Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120
Walker Corporation Pty Limited v Sydney harbour Foreshore Authority [2009] NSECA 178
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Catchwords
Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120
Walker Corporation Pty Limited v Sydney harbour Foreshore Authority [2009] NSECA 178
Judgment (5 paragraphs)
[1]
Solicitors:
Marsdens Law Group (Applicant)
Legal Services Branch, Department of Family and Community Services NSW (Respondent)
File Number(s): IRC 531 of 2014 | 2016/00067158
[2]
Judgment
On 23 March 2015 I made orders dismissing the application presently before the Commission. I did so upon hearing an application by the respondent which can for the purposes of this decision be characterised as a 'strike-out' application.
That decision was the subject of an appeal by the applicant expressly framed under s.197B of the Industrial Relations Act 1996. ('the Act') That is, the appeal was expressly advanced as an appeal on a matter of law.
In decisions dated 10 February 2016 (Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1 and then 1 March 2016, (Beavan v Industrial Relations Secretary (No 2) [2016] NSWIC 3 the Industrial Court of New South Wales upheld the appeal on the basis that the original decision proceeded on an error of law.
On 1 March 2016 the Court made Orders that, relevantly, the original Order that the application be dismissed be quashed, and that 'the matter' be remitted to the Commission as presently constituted 'for determination in accordance with the decision of the Court in Beavan (No 1)'.
No other orders or directions relevant to this decision were made by the Court.
It is abundantly clear that the Court's decision giving rise to the remitter was that the decision at first instance contained an error of law, and that it was this error of law, nothing else, which required that the appeal be upheld and the matter remitted: Beavan (No 1) at [169]. There was no suggestion of any failing in the assessment of evidence; indeed, the applicant initially applied to bring fresh evidence in the appeal proceedings, and then abandoned that application: Beavan (No 1) at [19].
[3]
Applications to bring fresh evidence on remitter
In a directions hearing on 10 March 2016 counsel for the applicant made an application to bring certain fresh evidence on remitter. That evidence was said from the bar table to be medical evidence which, as counsel for the applicant conceded, would have been available on the initial hearing but was not brought.
No evidence was adduced in support of that application; in particular, no evidence was adduced as to why the evidence now sought to be brought was not brought at the time of the first hearing of the strike-out application. I note that the applicant was represented by learned counsel (although not counsel now appearing) in the strike-out hearing, instructed by the same solicitors that presently instruct for the applicant.
I refused that application to bring fresh evidence in the remitted proceedings in the course of the directions hearing.
Counsel for the applicant then indicated that he wished to cross-examine the solicitor who had filed an affidavit in the strike-out proceedings. Counsel for the respondent indicated that if that were to be done, she sought to cross-examine the applicant.
Although counsel did not characterise them as such, both these applications are also necessarily applications to bring fresh evidence in the remitted proceedings. Cross-examination is the eliciting of evidence. Neither the respondent's solicitor nor the applicant were cross-examined in the initial strike-out hearing, so any evidence drawn from them would be fresh evidence.
A party seeking leave to admit fresh evidence on remitter must make an application to do so: Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120.
Again, in support of these applications no evidence was adduced pointing to any reason that fresh evidence was now sought to be introduced. Indeed, no reason was given for it save by the applicant's counsel asserting that he wished to 'test' the evidence. The respondent's application appeared to be a knee-jerk response to the applicant's application; no reason of any kind was advanced for it.
I reserved my decision on these two applications.
I have determined to refuse both the applications to bring fresh evidence by cross-examination. For want of any doubt, I refuse all the applications made to me in the proceedings on 10 March 2016 for leave to introduce fresh evidence. I append the following short reasons.
No directions were given by the Court about the putting on of fresh evidence, in my view entirely understandably in circumstances where the whole of the appeal decision turned on the detection of an error of law.
There is no right in a party to put on fresh evidence on remitter.
However, I accept that even without an order from the Court, the Commission has a power on remitter to grant leave to adduce fresh evidence: Toll Transport Pty Ltd & Anor v Transport Workers' Union of New South Wales [2010] NSWIRComm 58; Walker Corporation Pty Limited v Sydney harbour Foreshore Authority [2009] NSECA 178; (2009) 168 LGERA 1, and I proceed to refuse that leave, with those authorities in mind, on the following bases.
First, the matter has been remitted to the Commission for re-determination on a point of law, viz: the application of the legal tests appropriate to such a strike-out application. No question of evidence was raised on appeal. That is, the need for the remitter is based solely on the requirement properly to apply the law to whatever evidence there was.
That is entirely consistent with the nature of the appeal brought by the applicant, which was, as noted above, an appeal on a question of law pursuant to s.197B.
The matter was expressly not remitted for the conduct of a retrial. It was remitted to be determined on the correct application of the law. I queried, in the directions hearing, whether I was to hear the matter de novo. It is clear to me that while I am of course to determine the matter afresh with a clear mind, I am not to conduct a retrial of the matter, but rather determine it according to law.
Second, and fundamentally, no basis was advanced that would in any way justify a grant of leave. In circumstances where the same solicitors have represented the applicant throughout, an assertion from the bar table, without more, that there is a desire to bring further medical evidence which could have been brought before but was not, does not at all justify the grant of leave to bring that evidence. That application was refused in an ex tempore decision on 10 March, but I confirm that ruling here.
The applicant's application to bring fresh evidence by cross-examination of the respondent's solicitor was unsupported by even a submission, let alone an affidavit or other evidence, about what evidence in particular was sought to be elicited, what its relevance might be to a remitter on a point of law, and why that evidence was not sought to be elicited in the first strike-out hearing, when the applicant was represented by counsel and solicitors. A failure to lead any evidence at all about why the evidence now sought to be adduced was not advanced in the earlier proceedings is properly seen as fatal to an application to advance fresh evidence on remitter: McCarthy v McIntyre [2000] FCA 1250 at [33].
That reasoning applies with equal force to the respondent's application to bring fresh evidence by cross-examination. The respondent was also represented by counsel and solicitors in the initial strike-out hearing. It elected not to seek evidence from the applicant then.
I have determined the applications on the bases set out above. I am fortified in my decision, however, by the provisions of the Act at s.162(2)(a) and the provisions of the Civil Procedure Act 2005 at s.56, so far as they go respectively to the obligation to act as quickly as practicable, and to have regard to the overriding principle of facilitating the just, quick and cheap resolution of the real issues in the proceedings.
[4]
Orders and directions
The Orders and directions I make in this matter are as follows:
1. The applicant's applications to bring fresh evidence on remitter are refused.
2. The respondent's application to bring fresh evidence on remitter is refused.
3. The respondent's application contained within its Notice of Motion of 18 March 2015 is set down before me for argument at 10:00 am on 7 April 2016.
4. The respondent is to file and serve an outline of submissions by 23 March 2016.
5. The applicant is to file and serve an outline of submissions by 1 April 2016.
PETER NEWALL
Commissioner
[5]
Amendments
15 March 2016 - Paragragh 1 - "Repondent" amended to read "respondent".
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Decision last updated: 15 March 2016