new statement was not treated as evidence, his earlier statement might be the only evidence available to him. This is particularly significant in the light of later rulings to which we shall come shortly.

[27]

19 In his decision, the Commissioner found (at page 3): At the hearing on Wednesday, 21 August, 2002 Mr Parkinson informed me that he wished to replace the original witness statement he had prepared with a new one. He did not wish to admit the original witness statement into evidence. Nor did he give evidence in the hearing. He made a statement from the bar table, however. Uncontested statements from the bar table may be taken to establish certain facts but they do not have the same status or force as evidence given under oath. [ Western Australian Dental Technicians and Employees' Union v Davenish Dental Laboratories (1980) AILR Rep 361].

[28]

20 In the proceedings before the Full Bench, Mr Moses of counsel, who appeared for the respondent, conceded that this statement was not entirely correct, but entreated us to focus on the fact that the statement was not admitted into evidence and that this explained the Commissioner's subsequent finding that there was no case to answer. He submitted that in light of this, the Commissioner's finding was correct. We do not agree. This aspect of the Commissioner's judgment ignores the following fundamental considerations: · The fresh witness statement was excluded by the Commission in upholding an objection; · The appellant maintained his desire to give evidence in the proceedings (up to his final submissions); · The so-called 'bar table' statement by the appellant (and ultimately the non-introduction of his earlier statement) only emerged because of this exclusion; · It is plain that the appellant, an unrepresented litigant, at this point had no real appreciation that the somewhat contorted process would effectively exclude any evidence on his own account (by the earlier statement not being admitted).

[29]

21 The next issue in the proceedings on 21 August concerned evidence of the appellant's witness, Mr Sergio Villagra. After examination-in-chief and cross-examination, Mr Baroni objected to the entirety of the witness' evidence on the basis of the decision in Spanish Club, failure by the applicant to comply with directions (in relation to witness statements) and unfair surprise. His contention was based upon evidence given by Mr Villagra in cross-examination which, Mr Baroni submitted, indicated the witness was truly giving evidence voluntarily (and, therefore, the summons was unnecessary and a statement of evidence should have been produced). Applying the same interpretation of Spanish Club earlier mentioned, the Commissioner decided that a statement from Mr Villagra should have been filed earlier and his evidence, therefore, did constitute an unfair surprise and was not admissible.

[30]

22 In cross-examination, Mr Baroni asked the following questions of, and received the following responses from Mr Villagra: Q: Mr Villagra, can I just ask you this: do you have a relationship with Mr Parkinson? A: No.

[31]

Q: Were you happy to come here and give evidence? A: Yes.

[32]

Q: You would have done so without subpoena? A: Yes, I guess so.

[33]

Q: You would have, wouldn't you? I have no further - actually, I do have one further one. You weren't there on the evening of the incident, were you? A: No.

[34]

Q: For all you know, he did it deliberately? You wouldn't know otherwise, would you? A: No, I wasn't there.

[35]

23 The question was not asked of the witness as to whether he had at all relevant times been a voluntary witness for the appellant, or whether he had at any earlier point been fearful or reluctant to give evidence. The assumption made about Mr Villagra's testimony was that he had been willing to give evidence in the proceedings at all times during the period extending from the Commissioner's directions to the date of hearing. This was similar to the earlier assumption in relation to Mr Steven Rowan's evidence.

[36]

24 Having then established that the appellant intended to call a further eight or nine witnesses under subpoena, the Commissioner said: [W]e can't defeat the purposes that I've set in place, by calling in nine witnesses on the day of the hearing who are giving evidence which is not before Mr Baroni in the first place. If the evidence of the other nine [people] you have lined up to bring in, is of a similar nature…that should have been in by way of witness statements … On that basis I am not prepared to admit similar evidence in these proceedings at this stage … People can be summonsed to give evidence. It's usually, with respect, of a brief supportive nature of the case that's already before me, but the sort of evidence that's coming in is fundamental and should have been in by way of witness statements. To that extent you can excuse all such other witnesses who would give other such evidence.

[37]

25 It is not at all clear how the Commissioner reached the conclusion that those witnesses were in the same category as Mr Villagra. Mr Moses sought to explain the Commissioner's conclusion by reference to a later exchange, which we will later discuss.

[38]

26 Upon the appellant's reference to earlier hearings in which the Commissioner had invited him to summons those witnesses who were reluctant to prepare statements or give evidence, the Commissioner pointed out that when he had so instructed the appellant he "had no idea that [Mr Parkinson] was talking about people that were fundamental to the nature of [his] case".

[39]

27 Significantly, at this stage the Commissioner suggested that one way around the problem may be for the appellant to seek to tender certain documentary evidence through the cross-examination of the respondent's witnesses.

[40]

28 The next witness the appellant called was Mr Peter Rowan. On the same basis as the prior witnesses (Mr Steven Rowan and Mr Villagra), the Commissioner decided he could not receive his evidence.

[41]

29 Thereafter the Commissioner asked the appellant if he had any further evidence. The appellant indicated he wished to adduce evidence as to faults with the forklifts and that it had been his intention to do so through a Mr Matthew Clinch, a former manager with the company, whom the appellant had subpoenaed to give evidence. Mr Clinch then gave testimony that he had required the subpoena, that is, he would not otherwise have participated in the proceedings and the Commissioner received his evidence. This brought the appellant's case to a close. Though the appellant flagged a desire to adduce further evidence from another witness, he did not formally put such a request.

[42]

30 As earlier mentioned, it remains unclear on what basis the appellant's remaining witnesses were not allowed. Mr Moses submitted to the Full Bench that an inference could be drawn that all such witnesses were in the same class as Mr Villagra and Mr Peter Rowan from the earlier discussion between the Commissioner and the appellant (as to how many more witnesses were 'like Mr Villagra') and the fact that, after Mr Peter Rowan was excused, Mr Clinch was the only witness called by the appellant, who indicated that he required compulsion to attend. There are, however, two difficulties with this explanation. Firstly, it was not open to the Commissioner to draw such an inference at the stage of the proceedings where the appellant's witnesses were released since the inference could only possibly have been drawn after the exchange with Mr Rowan and Mr Clinch. This occurred well after the Commissioner's ruling in relation to the other witnesses. Secondly, notwithstanding the earlier ruling, immediately before calling Mr Clinch the appellant called Mr Peter Rowan. This indicated that the conclusion that Mr Clinch was the sole remaining witness in the category may be unreliable.

[43]

31 Subsequently, Mr Baroni made a no case to answer submission. He pressed his claim as a special case under Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364, submitting that this was an instance in which the applicant's evidence was "palpably inadequate", therefore not only requiring no evidence to be called by the defence but no closing submissions either, although the Commissioner required him to make an election as to whether he would call any evidence in the proceedings. Understandably, in these circumstances Mr Baroni elected to not call any evidence and thereby put his no case to answer submission.

[44]

32 In the course of his reply to Mr Baroni's application the appellant still did not formally press an application for leave to adduce further evidence, although he did indicate his preparedness and eagerness to make a personal statement from the witness box. He demonstrated his earlier understanding to have been that he 'only needed to read' his statement as he had done.

[45]

33 The Commissioner concluded the proceedings with the following observation: I have some concerns in the circumstances [in relation to] Mr Parkinson, who has been somewhat energetic in his wish to have his case heard. It seems somewhat disappointing that it ends up in some sort of an anticlimactic position of this nature … based on procedural requirements which I am obliged to follow and will do so …

[46]

34 The Commissioner recognised that the effect of his decision, that is, to exclude a substantial part of the evidence relied upon by the appellant and to permit the respondent to advance a no case to answer submission, was that the appellant was confined in his case to a statement made from the bar table and the evidence of one witness called by him as to the nature of the operation of forklifts.

[47]

35 In the result, the Commissioner was able to conclude, having regard to the "onus of proof" falling on the appellant that: … the lack of evidence from Mr Parkinson's side falls so short of the purpose of supporting his claim of unfair dismissal as to make such a submission from Mr Baroni almost an inevitability. 36 We have earlier discussed the manner in which the appellant's evidence came to be excluded in the proceedings. The Commissioner's reasoning for excluding the evidence is illustrated in the following passages from his decision: In the Spanish Club Case (1999) 94 IR 173 the Full Bench of the Commission ( Wright J - President, Marks J and Bishop C) declined to grant leave for an appeal against a decision at first instance to exclude affidavits into evidence since they had not been provided in accordance with directions made without proper reasons being given for that failure. The Full Bench took the view (at p.173) that the exclusion of the affidavits was within the discretion of the member of the Commission. It would certainly be unfair in this case to Mayne Group that fundamental material in support of Mr Parkinson's claims - an amended witness statement by Mr Parkinson and evidence from the eight witnesses - come in so late. That would be no more than an ambush of Mayne Group, whether or not Mr Parkinson intended that to be the case. As Mr Baroni submitted in the proceedings, the use of a summons in that manner for witnesses who were prepared to come forward without compulsion would simply serve to defeat the directions I made. Mr Baroni was entitled to advance notice of any matters which Mr Parkinson intended to raise. That he did not get. and, I am concerned that Mr Parkinson may feel frustrated in presenting his case before me but my hands are tied by the ordinary rules of etiquette for the conduct of any court proceedings. In my opinion, the state of the proceedings before me leaves me with no alternative but to dismiss Mr Parkinson's Part 6 application and I do so. 37 As to the "no case to answer" procedure permitted by the Commissioner, the Commissioner concluded that the respondent was "entitled to advance the submission on behalf of the Mayne Group that [it] has no case to answer (Lynch v Trustees of St Vincent's Private Hospital (1995) 11 IR 69)". This conclusion was reached in the light of an earlier observation by the Commissioner that a relevant question, in determining that procedure, was whether the appellant should "also be given the opportunity to cross examine the witnesses which he had every reason to believe Mr Baroni would call". The Commissioner added "in one sense Mr Parkinson's evidentiary case would not be concluded until cross examination of Mayne Group witnesses is concluded".

[48]

Submissions 38 In this matter we do not propose to summarise the submissions made by the parties, although we have referred to various aspects of those submissions during the course of our decision. It is sufficient to say that we closely considered those submissions and note our gratitude for the helpful (and strenuously put) submissions by Mr Moses.

[49]

Leave to Appeal 39 The principles governing the determination of applications for leave to appeal are now well settled by the decision in Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. 40 We consider that the appeal in this matter satisfies the requirements for the grant of leave. Each issue formulated by Mr Moses for the appeal (earlier set out in paragraph 5 of our decision) raises questions which, in our view, warrant the grant of leave. In the first and third question, having regard to the circumstances of this case, there are raised substantial questions as to the proper administration of justice and matters going generally to the proper exercise of the Commission's discretion under s162 of the Industrial Relations Act 1996 (in the light of the decision of the Full Bench in Spanish Club). The second question raises an important question as to the jurisprudence of the Commission in unfair dismissal cases, namely, whether it is appropriate to entertain no case to answer submissions in such matters.

[50]

Consideration 41 The principles governing an appeal from a discretionary decision were recently discussed in King v State Bank of New South Wales [2002] NSWIRComm 353 at [58] - [77]. It is sufficient to note that we adopt those principles in the present matter.

[51]

42 We consider that the errors in the decision at first instance in this matter are manifest. In addition to the matters we have earlier discussed, they are as follows: 1. The Commissioner misapplied the decision of the Full Bench in Spanish Club. Contrary to that decision, the record of the proceedings and the Commissioner's decision reveal that the Commissioner felt constrained in the exercise of his discretion so as to necessarily exclude evidence which was filed late in the proceedings. Spanish Club erects no such principle. The Full Bench concluded that the first instance decision to exclude evidence filed late in that matter was a proper exercise of the discretion residing in the Commission under s162 of the Act. Further, the decision in Spanish Club makes clear that the determination to exclude evidence filed late requires at least a consideration of the explanation for the delay (which consideration did not receive attention in this matter). We note that the exercise of discretion in relation to the receipt of evidence filed late must in any event be subject to the overall dictates of justice: Sydney Legacy Fund v Kathryn Simpson [2003] NSWIRComm 91. The adoption of an inflexible rule by the Commission at first instance in this matter, in our view, constituted an error of principle and resulted in an injustice to the appellant. 2. The adoption of that inflexible rule also resulted in a failure to properly take into account factors relevant to the exercise of the discretion. The Commissioner failed to consider whether the procedures adopted earlier in the proceedings by him may have been such as to make it unclear to the appellant that the course adopted by him in the calling of evidence at the hearing was contrary to the earlier directions made. For example, the appellant did not understand, in our view, that the making of a supplementary statement infringed any earlier ruling (assuming, for present purposes, there was such an infringement). Further, having regard to the course of the proceedings, the appellant understandably proceeded on the basis that the calling of witnesses by summons met with the approval of the Commission. 3. In any event, there is real doubt that the appellant was in breach of any procedures or directions laid down by the Commissioner. There was nothing in the directions given by him to restrain the appellant from seeking to adduce some supplementary evidence (which was, in our view, the true application being made by the appellant). Nor was the summons procedure adopted by the appellant necessarily contrary to any earlier directions. Firstly, the appellant had identified that he may adopt such approach without demur from the Commissioner. Secondly, there was insufficient evidentiary basis for the Commissioner to conclude, as he did, that each of the summonsed witnesses were, at all relevant times, prepared to give evidence without compulsion. 4. Whilst the respondent was correct in submitting that any assistance provided to an unrepresented litigant is necessarily limited, a Member of the Commission hearing an unfair dismissal application involving an unrepresented litigant nevertheless is bound to ensure that that person receives a fair hearing of that application. In that respect, the member is under a duty to provide such information and advice as necessary to ensure that end: MacPherson v The Queen (1981) 147 CLR 512 at 524 (per Gibbs CJ and Wilson J), 534 (per Mason J) and 547 (per Brennan J); Rayski v Scitec Corporation (unreported, NSW Court of Criminal Appeal, 16 June 1986); Davidson v Aboriginal Islander Child Care Agency (1998) 105 IR 1 at 8 - 10 and Vincent v Le Cornu Furniture & Carpet Centre Pty Ltd (1996) 71 IR 227. 5. This requirement does not involve the Member giving the other party 'less than he is entitled to' or conferring upon the unrepresented party advantages which, if he were represented, the person would not have. Nor does it involve the Commission in compromising its independence (see Vincent at 227)). However, it does require the provision of some minimal levels of assistance having regard to the disadvantages facing an unrepresented litigant, such as the provision of information to the unrepresented party as to his rights in order that he may determine how to conduct his case (see MacPherson at 547). For example, the Commission may draw to a party's attention the relative weight which will be given bar table statements as opposed to sworn evidence (see Davidson at 8) or the need to have statements formally introduced into evidence in order for them to form part of the evidence in the proceedings. The Commissioner should have made plain to the appellant that the circumstances pertaining to the receipt of his evidence were such as to create the possibility that there would be no evidence in the proceedings on his own account because his supplementary statement was not accepted by the Commission and he had nonetheless not relied on his earlier statement. The appellant could be forgiven for not understanding the somewhat unclear procedure that accompanied the giving of his evidence and certainly could be excused for not understanding the final result of those processes would result in him having effectively little evidence in his case before the Commission. Having regard to these principles, we consider that the Commissioner failed to ensure the proceedings were fair in this matter and this factor also warrants appellate intervention.

[52]

43 We consider that the aforementioned errors constitute errors of the kind warranting appellant intervention under the principles in House v King. There were errors of principle and a failure to have regard to relevant considerations. In the result, it is appropriate that the Commission uphold the appeal.

[53]

44 There is, however, one further matter raised by the issues in these proceedings about which we propose to make some brief observations.

[54]

45 The Commissioner concluded that the respondent was "entitled" to put a 'no case to answer' submission at the close of the appellant's case upon the authority of Lynch v Trustees of St Vincent's Private Hospital. This is a mistaken view of that decision.

[55]

46 It is true that the application was dismissed at first instance in that matter following a successful 'no case to answer' submission. However, the decision in that matter concerned a limited question as to whether the application met the requirements laid down in Monk v Dow Corning Australia Pty Ltd (1984) 7 IR 340, namely, that it possessed special or unusual qualities (we note that the application at first instance in Lynch was brought by an individual applicant pursuant to s31(b) of the Industrial Arbitration Act 1940). As to general procedures in unfair dismissal matters (although at the time the Commission's jurisdiction, save for the principle in Monk, related only to applications brought by industrial unions), the Full Bench observed (at 70): We nevertheless are constrained to say, having had the benefit of full argument, that, even had leave to appeal been granted, we would have been disinclined to differ from his Honour's view that a case of special or unusual circumstances, as referred to in Monk's case, had not been made out by the applicant. We also make the comment that, while his Honour saw fit to entertain a submission of no case to answer at the conclusion of the applicant's case having regard to the application having arisen under s31(b), we would not see such a course as being desirable in ordinary cases of reinstatement instituted by industrial unions of employees on behalf of members affected.

[56]

47 The respondent submitted that the decision of the Full Bench in Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364 was support for the notion that the applicant was 'entitled' to bring such an application at the close of the appellant's case (subject to an election being made as to the calling of evidence). We can find no support for that proposition in Davis which dealt with a 'no case to answer' submission advanced in proceedings under ss210 and 213 of the Act and the principles generally governing 'no case to answer' procedures (in particular, whether they may be brought prior to the trial and the close of the applicant's evidentiary case).

[57]

48 Here, and noting the errors in the decision at first instance to which we have earlier referred, there was a very substantial basis for the Commissioner not adopting a no case to answer procedure or ultimately granting such an application. In our view, there was sufficient demonstrated in the appellant's case to raise a real doubt about the appropriateness of that procedure. What had been alleged against the appellant was that he had driven a forklift in a manner intended to injure a fellow worker. It was contended by the respondent that this was a deliberate act which constituted misconduct. The appellant had, even on the limited case he was allowed to bring, raised some doubt as to that allegation by his contentions that the incident giving rise to his dismissal was no more than an accident and that his dismissal was in reality associated with his role as a delegate of the TWU. There was in fact some evidence in the proceedings from the appellant to support some aspects of these contentions as he made his statement from the 'bar table' under oath. Further, whilst the onus of making the application for relief in unfair dismissal proceedings fell upon the applicant, it is well established that, in order to make out a case for misconduct, the legal burden in an evidentiary sense fell to the respondent: Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at 83 - 84. We also note that in the material before us there was some material in the respondent's case which appeared to affirm the appellant's contention that the incident concerning his operation of the forklift was more in the nature of an accident or mistake than a deliberate malicious act.

[58]

49 All of this points, in our view, to the observations made in Lynch v Trustees of St Vincent's Private Hospital being applicable to these unfair dismissal proceedings (and perhaps unfair dismissal proceedings generally) under this Act.

[59]

50 Unfortunately, given the state of the first instance proceedings, we are unable to determine for ourselves the application brought under s84 of the Act (which would be the normal procedure in appeals of this kind, see Price v Box Valley Pty Ltd (1999) 90 IR 480 at 485). In the result, we have determined to remit the matter for hearing. We confirm the orders made by us on 25 March 2003.

[60]

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