Byrne v Rail Corporation of NSW

JUDGMENT 1In this matter, Kevin Michael Byrne ("the appellant") applies for leave to appeal and appeal against the decision of Ritchie C in Byrne v RailCorp [2012] NSWTAB 6 dismissing his appeal against the decision of the Rail Corporation of New South Wales ("the respondent" or "RailCorp") to terminate his employment. The application for leave to appeal and appeal ("the application") was lodged pursuant to s 23A of the Transport Appeal Boards Act 1980 ("the Act").

Background 2The appellant had been employed at RailCorp since 1976. During his employment, the appellant worked as a train driver until becoming a train guard in 2010. His employment was terminated with effect from 15 July 2011. 3In late July 2010, the respondent commenced a disciplinary investigation into allegations the appellant had committed breaches of the "RailCorp Code of Conduct" and the procedures set out in the respondent's "Dignity and Respect in the Workplace Procedure". The investigation was the result of a complaint made by another employee of the respondent, Lee Kemp, in relation to the alleged conduct of the appellant during two incidents which took place on 10 July 2010. The first incident occurred at Hornsby train station and the second later on that day inside the driver's cabin of the train Mr Kemp was driving. 4The appellant was informed of the investigation by letter dated 27 July 2010. The letter contained the particulars of two allegations against him in relation to the two incidents complained of by Mr Kemp. The first allegation was in the following terms: Allegation 1 It is alleged that you breached the RailCorp Code of Conduct and/or the RailCorp Dignity and Respect in the Workplace Procedure by subjecting Lee Kemp to inappropriate behaviour. 5The particulars of the first allegation were as follows: a) On 10 July 2010 you were rostered to perform duties as train guard between the hours of 15:57 and 23:55; b) About 16:00hrs you approached Lee Kemp, train driver, on Platform One, Hornsby Station and told him that he looked good in his uniform and looked like a police officer; c) You then stood beside Mr Kemp and made a "NAZI" style salute and used the words "Heil Hitler"; d) You then stepped behind Mr Kemp and with your fingers traced the letters "SS" on his back; e) This behaviour was neither invited nor wanted by Mr Kemp. 6The second allegation was in the following terms: Allegation 2 It is alleged that you breached the RailCorp Code of Conduct and/or the RailCorp Dignity and Respect in the Workplace Procedure by subjecting Lee Kemp to sexual harassment and/or inappropriate behaviour. 7The particulars of the second allegation were as follows: (a) On 10 July 2010 you were rostered to perform duties as train guard between the hours of 15:57 and 23:55. About 16:40hrs at the Hornsby Station you joined a service as a guard. This service was being driven by Lee Kemp; (b) Upon that service arriving at the Chatswood turnback, you followed Mr Kemp to the forward driver's compartment; (c) At the driver's compartment you took hold of Mr Kemp's hair and twirled it between your fingers and said to him "don't tell anyone will you"; (d) You then placed your hands on Mr Kemp and rubbed his shoulders and back; (e) Whilst engaging in this behaviour you asked Mr Kemp "Are you gay or bisexual?" and made the comments, "I can still cum twice a day even at my age". "All men would have bisexual tendencies, you can't say that if a guy saw another guy on the street he wouldn't think to himself that he is good looking", (f) You then commenced to rub Mr Kemp's arm upon which he said to you "Don't". You continued to rub his arm and replied "Oh it's ok, people should love and respect each other.", (g) Whilst rubbing Mr Kemp's arm you said "Women say that I'm good with my tongue and men say I'm great with my mouth." (h) You then put your hand down into Mr Kemp's pants underneath the beltline at the back of his trousers; (i) This behaviour was neither invited nor wanted by Mr Kemp. 8An investigation report was prepared by Michael Crimmins, an Investigator with the respondent's Investigations Unit, in May 2011. The report found that the particulars of the first allegation had been substantiated. With respect to the second allegation, the report found that the allegation that the appellant had subjected Mr Kemp to sexual harassment had not been substantiated. However, it was found that the appellant had subjected Mr Kemp to inappropriate behaviour. Accordingly, the report concluded that the particulars of the second allegation had been substantiated on the basis of inappropriate behaviour. 9The appellant was subsequently dismissed by letter dated 13 July 2011, with the dismissal taking effect from 15 July 2011. The letter of dismissal contained a replication of the original allegations and particulars contained in the letter sent to the appellant on 27 July 2010 notifying him of the investigation (set out above), including the reference to sexual harassment in the second allegation. 10The letter of dismissal also informed that the appellant's file with the respondent would be marked as not suitable for re-hire in any capacity, and that he would be paid five weeks' salary in lieu of notice.

Nature of Proceedings before the Transport Appeal Board 11Following his dismissal, the appellant appealed to the Transport Appeal Board ("the TAB"). The matter came before Ritchie C (being a delegate of the President pursuant to s 5 of the Act) and was heard over two days on 21 and 22 February 2012. Given that the appellant appealed against the decision of RailCorp to dismiss him, the proceedings before the TAB constituted, pursuant to s 4(1) of the Act, a disciplinary appeal within the meaning of cl 43 of the Transport Administration (Staff) Regulation 2005. By s 23(1) of the Act, the TAB was empowered to decide to allow or disallow the appeal or make such other decision with respect to the appeal as it saw fit. Section 11(2) of the Act provided that the proceedings before the TAB were to be treated as if they were proceedings before the Commission under Pt 7 of Ch 2 of the Industrial Relations Act 1996 ("the IR Act"). 12The TAB was required to act judicially: Morton v Sydney Ferries Corporation [2009] NSWSC 341 at [29]. Stroud's Judicial Dictionary of Words and Phrases notes that the word 'judicial' has two meanings - it may refer to the discharge of duties exercisable by a judge or justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind, that is, a mind to determine what is fair and just in respect of the matters under consideration. The latter meaning of the word is more apt to describe the present matter (see also the discussion by Gleeson CJ in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at [8] and [17]) ("SAAP"). 13Pursuant to s 16 of the Act, the respondent was required to present its case first. 14Section 16 of the Act is in the following terms: 16 Order of presentation of cases (1) At the hearing of an appeal by a Board, the employer's case shall be presented first. (2) Nothing in subsection (1) removes from an appellant or any other person the onus of proving any ground on which the appellant or person relies. 15The respondent tendered six witness statements. All of the respondent's witnesses were required for cross-examination by the appellant. The appellant gave evidence on his own behalf and was cross-examined by the respondent. 16At the hearing before the TAB, the allegations made by the respondent against the appellant were, for the most part, contested. Relevantly, the appellant denied the particulars of the second allegation which alleged that his behaviour was neither wanted nor invited by Mr Kemp. The appellant also denied certain aspects of the conversation between himself and Mr Kemp as particularised in the second allegation, including that Mr Kemp had said the word "don't" after the appellant had commenced a massage on Mr Kemp. Indeed, it was noted by Ritchie C, in his decision at [54], that the proof of the second allegation (which, as noted, related to an incident which had occurred inside the driver's cabin of the train whilst only the appellant and Mr Kemp were present) was based, essentially, on the word of the appellant against the word of Mr Kemp. 17Ultimately, the decision of Ritchie C not to allow the appeal turned upon his findings as to the credit of the appellant and Mr Kemp and his acceptance (at [64]) of the respondent's evidence, in particular the evidence provided by Mr Kemp, as to what had occurred between the two men inside the driver's cabin. In particular, Ritchie C found, on the balance of probabilities, that Mr Kemp had told the appellant "don't" when the appellant had commenced a massage on him. The Commissioner also considered issues of credit and stated it was his belief that Mr Kemp had not "fabricated or embellished" the incident and that he was "genuinely upset by what had occurred that day" (at [63]). 18We shall elaborate upon the conduct of the proceedings before the TAB and the contents of the decision published by Ritchie C shortly. First, however, we will outline the issues which have been raised by the appellant on appeal.

Nature of the Appeal 19The appellant appeals to this Court pursuant to the provisions of s 23A of the Act. 20Section 23A of the Act is in the following terms: 23A Appeals on questions of law (1) A party to a promotion or disciplinary appeal may, subject to subsection (3), appeal to the Full Bench of the Commission in Court Session against any decision of a Board in the proceedings on a question of law. (2) On an appeal under this section, the Full Bench of the Commission in Court Session may: (a) remit the matter to the Board for determination in accordance with the decision of the Full Bench, or (b) make such other order in relation to the appeal as seems fit. (3) Part 7 of Chapter 4 of the Industrial Relations Act 1996 applies to an appeal against a decision of a Board under this section in the same way as it applies to an appeal against a decision of the Commission under section 197B of that Act. 21An appeal under s 23A is limited to an appeal against any decision of the TAB in the proceedings "on a question of law". In Rail Corporation v Brown [2012] NSWIRComm 14 ("Brown"), the Court analysed the provisions of s 23A, and concluded that the section provided a limited right of appeal. The jurisdiction of the Court under s 23A, it was held, is invoked only in circumstances where the TAB has reached a conclusion with respect to a matter that required for its determination the identification of a relevant matter of law, and error was alleged with respect to that matter of law. (It should be noted that the decision of the Court in Brown was recently overturned on appeal by the Court of Appeal in Rail Corporation of New South Wales v Brown [2012] NSWCA 296. However, no challenge was made to this aspect of this Court's decision.) 22The relevant findings of the Court in Brown are as follows (at [20] - [21]): 20 An appeal under s 23A is not an exercise involving a search for any errors in point of law that arise in the proceedings but requires attention to a more precise issue, requiring the identification of a decision of the TAB in the proceedings "on a question of law." In this respect the judgment of Basten JA in Lambert at [70] is of particular relevance where his Honour quotes from the judgment of the Court in Grygiel v Baine [2005] NSWCA 218 at [29] citing the judgment of Bryson JA in Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [38]-[58] that the terms of the Act there under consideration required "that an appellant must identify with precision a decision of the Tribunal with respect to a matter of law, in order to invoke the jurisdiction of the Court." We would respectfully agree with that statement, as relevant to the operation of s 23A. 21 The cases considered above dealing with provisions similar to s 23A provide the following guidance in identifying the scope of the appeal available under the Act: (a) an appeal from a decision on a question of law is a more limited appeal than that available on a question of law or involving a question of law; (b) it is not sufficient, therefore, to merely establish that an error of law has occurred in the course of the appeal; (c) while it must be shown that the Tribunal has made a decision on a question of law that is challenged on appeal, it is not necessary for the Tribunal to have, itself, expressly identified that question. It will be sufficient if the appeal identifies any decision of the Tribunal that is a decision on a question of law. Thus, where the Tribunal reaches a conclusion with respect to some matter that requires for its determination the identification of a relevant matter of law and error is alleged with respect to that matter of law, the jurisdiction of this Court under s 23A is invoked; (d) the appellant, nevertheless, is required to identify with some precision the decision of the Tribunal on a matter of law in order to invoke the jurisdiction of the Court under s 23A; (e) where the questions raised on appeal involve an assessment of the proper scope of the Tribunal's power and jurisdiction, there is an implied decision on a question of law.

Issues on the Appeal 23There were multifarious issues raised by the appellant on appeal but, ultimately, given the conclusions we will reach, it is unnecessary to resolve them. We consider the appeal may be resolved upon the basis of two questions of law which we will discuss below. That being said, we would note that a number of the issues raised by the appellant either lacked sufficient merit for review on appeal or could not be considered questions of law for the purpose of s 23A of the Act. Many of the issues raised by the appellant concerned questions of fact, for example, that factual findings were made by the TAB without a proper consideration of the evidence as a whole, that the TAB erred in finding that sexual harassment had occurred and that the TAB erred in making findings in relation to sexual harassment which were inconsistent with the findings made in the investigation report of the respondent. 24As noted, there were, ultimately, two grounds of appeal which, in our view, came squarely within the definition of a 'question of law' for the purpose of s 23A of the Act, as identified in Brown. (It should also be noted that we consider that these grounds are of such importance that, to the extent leave to appeal is required, leave must be granted in the public interest pursuant to s 188 of the IR Act.) 25The first of the two grounds ("ground one") was identified in the application filed by the appellant on 5 April 2012 as follows: H. Grounds of appeal are: (a) The exclusion of the appellant by the TAB from the proceedings whilst the witnesses for the respondent gave their evidence, despite the appellant's statutory right to be present pursuant to s 11A of the Transport Appeal Boards Act 1980, constituted such a denial of natural justice as to vitiate the proceedings. 26That issue was expanded upon in the appellant's written submissions filed 14 May 2012 to add that the exclusion of the appellant by the TAB also constituted a breach of a statutory right, per se, namely, there was a breach of s 11A of the Act whereby the appellant was required to leave the proceedings contrary to his entitlement to be "present". 27Section 11A of the Act is in the following terms: 11A Persons entitled to be present at proceedings The persons entitled to be present at proceedings of a Board are: (a) the appellant whose appeal is being heard by the Board, and (b) a person appointed by the employer against whose decision the appeal is brought, being a person appointed generally or in respect of a particular appeal or class of appeals, and (c) the employee in whose favour the decision referred to in paragraph (b) has been made. 28We note that it was conceded by the respondent that ground one was a question of law for the purpose of s 23A of the Act. 29The second of the two grounds ("ground two") concerned a failure of the TAB to provide reasons or to provide adequate reasons for its decision. In the application, the appellant identified several aspects of the decision at first instance for which it was contended Ritchie C had failed to provide reasons for his decisions. We are of the view, however, that there was only one aspect which should properly attract review on appeal. That aspect was identified in the application in the following terms: H. Grounds of appeal are: ... (k) In [preferring the respondent's evidence], the TAB completely ignored unrefuted evidence from the investigator who gave evidence for the respondent (and from the appellant) that, during the "massage incident", Kemp said to the appellant that "I know a Thai man who can cum up to five times a day". Proper consideration of this evidence should have led to a finding that Kemp was not upset by the "massage incident", but was a willing participant, as claimed by the appellant. Failure to consider this evidence constituted an error of law. 30The issue identified in ground two, which was referred to during proceedings as the "Thai man incident", related to a conversation, referred to in the particulars of the second allegation (set out above), which had occurred between the appellant and Mr Kemp whilst the appellant was performing a massage on Mr Kemp inside the driver's cabin of the train whilst it was stopped at Chatswood station. In particular, the incident was a reference to a comment made by Mr Kemp in response to a comment from the appellant about his own sexual capacity in which he stated "I know a Thai man who can cum up to five times a day. I have seen him do it". 31Initially, the Thai man comment was omitted from Mr Kemp's original statement provided to the respondent in relation to the incident dated 14 July 2010. However, Mr Kemp subsequently admitted to making the comment in a recorded conversation with Mr Crimmins. That admission was repeated by Mr Kemp in the proceedings before the TAB during cross-examination by counsel for the appellant. It was also later stated by Mr Crimmins, in cross-examination, that the admission of Mr Kemp had caused him to cease pursuing the allegation of sexual harassment against the appellant.

Course of the TAB Proceedings: The Exclusion of the Appellant in Person 32As a result of events which had occurred earlier in the proceedings, the appellant was absent from the hearing room whilst the evidence of Mr Kemp and Mr Crimmins, along with the evidence of the remainder of the respondent's witnesses, was presented. 33The circumstances which lead to the appellant being absent from the hearing room can be identified by reference to the transcript of proceedings before the TAB. The transcript reveals that, shortly after the witness statement for the respondent's first witness, Mr Kemp, was tendered and he began giving viva voce evidence in chief, Ritchie C raised with the solicitor for the respondent, Ms A Baxter, the fact that the appellant was present in the hearing room on the basis that "normally when people are giving evidence other witnesses are not in the room". The exchange that ensued between the Commissioner, Ms Baxter and counsel for the appellant, Mr J Darams, was as follows: COMMISSIONER: Can I just make a comment just before we start and I'm remiss at doing this but normally when people are giving evidence other witnesses are not in the room. I appreciate Mr Byrne is in the room. Has parties given any views with respect to that, Ms Baxter? BAXTER: Commissioner I think it probably would - well it would be preferable if Mr Byrne wasn't in the room and its remiss of me for not observing that before now. COMMISSIONER: No, its my fault. Mr Darams do you have any views on that? DARAMS: I don't have any objection to Mr Byrne stepping out of the room but can I just say this, this witness has provided a witness statement. At the moment this witness has, in one area, given additional evidence that's included in this witness statement. COMMISSIONER: He has not? DARAMS: He's given additional evidence that's not included in this statement from some of the questions that have fallen from my friend. Because it's not in there - I haven't objected at the moment. I'll have to see what happens with this further questioning. It might be that at the end of the day this witness just keeps reciting what's in his statement, if that's right I'll - but if he's giving additional evidence I may need to seek instructions. That's the only benefit for Mr Byrne staying in the room, so I don't lose it in translation. COMMISSIONER: Yes, you might just save your questions up and do it at lunchtime or sometime - or after a break. DARAMS: Yes. COMMISSIONER: All right, well I wonder, Mr Byrne, Mr kevin Byrne? APPELLANT: Yes. COMMISSIONER: If you could leave the room, thank you sir. I apologise to the parties for that. Ms Baxter. BAXTER: Thank you. 34Shortly after the appellant left the room, after Ms Baxter had recommenced leading evidence in chief from Mr Kemp, counsel for the appellant complained to Ritchie C that he could not obtain instructions from his client about that evidence without his client being present. The following exchange ensued: BAXTER: ... Q. You can continue with your explanation? A. Kevin was twirling the rats tail in his fingers and mentioned to not tell anybody about what was happening. He started to rub and stroke and play with my neck area, massaging shoulders and he made a comment that all men would have bisexual tendencies believing that if you see another good looking guy in the street, that you wouldn't think that he was good looking. I had made mention then or I started "don't" in the actions and what he was doing at the time. Q. Sorry, can I just interrupt. How did you say "don't"? A. Just in a firm way, "Don't", such as that. Q. What tone of voice? DARAMS: I am going to object to this. I am objecting to the answer. Here is my concern. How do I test? BAXTER: It's his evidence. COMMISSIONER: I think it's a fair question. DARAMS: It is but it's only fair to this answer that I can't relay this to my client to get instructions. There's no reference in this statement about tone or anything like that. I think that my client should be in here to hear the question and hear the answer. His evidence is this witness didn't say "don't" at all. I need to get instructions on that and I anticipate this witness is now going to verbalise the tone that he said it in and give an explanation or example. I need to get some instructions on that. It's getting very difficult for me to get instructions on that if Mr Byrne can't hear that. COMMISSIONER: What's say you save up your questions to ask Mr Byrne. ... 35After a further objection by Mr Darams to a question put to the witness, Ms Baxter concluded leading evidence in chief from Mr Kemp. Prior to commencing his cross-examination of the witness, Mr Darams was given an opportunity by Ritchie C to consult with the appellant: COMMISSIONER: Do you wish to take a break to determine if you want to ask any questions? Do you want to clarify anything with your client? DARAMS: I'll need a very short five minute break to do that. 36The TAB then adjourned for lunch, following which Mr Kemp was cross-examined by counsel for the appellant. Over the course of the remainder of the day (and into the next), a witness statement was tendered without objection for each of the respondent's remaining five witnesses, and each of those witnesses gave viva voce evidence whilst the appellant was not present. The record of the proceedings before the TAB does not make clear what approach, beyond that described in the above extract, was adopted by the TAB to allow counsel for the appellant to communicate with and take instructions from his client vis á vis the evidence given by the respondent's remaining witnesses. Indeed, it is apparent that the issue of the appellant's absence was not again raised in any context by the Commissioner, the respondent or the appellant's counsel after the adjournment referred to above. It is also evident, upon a reading of the record of the proceedings, that Ritchie C did not raise with counsel for the appellant or make him aware of any issues which may have arisen in the evidence presented by the respondent's witnesses (in the absence of the appellant) about which he may wish to take particular instructions from his client.

Ground One 37By ground one of the appeal, the appellant contended that the decision by the TAB to require the appellant to be absent from the hearing room was an error of law. This contention was prosecuted on two bases. In the application, the appellant pleaded that the determination to remove him from the hearing room constituted denial of procedural fairness. It was also contended that his exclusion was contrary to the requirements of s 11A of the Act. The latter proposition was predicated upon the notion that the words "entitled to be present at proceedings of a Board" in s 11A, constituted something akin to an absolute right for the appellant to be actually at the place where the proceedings were conducted, in the sense that the appellant would be physically present to witness the conduct of the proceedings.

The TAB and Principles of Procedural Fairness 38It was common ground that, in exercising the powers conferred upon it under the Act, the TAB was under an obligation to accord procedural fairness. That consensus must be considered correct in the light of recent authority bearing upon administrative decision making (see Re Refugee Review Tribunal and Another; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 ("Aala") at [41] and [142]) and given the statutory framework in which the decision of the TAB is rendered: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (at 584 - 585) per Mason J, (at 594) per Wilson J, (at 616) per Brennan J and (at 632) per Deane J ("Kioa"). Those authorities establish that there must be a clear statutory intent to remove the requirements of procedural fairness. 39The decision of the TAB directly affects the rights and interests of the appellant vis á vis his employment and, in particular, the loss of his employment. The proceedings before the TAB concerned a disciplinary process and decision by the respondent which resulted in the dismissal of the appellant after 35 years' employment. Practice Note No. 22, entitled "Procedures Before the Transport Appeal Boards" (issued pursuant to s 185A of the IR Act and s 11 of the Act), specifies that disciplinary proceedings before the TAB will be formal. Furthermore, the proceedings were governed by rules which require the application of general law requirements for procedural fairness. 40As we have previously noted, the authorities make clear that the proceedings must be conducted judicially. Section 11(2) of the Act requires that the hearing of the appeal be treated as if it were proceedings before the Commission under Pt 7 of Ch 2 of the IR Act. The Note accompanying the section identifies that that provision operates to bring in the requirements of, inter alia, Pt 5 of Ch 4 of the IR Act and with it the provisions of s 163(1)(c) of that Act which requires the Commission (and, thereby, the TAB) to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. That provision of the IR Act brings with it the requirement to act in a procedurally fair manner: Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120 at [160(1)]. Section 17, whilst permitting the TAB to inform itself on any matter in such manner as it thinks fit, is constrained by the requirements of s 17(2) which prohibits the TAB from informing itself on any matter which has not been disclosed at a sitting of the TAB "if the matter is one which ought, in the interests of justice, to be available for challenge or testing by persons entitled to be present at the sitting".

Content of Principles of Procedural Fairness 41The aforementioned conclusion does not determine, of course, the issue which has been raised in ground one. It is merely a starting point. Whilst the exercise of the powers of the TAB will be conditioned upon the observance of the principles of procedural fairness, the content of the principles to be observed must be determined in the light of the statute governing the exercise of the powers and the particular circumstances of the case. 42The significance of the construction of the statute conferring power upon the content of procedural unfairness in a particular case was discussed in a number of the judgments in Kioa. It will be convenient to set out some of the relevant passages, as follows: (per Mason J at 584-585) Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, Kitto J. pointed out (at pp 503-504) that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on "the particular statutory framework". What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 552-553; National Companies and Securities Commission v. The News Corporation Ltd. [1984] HCA 29; (1984) 58 ALJR 308, at pp 314, 318; [1984] HCA 29; 52 ALR 417, at pp 427-428, 434). In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations (cf. Salemi (No. 2), at p.451, per Jacobs J.). (per Wilson J at 594) As Stephen J. remarked in Salemi (at p.444) it is now a truism that in cases in which the rules of natural justice are applicable the procedural consequences will not necessarily be uniform. They will depend upon what Kitto J. described, in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, at p 504, as "the particular statutory framework" within which they are to apply. His Honour continued: "By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin (1963) 2 W.L.R. 935, at p.947. As Tucker L.J. said in Russell v. Duke of Norfolk (1949) 1 All ER 109 (at p 118), in a passage approved by the Privy Council in University of Ceylon v. Fernando (1960) 1 All ER 631, at p 637, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: 'the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth'". (per Brennan at 612) I would adopt this view though I should state my understanding of his Honour's question "what particular principles should be applied?". The content of the principles which the legislature intends to be applied in the circumstances of a particular case cannot be discovered by reference solely to the statute. Nevertheless, a legislative intention that the principles of natural justice apply is an intention that the principles appropriate to the circumstances of the particular case should apply. The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power. The variable content of the principles of natural justice was articulated by Tucker L.J. in an oft-cited passage in his judgment in Russell v. Duke of Norfolk (1949) 1 All ER 109, at p 118: The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case. (per Brennan J at 614-61) To ascertain what must be done to comply with the principles of natural justice in a particular case, the starting point is the statute creating the power. By construing the statute, one ascertains not only whether the power is conditioned on observance of the principles of natural justice but also whether there are any special procedural steps which, being prescribed by statute, extend or restrict what the principles of natural justice would otherwise require. In Wiseman v. Borneman, at p 308, Lord Reid said: Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules. For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation. 43In VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 ("VEAL") at [23], the High Court observed (albeit in the particular statutory context of that matter): In this case, the particular content of the obligation to accord procedural fairness was to be identified having regard not only to the particular provisions of the Act that regulated the Tribunal's work but also to the scope and objects of the Act as a whole. In that latter regard, it is necessary to keep two propositions at the forefront of consideration. First, the Act required that those entitled to a particular visa be granted the visa they sought, and that those not entitled be refused. Secondly, the Act committed the decision to grant or refuse a visa to the Executive government and the Tribunal was likewise exercising executive power, not judicial power. 44It will be seen from the judgment of Brennan J in Kioa that the principles must ultimately be governed by the application of the legislative provisions to the particular circumstances of the case, although the statute creating the power is the "starting point". In Kioa, Mason J described the requirement for a flexible approach in the following passage of his judgment (at 585): When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned. 45Wilson J, in Kioa, commented (at 601) "[e]ven within the same statutory framework differing circumstances may call for a different response ... ". 46Brennan J observed that "when the exercise of a statutory power is so conditioned, regard must be had to the circumstances of the particular case to ascertain what is needed to satisfy the condition" (at 611). 47To similar effect, Gaudron and Gummow JJ stated in Aala (at [62]): "The content of the requirement for procedural fairness may fluctuate during the course of particular administrative decision making". Further, in Saeed v Minister for Immigration and Citizenship [2010] HCA 23, French CJ, Gummow, Hayne, Crennan and Kiefel JJ stated (at [18]): "It is necessary to bear in mind, in that regard, that what is required to provide procedural fairness according to the rule [being the hearing rule] will vary. Natural justice is flexible and adaptable to the circumstances of the particular case." 48Finally, as to this discussion of relevant principles, where a court is called upon to consider issues of procedural fairness, those issues must be informed by the facts and circumstances in which they arise. So much is clear from the observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37], where his Honour stated that "... Fairness is not an abstract concept. It is essentially practical. When one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." In Veal, the High Court observed (at [25]): "... The application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of the case."

Statutory Construction and Principles of Procedural Fairness 49There are a number of provisions of the Act which bear upon the operation of principles of procedural fairness in the present case. Significant amongst these, given the appellant's contentions, is s 11A of the Act.

Section 11A of the Act (and s 162 of the IR Act) 50The construction of s 11A proffered by the appellant must have the effect of enlarging the requirements for procedural fairness beyond those required by the general law. This is so because the contention brings with it the proposition that in no circumstances (other than, presumably, by his own acquiescence) may the appellant be removed from or be required to be absent from the hearing of his case before the TAB. 51The contention, thus, immediately stands as a contradiction of the aforementioned principles which stipulate that the requirements for procedural fairness will be flexible and will vary according to the particular circumstances of the case. That approach also stands in contrast to authorities which have established that the exclusion of an applicant from a hearing will not, in every case, result in a breach of the requirements of procedural fairness: Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 (at 508, 509 and 511) ("Pochi"). 52The construction of s 11A relied upon by the appellant depended substantially upon a textual construction of the opening words of s 11A. However, parties paid little attention to an examination of the ordinary grammatical meaning of the words appearing within the phrase "The persons entitled to be present at the proceedings of the Board" or, for that matter, the proper meaning of the phrase when considered as part of the whole of that section. 53If attention were fixed upon the word "entitled" as a verb meaning, broadly, to give a person a right, and upon the word "present" as meaning in a specified place or being actually there, then some support may be found for the contention of the appellant. However, such an approach, in our view, would be inconsistent with the proper application of principles of statutory construction because it involves: ignoring the surrounding words of the section (see as to the requirement to consider the effect and meaning of all words of the statute: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71] (per Mason J); failing to consider the statute as a whole (see, for example, Mason J in K & S Lake City Freighters Pty Ltd v Gordon and Gotch Ltd (1985) 157 CLR 309 at 315 and Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304 and 319-320 and ignoring context and purpose. Gummow J, in SAAP at [107], emphasised that the process of construction must always commence with an examination of the context in which a provision appears. Recent High Court authority has emphasised that, after beginning with textual considerations (or a consideration of the ordinary and grammatical meaning of words of a provision having regard to their context), context and purpose form an important part of statutory construction: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 at [28] and Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at [41]. 54The immediate consideration is, of course, the balance of the words in s 11A. As the provision appears, following the amendment to the Act by the Public Sector Employment and Management Act 2002 ("the PSEM Act"), the reference to an entitlement to be present concerns three classes of interest reflected in sub-paragraphs (a), (b) and (c). The section is also directed to both promotion appeals and disciplinary appeals (see s 3 of the Act). It is not entirely clear why the legislature has chosen to include all of those classes in the case of disciplinary appeals, as at least the third class would seem to be redundant in that respect and relate only to promotional appeals under the Act. Be that as it may, the third class must be treated, if the appellant's submission be correct, as a class of interest which may insist on being present during the whole of the proceedings before the TAB, notwithstanding the fact that the interest held may be quite restricted in the contest of a multi-party promotional appeal. This gives the first and preliminary indication that the section may, in fact, have as its purpose the identification of those who may appear or be a party to the proceedings rather than a prescription as to whether those interests may insist on being physically in attendance during the course of the proceedings at all times. That is also supported by the provisions of s 17(2) which refer to "persons entitled to be present at the sitting": a provision more consistent with the notion that the person was being referred to as a party or equivalent thereto, and not in the manner identified in the appellant's submissions. 55We were taken to the history of the Act by the respondent in support of its contention that s 11A operated merely as an enabling provision concerning the appearance or representation of parties at proceedings before the TAB. 56That history discloses that the original form of the Act (Act No. 104 of 1980) contained a similar provision to that now found in s 17(2), but also included s 18 which, in relation to a compulsion to produce documents and the like, referred to the same class of person referred to in s 17(2) as "a party to the appeal". It might also be noted that the original form of the Act provided that "the appellant was entitled" to be represented by a barrister, solicitor or agent "who may examine witnesses or address the Board" on his or her behalf. No distinction was drawn at this time between formal and informal proceedings or disciplinary and promotional appeals. 57The PSEM Act introduced a new bank of provisions corresponding with the legislator creating a dichotomy as between disciplinary and promotion appeals (see s 4(1) of the then form of the Act). In the bank of provisions that were introduced to the legislation (ss 11A to 11D) the principal change introduced was to differentiate between formal and informal proceedings, the latter providing for proceedings not to be conducted in an adversarial manner (with persons not entitled to representation at the proceedings). Disciplinary proceedings were the subject of the same requirements except that the Act required that the formal proceedings be open to the public unless the TAB, upon application by a party, determined otherwise (s 11D(3)) and that persons entitled to be present at the formal proceedings may be represented by a legal practitioner by leave. The provisions relating to an entitlement to be present were in the same form for both formal and informal proceedings and in the same form as s 11A of the Act. 58The Industrial Relations Amendment (Public Sector Appeals) Act 2010 removed the distinction between formal and informal proceedings and merged the provisions previously found in s 11C(2) to what is now found in s 11A. However, the legislature also introduced s 11(2) which we have previously noted would adopt provisions of the IR Act. Amongst other things, the incorporation of provisions from the IR Act by virtue of s 11(2) had the effect of providing that persons may be represented by a legal practitioner in all proceedings (see s 166(1) of the IR Act). 59In its current form, s 11A, by virtue of s 11(2), needs to be considered in the context of s 166(1) of the IR Act and, therefore, in circumstances in which a party will be entitled, irrespective of the nature of the proceedings, to legal representation. When seen in this light, the proceedings are different in character to those found in earlier forms of the Act and give rise to the question as to whether, subject to rules of procedural fairness, the provisions of s 11A might, in appropriate circumstances, be met by the representation of a party by a legal practitioner. That leaves the question of what the content of procedural fairness may be in the first instance proceedings still open, but gives rise to a further doubt as to whether s 11A functions in the manner proposed by the appellant. 60There is a further factor which we consider should result in a conclusion against the construction of s 11A proposed by the appellant. At least from the time of the passage of s 11D(3) of the PSEM Act, and certainly by the time the provisions of s 11(2) of the Act incorporated the requirements of s 162(2)(b) of the IR Act, there arose, in relation to disciplinary proceedings before the TAB, a further significant basis upon which the contentions of the appellant as to s 11A should be rejected. That is because the earlier provisions of s 11D(3) and later s 162(2)(b), both contemplate that the proceedings may, in limited circumstances, be conducted privately. Whilst this may indicate that the procedural fairness requirements of the Act are such that the appellant should normally be able to remain to hear the case brought against him in proceedings, irrespective of the presence of counsel, the provisions cannot sit comfortably with the contention that s 11A is to be construed as providing a right to be present in the proceedings irrespective of the prevailing circumstances which might, where appropriate, warrant a private sitting.

Sections 16 and 17 of the Act 61That analysis does not conclude questions of statutory construction bearing upon the requirements for procedural fairness. Two provisions which require attention are ss 16 and 17 of the Act. 62The practical consequence of s 16, which was manifested in the present proceedings, is that the case for the respondent will be presented in its entirety before the case is presented for the appellant. Given the formal nature of the proceedings, this will usually entail that statements of evidence will be produced (para 12.1, Practice Note No. 22, "Procedures Before the Transport Appeal Boards"). Whilst parties will usually be directed that the material they file in advance of a hearing will include in or with their written statements all matters or documents "upon which they rely or they allege are relevant to the proceedings", the normal practice of the TAB is to permit viva voce evidence to supplement those written statements. This procedure was adopted in this case. As we have noted, viva voce evidence was led from each of the respondent's witnesses, and each such witness was cross-examined. 63In the result, as was demonstrated in the present case, the exclusion of an appellant will not only deprive him of an opportunity to hear (or witness) the evidence brought against him by the respondent but will deny him the opportunity of providing contemporaneous instructions to his legal representative as to the content of that evidence, even in circumstances when advance notice of evidence is provided in writing to the appellant. The procedure said to obviate this difficulty in the present case was to permit counsel to consult with the appellant outside the hearing room. 64It is in this way that s 16 casts a light on the fairness of the procedures in this matter. A more detailed discussion can be undertaken after we embark below upon a discussion of authorities which consider, in other legal contexts, the requirements of procedural fairness (in the sense of the content of procedural fairness required in various cases) including the fairness or otherwise of procedures which exclude an applicant from proceedings, even when represented by a legal practitioner. 65Other than the provision of s 162, which we have previously discussed, the remaining provision of the Act requiring attention at this stage is s 17. That section is in the following terms: 17 Evidence (1) A Board is not bound by the rules or practice as to evidence and may, subject to subsection (2), inform itself on any matter in such manner as it thinks fit. (2) A Board shall not inform itself on, or take into consideration, any matter which has not been disclosed in evidence at a sitting of the Board if the matter is one which ought, in the interests of justice, to be available for challenge or testing by the persons entitled to be present at the sitting. (3) Nothing in subsection (2) prevents a Board from informing itself on, or taking into consideration, any matter of which it is entitled to take judicial notice. 66True, it is, s 17 provides, as we have previously noted, that the TAB may inform itself on any matter in such manner as it sees fit. However, that provision is constrained by the terms of sub-s (2) which provides that the TAB shall not inform itself as to any matter which is not disclosed in the evidence at a sitting of the TAB if it is a matter which, in the interests of justice, should be available for challenge or testing by, relevantly in this case, the appellant. 67When read in this light, we do not think that s 17 should be construed as trenching or contracting the general principles or requirements of procedural fairness in this matter. Those requirements will be contracted only where there exists clear language by the legislature. In this case, the legislature has been careful to preserve, in the interests of justice, that particular classes of evidence must be subject to challenge or testing. Once that consideration is identified and it is understood that the principal evidentiary contest in this matter concerned the conflicting accounts of the appellant and Mr Kemp regarding the circumstances which gave rise to the disciplinary action, it could not safely be concluded that the provisions of s 17(2) were not engaged. Indeed, that seems to be the approach adopted by Ritchie C. The question remains, then, what is the content of procedural fairness in the circumstances of this matter having regard to the fact that the appellant was represented in those proceedings? 68Apart from the issue of waiver (to which we shall return), the essential defence by the respondent of the decision of Ritchie C to exclude the appellant was, as we have noted, the fact that he was represented by counsel. This contention must be examined, again as we have noted, upon the particular statutory scheme and the particular circumstances of this matter. However, both parties relied, to varying degrees, upon authorities which were said to determine or cast a light upon the adjudication of that issue (by eliciting from the authorities approaches to such issues in the common law or in other, but similar, statutory contexts). We propose to traverse some aspects of those authorities, whilst progressively turning to the circumstances of this matter.

Authorities Bearing on the Principles of Procedural Fairness 69The approach taken in the criminal law is a useful starting point (although that approach will certainly not be determinative of the issues in this matter). 70An essential principal of procedural fairness in criminal law matters is that a trial for an indictable offence, being the whole of the proceedings including the sentencing proceedings, has to be conducted in the presence of the accused: Lawrence v The King [1933] AC 699 at (708). Limited exceptions include when the conduct of the accused renders it impossible to continue to trial: Eastman v The Queen (1997) 76 FCR 9 at (44); R v Cornwell [1972] 2 NSWLR 1 at (3) (except in the case of a sentencing hearing), or where the accused has escaped from custody (which may amount to a waiver): McHardie and Danielson [1983] 2 NSWLR 733 at (745). However, it has been held that, even in a charge of misdemeanour, there must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused; the accused must be present to hear the case made against him and to have the opportunity, having heard it, of answering it: R v Lee Kun [1916] 1 KB 337 at (341). 71Civil proceedings require a separate consideration. 72The appellant relied upon a recent decision of the Supreme Court of Georgia in Kesterson et al. v Jarrett et al. (Supreme Court of Georgia, United States of America, Case Number S11G05090, 18 June 2012) ("Kesterson") in which the Court found that a party may not be denied the right to be present during proceedings with a jury at trial based upon a concern that her physical and mental condition may have evoked undue sympathy from the jury and, thereby, improperly prejudiced the other party. The case involved a young child with cerebral palsy who, along with her parents, had sued the respondent for medical malpractice. In considering the issue on appeal, Nahmias J noted (at 6): ... The right of a natural party to be present in the courtroom when her case is being tried is deeply rooted in the law of this Nation and, if anything, even more embedded in the law of this State. It has been treated as a component of the due process of law in both criminal and civil cases since the early decisions of this Court. 73It was submitted by Mr J Murphy of counsel, who appeared on behalf of the appellant, that the position as articulated by Nahmias J in Kesterson was no different to the common law position in Australia. 74Conversely, it was submitted by Mr P Ginters of counsel, on behalf of the respondent, that the appellant's submission in this respect was overstated. The decision in Kesterson alone, it was submitted, could not be said to represent the common law position in Australia, but, rather, reference must be had to the Australian authorities which have developed in this area. 75The principles in Kesterson were stated in circumstances where the party in question was represented by a legal practitioner. Nonetheless, some caution needs to be expressed in accepting, as Mr Murphy contended, that this decision represents the common law practice in Australia. We agree with Mr Ginters that particular attention needs to be focussed on Australian authorities. 76Before turning to a consideration of those authorities, however, we would mention two English authorities (we shall discuss some other English authorities when discussing the decision in Kingscape Holdings Pty Ltd v Gary Kenneth Smith and Don Samuel Evill [2001] WAIRComm 3532). 77Grimshaw v Dunbar [1953] 1 QB 408; [1953] 1 All ER 350 ("Grimshaw") involved a landlord who had brought an action against a tenant to recover possession of property on the ground that the tenant was in arrears with his rent. The tenant defendant was advised by a court official, upon attending at the county court and paying the arrears of rent in full to the court, that it would not be necessary for him to attend the hearing since the summons would be dismissed by reason of the payment. In his absence, after hearing the landlord/plaintiff's evidence, the judge made an order for possession. On appeal, a question arose as to whether the tenant ought to be granted a new trial in the circumstances. Jenkins LJ stated (at 416): ... a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent's case and cross-examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case - no doubt on suitable terms as to costs, as was recognized in Dick v. Piller. ... 78It was contended by the respondent that Grimshaw was distinguishable from the present matter, given that the prima facie entitlement identified by Jenkins LJ was one that was recognised in the context of a case where there had been no appearance by a party (and, further, no appearance by a party accidentally). As such, the absent party was denied his entitlement to dispute his opponent's case, cross-examine his opponent's witnesses, call his own witnesses and give his own evidence. The circumstances which led to the tenant's absence in Grimshaw and the consequences of his absence were, it was submitted, very different from what occurred in the present case. 79Whilst there are clearly some different factual circumstances arising in Grimshaw, we do not see why the principle endorsed by the court would not have some applicability to the present proceedings. Whilst not absent from the whole of the hearing before the TAB, the appellant was not present for the entirety of the respondent's evidentiary case. As a result, although his entitlement to call his own witnesses and give evidence before the TAB was not affected, he was shut out from hearing the evidence of the respondent's witnesses and giving instructions, as required, to his counsel during cross-examination. The distinction drawn by the respondent between the circumstances in Grimshaw and those in the present case is, in this respect, limited. As will be discussed below (in relation to Pochi), it is clear that an essential aspect of the principle that a party to proceedings is entitled to be present throughout the conduct of those proceedings is to ensure that the party has the ability to contradict its opponent's case. In the present case it matters not (for the purposes of ground one) that the appellant had the opportunity to be present in the proceedings to give his own evidence, but, rather, it is material that his opportunity to contest the evidence of the respondent was constrained in the manner we have previously described. This issue will be revisited below. 80In R (On the Application of Elvington Park Ltd) v York Crown Court [2011] EWHC 2213 (Admin), Judge Langan considered an application for judicial review, made by Elvington Park Ltd, to quash a decision of the Crown Court on the basis that the company had been denied procedural fairness by having their witnesses excluded from the trial whilst witnesses for the respondent were allowed to remain in court. The excluded witnesses included the company secretary, who was responsible for instructing counsel for the company. In his decision, Judge Langan referred to the case of Tomlinson v Tomlinson [1980] 1 WLR 322; [1980] 1 All ER 593 Fam Div at 596 in which Sir John Arnold P (Wood J agreeing) noted (at 326) that, in the context of family law proceedings, if an application is made, witnesses should be excluded from the proceedings for the period prior to giving their evidence. His Honour went on to note, however, that "[t]his of course does not apply and never has applied to the parties themselves or their solicitors or their expert witnesses. Those are never excluded from the court." Judge Langan also referred to the case of First Tier Tribunal (Tax Chamber) in Mobile Export 365 Ltd v Commissioners for HMRC [2010] UKFTT 367 at [52] - [53] in which the Tribunal noted, in relation to a corporate litigant, that it was open to question whether it had the power to exclude any officer of a company from a hearing involving that company. 81However, It was ultimately held by Judge Langan that, whilst the exclusion of a party from proceedings was, prima facie, unacceptable, the exclusion of the company secretary did not constitute a denial of procedural fairness (rather, he referred to it as a "procedural accident" (at [33])) because the direction that the witness remain outside the hearing room was given by a court officer, not the Court. In any event, the direction of the officer was intended for witnesses from both sides and there was no suggestion that the company secretary's position was brought to his attention. Further, the question of the company secretary's absence could have been, but was not, raised with the court by counsel for the company and it was held (at [36]) that the "failure to take an obvious point is properly to be regarded as an election not to take it". Finally, it was held that, because there was no evidence that the outcome of the matter would (or even might) have been different had the witness not been excluded, the conduct of the trial had not placed the companies at any significant disadvantage. 82We now turn to Australian authority. 83In Escobar v Spindaleri (1986) 7 NSWLR 51 ("Escobar"), the Court of Appeal heard an appeal from a decision of the Compensation Court in which Manser J had entered an award in favour of the respondents to an application for compensation brought by the appellant. An issue raised on appeal related to an exchange which had taken place between Manser J and counsel for the appellant at first instance during which Manser J indicated, at the completion of the appellant's evidentiary case, that he would dismiss the application if no further evidence was called by the appellant, to which counsel for the appellant responded by saying "[y]our Honour can do what you like". Manser J then dismissed the application. 84On appeal, the appellant complained that Manser J had dismissed the application prematurely and without affording counsel the opportunity to address which resulted in a denial of procedural fairness. The Court (Kirby P, Glass and Samuels JJA) agreed that a denial of natural justice may arise when a court proceeds to a decision without affording counsel an opportunity to address. It was also held by Kirby P and Glass JA (Samuels JA dissenting) that counsel had not positively waived his right to address the Court and that the appeal should be allowed and a new trial should be ordered (we shall consider the issue of waiver further in due course). In relation to procedural fairness, it was noted by Kirby P (at 57 - 58): The importance of having a fair trial at which a party can put his case properly before the judge was stressed by the English Court of Appeal in Jones v National Coal Board [1957] 2 QB 55 at 67. This attribute of the administration of justice was recently emphasised by the High Court of Australia in Stead v State Government Insurance Commission (1986) 60 ALJR 662 at 663-664; 67 ALR 21 at 23. It cannot be said with assurance that a dialogue between the trial judge and counsel would have had no effect upon the decision of the trial judge in this case. To so conclude would be to deny common experience in the courts and the value which is attached to oral argument and persuasion. In Stead, the High Court (Mason, Wilson, Brennan, Deane and Dawson JJ) observed (at 664; 24): ... Not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial. Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. In the present case there were real issues of fact to be resolved as to the credit of witnesses and the conclusions to be derived from adverse decisions on their credit. It was thus inappropriate and unjust to proceed to a conclusion in this case without affording a full opportunity for argument. Yet this is what the trial judge did. The impertinent observation by counsel inviting the trial judge to do what he liked was no justification for his Honour's acceptance of that invitation. The proper course to have followed, in the circumstances, was to have invited argument. By failing to do so, a breach of a basic requirement of natural justice occurred in this case. 85The factual circumstances which arose in Escobar are distinct from those which arose in the present case. However, the principles upon which the Court of Appeal determined that there had been a denial of natural justice in that case are relevant and applicable here. Significantly, the Court emphasised (citing the High Court's decision in Stead v State Government Insurance Commission [1986] HCA 54; [1986] 161 CLR 141 ("Stead"), to which we shall return) that, whilst not every departure from the rules of natural justice will justify a retrial, a retrial will be warranted in circumstances where it is not possible to conclude that compliance with natural justice requirements would have made no difference to the decision reached by the trial judge. Consistently with the conclusion reached by the Court in Grimshaw, the Court of Appeal also noted that the ability of a party to properly put their case was an essential element of ensuring a fair trial. As already noted, the appellant's ability to contest the evidence of the respondent, and, therefore, it must follow, his ability to properly put his case as a whole, was constrained by his exclusion from the proceedings during the presentation of the respondent's evidentiary case. It must be considered, however, whether the presence of the appellant's counsel could be said to have overcome this problem. 86In Pochi, Brennan J considered whether, in the context of an appeal against a deportation order made under the Migration Act 1958 (Cth), the Administrative Appeals Tribunal ("AAT") might appropriately exclude the public and the applicant under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). Section 35(2)(a) of that Act was in the following terms (in Pochi at (507-508): Section 35(2) of the Administrative Appeals Tribunal Act confers the power to exclude the public and an applicant from a hearing in which evidence is to be given against him. It provides:- (2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order (a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; ... 87It will be observed that s 35(2)(a) of the AAT Act is not dissimilar in terms to s 162(2)(b) of the IR Act. We shall return to that consideration. 88In Pochi, Brennan J determined to receive evidence from a Detective Senior Constable in the absence of the applicant on the basis that it was necessary, in the public interest, to protect the sources of all information used to combat crime (the Detective Senior Constable was an experienced officer of the New South Wales Police Force who served with the New South Wales Drug Squad and performed duties with the New South Wales Royal Commission into Drugs). Nonetheless, the applicant's counsel and solicitors were not excluded, but were prohibited from conveying the evidence to their client (at 507, 512 and 513). 89In the course of making that ruling his Honour discussed the law and principles governing his decision. His Honour observed (at 508 - 510): To exclude the public from a hearing is a serious step, for the Tribunal is required by statute (s 35(3)) to "take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be in public". This is a principle which is binding upon courts of justice (see R v Tait Federal Court of Australia, 1 May 1979, unreported), and which is calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process (McPherson v McPherson [1936] AC 177 at 200) and its exposure to public scrutiny is calculated to enhance greater public confidence in it. Serious though the exclusion of the public is, the exclusion of a party from a hearing which affects his interests is a much graver step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him -a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal. In Commissioner of Police v Tanos (1958) 98 CLR 383 at 395, 396 Dixon CJ and Webb J said: For it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard. In Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 at 194 Byles J said that a long course of authority established 'that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature' ... The general principle has been restated in this court with a citation of authority in Delta Properties Pty Ltd v Brisbane City Council (1955) 95 CLR 11 at 18. It is hardly necessary to add that its application to proceedings in the established courts is a matter of course. But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment": see also Kanda v Government of Malaya [1962] AC 322 at 335, et seq; Shareef v Commissioner of Registration of Indian and Pakistani Residents [1966] AC 47 at 61. In T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992, Lord Denning MR at 995 insisted that exemption from cross-examination upon evidence before a tribunal can be justified only if the affected party nevertheless has "a fair opportunity of commenting on it and of contradicting it". There are, however, exceptions to the general rule which requires a party to have a fair opportunity of meeting the case against him - exceptions of varying content turning upon a variety of circumstances and statutory provisions. The exceptions were referred to by Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1962-1963) 113 CLR 475 at 503, 504: "And notwithstanding what Lord Loreburn said in Board of Education v Rice [1911] AC 179 at 182 about 'always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view' the books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject matter: cf Ridge v Baldwin [1963] 2 WLR 935 at 947. As Tucker LJ said in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 in a passage approved by the Privy Council in University of Ceylon v Fernando [1960] 1 All ER 631 at 637, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: 'the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth'. What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances." And in Salemi v Minister for Immigration and Ethnic Affairs (1977) 14 ALR 1, Gibbs J said at 19:- The question whether the principles of natural justice must be applied, and if so what those principles require, depends on the circumstances of each case. In the case of a statutory power, the question will depend on the true construction of the statutory provision in light of the common law principles: cf Durayappah v Fernando [1967] 2 AC at 350 ... 90His Honour also observed (at 510 - 511): Yet the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant - they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly. An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must appear a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described by s 36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section). Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s 35(2) authorizes it to remove those impediments to the receipt of information. Yet the power is conferred in order to do justice in exceptional cases - that is to say, where "the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public" cannot be applied. Some of these exceptional cases are statutorily defined: see, for example, the Insurance Act 1973 s 63(14). To exclude a party, a further criterion must be satisfied. As it must appear that the exclusion of the party is essential to preserve the proper confidentiality of the information needed to determine the application, it is necessary to show that the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence, and denying the party access to it, than by refusing an order to exclude the party. This criterion is not easy to satisfy though it is possible to do so. The criterion is not easy to satisfy because an applicant's interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. 91It was contended by the respondent that Pochi was distinguishable from the circumstances of the present matter. Brennan J's observations, it was submitted, were addressed to a situation where a party was excluded from a hearing by virtue of the exercise of a statutory power by the AAT whereas, in the present case, the appellant's counsel, when asked, indicated he had no objection to the appellant being outside the hearing room. Further, Brennan J was considering a situation where the excluded party's legal representatives, whilst permitted to remain in the hearing room, were prohibited from disclosing to their client the evidence given whilst he was excluded. In contrast, in the present matter, it was submitted, Ritchie C had made express provision for the appellant's counsel to seek instructions from the appellant as to the evidence disclosed in his absence. 92We see no reason why the general principles stated in Pochi would not be applicable in the present matter. We have found no authority to the contrary (we will return to the decision in SAAP below) and the statutory provisions of s 35(2)(a) of the AAT Act and s 162(2)(b) of the IR Act confer similar powers vis á vis the closing of proceedings on the respective Tribunals governed by the provision of those Acts. It has been held by the Commission, in relation to s 162(2)(b), that it is a fundamental rule that the administration of justice must take place in an open court, and that legal proceedings should only be heard in private if it is clearly required by the dictates of justice or if justice will otherwise be defeated: Stonham v Speaker of the Legislative Assembly of New South Wales (No 2) 90 IR 334 (at 353); X v NSW Department of Education and Training 89 IR 1 (at 8). Whilst, on those authorities, the exclusion of the public will not be readily justifiable, as noted by Brennan J, serious though it may be, "the exclusion of a party from a hearing which affects his interests is a much graver step" (at 508). 93What Pochi makes clear, however, is that the general rule which requires a party to be present and to have a fair opportunity to meet the case against him is not universal. Rather, the application of that rule, and what will be fair in a given situation, depends upon the particular circumstances of a case including any relevant statutory provisions (Pochi at 509, citing Kitto J in Mobil Oil Australia Pty. Ltd. v Federal Commissioner of Taxation (1963) 113 CLR 475, and, further, see a previous reference to more recent authority therein). However, it is apparent that the exclusion of a party to proceedings will constitute a denial of natural justice where that exclusion results in the party being denied "a full opportunity to cross-examine upon, to comment on or to controvert the case against him" (at 508). Similarly, the exclusion of a party from cross-examination will not be justified if the party is not, nevertheless, afforded "a fair opportunity of commenting on it and of contradicting it" (Pochi at 509 citing Lord Denning MR in T. A. Miller Ltd. v Minister of Housing and Local Government [1968] 1 WLR 995). It was noted by Brennan J that an applicant's interest in receiving a fair hearing can be overridden only by another and superior interest, for example (as occurred in that case), the interest of the public in protecting police sources (at 511). 94It is true, as contended for by the respondent, that there is a factual distinction between Pochi and the present case, given that the applicant's lawyers in Pochi were precluded from consulting with their client about the evidence presented in his absence. Brennan J specifically referred to counsel in Pochi not being excluded and, hence, it may be assumed that that fact played some role in his decision. We do not consider, however, that this consideration should result in a distinction being drawn between Pochi and the present matter in the manner contemplated by the respondent. Brennan J stated (at 508) that the exclusion of a party from a hearing which affects his interests, even if his legal advisers are permitted to remain, would, in the absence of statutory authority, be an indefensible denial of natural justice. 95What was central to the ruling by Brennan J in Pochi to exclude the applicant was the nature of the evidence given and its public interest implications. No such factor may be found in the present case. The only basis for the exclusion of the appellant that may be gleaned is that the appellant may have received some advantage in hearing the respondent's evidence given in cross-examination by the appellant's counsel. (Putting aside the merit of this consideration as a factor in excluding the appellant in this case, it cannot be said to be of the same cogency as the factors taken into account in Pochi. It is of a distinctly different character and nature (that is, it is of significantly less force)) 96In any event, it cannot be said, in the present case, there existed particular or special circumstances warranting the exclusion of the appellant (in fact, he was excluded for the whole of the respondent's evidence) or that allowing counsel for the appellant to disclose the details of the evidence from which he was excluded, as opposed to allowing him to remain present, afforded the appellant, as described in Pochi, a "full opportunity to cross-examine upon, to comment on or to controvert the case against him" (Pochi at (508) per Brennan J). Apart from the appellant being afforded the opportunity to provide instructions to his lawyers so as to permit a full and proper opportunity for the oral evidence, per se, of the respondent to be controverted as the evidence unfolded and accumulated, his presence would have been appropriate to deal with issues such as body language, inflections of voice or other nuances in the evidence; some of which stimulated an objection by the appellant's counsel at the commencement of the respondent's case. (None of this discussion deals, of course, with the question of waiver, to which we will return.) 97The respondent submitted, furthermore, that the observations of Brennan J in Pochi should be read with some circumspection in light of the decision of the High Court in SAAP. 98In SAAP, the High Court discussed the approach at common law to natural justice rights. In that case, an Iranian citizen who had applied to the Administrative Review Tribunal ("ART") for a review of a decision of the Minister not to grant her a protection visa was asked to leave the room whilst evidence was given by her daughter. The ART subsequently raised with the applicant several matters about which the applicant's daughter had given evidence which were potentially adverse to her case, and invited the applicant to respond orally. Ultimately, the ART rejected the application for review based, in part, on information obtained from the evidence given by the applicant's daughter. 99On appeal to the Federal Court (in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577), Mansfield J assumed that the rules of procedural fairness at common law applied to the decision making process of the ART. His Honour concluded that those common law rules were not breached, observing (at [43]): ... The applicant had an opportunity to put her case, and was aware of the matters which were of significance to her case which emerged from the evidence of her elder daughter. She also had an opportunity of responding to those matters, partly by what was put to her during the hearing and partly by being able to make submissions about those matters following the hearing... 100The majority in SAAP (McHugh, Kirby and Hayne JJ) determined the appeal upon the basis that the procedure adopted by the ART breached the requirements of s 424A of the Migration Act (see McHugh J at [77]; Kirby J at [154] adopting the decision of Hayne J; and Hayne J at [203]). The decision of the ART was declared invalid. 101In consequence, McHugh and Hayne JJ found it unnecessary to consider the general requirements of procedural fairness. Kirby J, in contrast, commented that, whilst it was unnecessary to reach any final conclusion on the availability of a complaint of procedural fairness under the common law in the circumstances of the case, he was inclined to believe that procedural unfairness had occurred. Relevantly, his Honour found (at [171] - [172]): 171. Having regard to the conclusion on the statutory issue, it is unnecessary, in the circumstances of this case, to reach any final conclusion on the availability of a complaint of procedural fairness under the general law and, if available, to decide whether that complaint was made out. However, in passing this issue by, I would not wish it to be thought that I regarded the appellants' complaints under the general law as lacking substance. 172. An analysis of the sequence of the proceedings before the Tribunal and what the Tribunal member told the first appellant in Woomera alongside the reasons of the Tribunal in this case inclines me to the belief that procedural unfairness, outside the requirements of s 424A, occurred in this instance. It may have arisen because of the pressures of time imposed on the Tribunal as evident in the final exchange between the Tribunal and the first appellant and her agent. However that may be, it is certainly open to interpret that exchange as being a promise to fulfil the kind of obligation that s 424A envisages. In the event, there was no communication between the end of the hearing and the decision of the Tribunal six weeks later, in writing or otherwise. Section 424A was, as the Federal Court found or assumed, breached. 102It was found by Gleeson CJ, in his minority judgment, that the case was governed by the rules of procedural fairness and not by s 424A (at [22]). However, his Honour concluded that there had been no successful challenge to the first instance decision on procedural fairness grounds. Dismissing the appeal, his Honour stated (at [14]): The reasons given by Mansfield J for concluding that there was no want of procedural fairness are compelling. No successful challenge has been made to that aspect of his Honour's decision, which was accepted by the Full Court. However, in this Court the first respondent challenged the acceptance, both by Mansfield J and the Full Court, of the proposition that there had been a contravention of a requirement of s 424A. The basis of this challenge was that s 424A did not speak to the circumstances that existed at the hearing, and it was the rules of procedural fairness, not s 424A, that governed the conduct of the Tribunal Member in those circumstances. The competing view, accepted by Mansfield J and the Full Court, is that s 424A operates before, during and after a hearing, and must be complied with if the situation it addresses arises at any time from the making of the application for review up to the final decision. 103Gummow J held that what had occurred at the ART did not enliven s 424A (at [124]). Further, his Honour found that, in the circumstances of the case, given the applicant was given the opportunity to contradict as to particular aspects of the evidence which were adverse to her claim, the applicant was not denied procedural fairness (at [140]). His Honour found: In short, the requirement that the first appellant withdraw from the hearing room during the questioning of her elder daughter did not, as it transpired, deprive her of the opportunity to learn of material adverse to her claim or to comment upon it. 104It follows that the majority in SAAP found that the exclusion of the applicant was a breach of the requirements of the Migration Act and, therefore, did not make findings as to whether there had been a breach of procedural fairness in the circumstances. As we have noted previously, there was no such statutory right in the present case. SAAP and the present case are, on that basis, factually distinct. 105In considering the issue of procedural fairness, Gummow J held, in dissent, that the exclusion of the applicant had not constituted a denial of natural justice (in contrast to the view reached by Kirby J). The finding of Gummow J was based upon his Honour's view that, "as it transpired", the applicant had been provided with an express opportunity to respond to the evidence from which she was excluded which was adverse to her claim (Gleeson CJ, although satisfied the requirements of procedural fairness applied, did not actually make a pronouncement (by his final order) on whether there had, in fact, been a denial of procedural fairness in that case). There are differences between the factual circumstances considered by Gummow J and the present matter. Whilst counsel for the appellant was given the opportunity by Ritchie C to consult with his client prior to the appellant commencing to cross-examine the respondent's first witness, it is not apparent, as earlier noted, that any further steps were taken by the Commissioner to ensure the appellant was aware of the issues arising during the course of the hearing undertaken in his absence. The Commissioner did not advise, as in SAAP, of any particular issues arising from the respondent's evidence that the appellant should address, and it is not apparent that any further opportunities were provided for counsel to further consult with his client as to the balance of the witnesses. 106In any event, it is difficult to understand why, as contended by the respondent, the decision in Pochi ought to be viewed with circumspection in the light of the decision in SAAP. The findings made by Kirby and Gummow JJ (albeit in obiter and dissent respectively) as to whether there had been a denial of procedural fairness were based upon their Honours' views as to whether the applicant had been afforded an adequate opportunity to contradict the evidence given against her. That approach does not limit (but actually conforms to) the principles enunciated by Brennan J in Pochi in this respect. As we have mentioned, the factual circumstances differ here from both Pochi and SAAP. 107The respondent also placed reliance upon the decision of Wilcox J in Australian Postal Commission v Hayes and Another [1989] FCA 176; (1989) 23 FCR 320 in contending that, had the appellant been allowed to remain present in the proceedings for the presentation of the respondent's evidentiary case, the respondent would have suffered a denial of procedural fairness. We do not consider that conclusion may be reached in the particular circumstances of this case (as we will further discuss) or upon the basis of that authority. 108In Hayes, Wilcox J considered an application to review a decision of the AAT whereby it was directed that a film in the possession of the applicant be shown to the second respondent at the commencement of her evidence in chief. In the proceedings before the AAT, there was an issue between the parties as to the extent of the injuries suffered by the second respondent. The applicant desired to confront the second respondent in cross-examination with the film which, it was alleged, documented her physical abilities during the period she was said to have been suffering from injuries. It was held by Wilcox J that, because, in the proceedings before the AAT, much might have depended upon the credit of the second respondent and that her credit would be tested if the film was shown to her during the course of (as opposed to prior to) her cross-examination, the direction given by the AAT denied the applicant procedural fairness because it so fettered the proposed cross-examination of the second respondent that the evidence could not be properly tested. 109It was the submission of the respondent that the present case was analogous to the situation in Hayes, because, as would have occurred if the second respondent in that matter had been permitted to view the film prior to being cross-examined, the appellant, had he been permitted to remain present, would have been afforded an unfair advantage in knowing the respondent's case. That submission is illogical on two levels. First, the appellant had the respondent's case in writing prior to the hearing before the TAB. The only evidence which the appellant had not seen was the supplementary evidence given viva voce by the respondent's witnesses. It is difficult to accept that, in order to prevent some unfair advantage, the appellant should have been prevented from knowing that supplementary evidence in circumstances where he already had access to the written evidence upon which it was based. That conclusion is consistent with the discussion in Hayes at [27], where Wilcox J noted the Tribunal's statutory obligation to give all parties a reasonable opportunity to present their case was paramount and, whilst there may be exceptional circumstances which justify the temporary suppression of a document or particular piece of evidence, openness via the full and early disclosure of all material documents is ideal. 110Secondly, the respondent's contention, in this respect, becomes more implausible when a closer analysis is undertaken. It is material that, in the present matter, what the appellant was deprived of, when absent from the hearing room at the direction of the TAB, was the ability to know the responses of the respondent's witnesses to his own questions (asked through his counsel in cross-examination) about the materials already filed (and any new evidence which may have arisen from the responses given to his counsel's line of questioning). If the circumstances in the present case were analogous to those in Hayes, and the respondent had a piece of evidence which it did not wish the appellant to see (equivalent, for example, to the film in that case), that issue would manifest only at the time when the appellant was called to give his evidence, and not during the respondent's evidentiary case. 111In considering the issue of procedural fairness, a crucial question (to which we have referred throughout this judgment) is whether the appellant was afforded a fair opportunity to correct or contradict any relevant evidence prejudicial to him (that question was referred to by Wilcox J in Hayes at [18], citing Kioa at 569 per Gibbs J). What is at issue in the present case is how the direction of Ritchie C to exclude the appellant affected his capacity to cross-examine the respondent's witnesses through his counsel and to have a full opportunity to contradict the respondent's evidence. Hence, when seen in this light, if Hayes is authority for the principle that respondents in proceedings are entitled to procedural fairness (which can not be denied), that is merely a gloss, in the circumstances of the case, upon the true issue. In any event, even if it could be said that the appellant would have stood to gain a forensic advantage over the respondent if he had been allowed to remain present to hear the respondent's evidence, the gravity of the denial of procedural fairness suffered by the appellant, on balance, outweighed any such denial which may have been suffered by the respondent. 112Hayes may be contrasted to the decision in Kingscape Holdings. In that matter, the Western Australian Industrial Relations Commission heard an appeal from the decision of a single Commissioner. One of the grounds of appeal raised by the appellant corporation was that the Commissioner had erred in law and denied the appellant natural justice by ordering the appellant's instructing officer from the Court prior to and for the duration of the hearing of the respondent's case. The respondent (who was the applicant at first instance) had sought an order that the officer be excluded from the proceedings during cross-examination of its witnesses because matters of credibility would arise and the officer was an active participant in the matter. 113In its decision on appeal, a Full Bench of the Commission referred to a "set of principles" (at [23]) which had developed from the civil and criminal law in relation to the exclusion of parties from court or tribunal hearings. Relevantly, the Commission stated (at [24]): (a) There is no rule of law in this jurisdiction requiring the exclusion of witnesses if the Commissioner has not exercised its discretion to make an order. ... (d) Whilst there is doubt about whether the parties may be ordered from the court if they behave improperly, in practice in other jurisdictions they usually remain or, if the party is not an individual but a corporation or organisation, a person is entitled to remain to instruct counsel or conduct his or her own case (see Charnock v Dewings [1853] EngR 580; (1853) 3 C & K 378, 175 ER 597; Selfe v Isaacson [1859] EngR 144; (1859) 1 F & F 194, 175 ER 688; and Taylor "Law of Evidence", 12th Edition (1931) para 1400 n (h)). ... (h) In The London Chartered Bank v Lavers (1855) SCC (NSW) 884 (selected by Gordon Legge J), the Full Court held that a party to a cause who contemplates giving evidence for himself has a right to remain in court for the conduct of his case and is not liable to exclusion as are other witnesses. That is a view generally taken in this Commission. ... (i) If a party, or someone competent to instruct, is excluded, except for bad behaviour, it would generally be found on authorities such as The London Chartered Bank v Lavers (op cit) that, since that person is not present to hear the case against him or her, the exclusion of that person will effect a denial of natural justice, because the party is not present to hear the case against him. Further, in such a case, it is not certain that the rule in Stead v State Government Insurance Commission [1986] HCA 54; [1986] 161 CLR 141 (HC) would apply. 114It was found by the Commission in Kingscape Holdings that, although the appellant's instructing officer was excluded from proceedings, the appellant corporation had not suffered a denial of natural justice because the appellant itself was not denied the opportunity to be present to hear the evidence against it through another of its officers or employees. However, the Commission noted (at [27]), relevantly to the present case, "[t]he exclusion of an individual would not be so readily justified." 115We will pause to briefly consider some of the authorities relied upon by the Western Australian Industrial Relations Commission in support of these conclusions. 116In Charnock v Dewings [1853] EngR 580; (1853) 3 C & K 378, 175 ER 597, it was held by Talfourd J that, on constitutional grounds, he had no authority to order the defendants to leave the court as long as they behaved with propriety. In Selfe v Isaacson [1859] EngR 144; (1859) 1 F & F 194, 175 ER 688, it was held by Byles J that an application to have witnesses ordered out of court is to be determined at the discretion of the Court, however, the plaintiff has a right to be in court to instruct his counsel. 117In London Chartered Bank v Lavers (1855) 2 Legge 884, it was held by Stephen CJ, Dickinson and Therry JJ that a party to a cause who contemplated giving evidence for himself had a right to remain in court for the conduct of his case. 118In Stead, as noted earlier, it was the position of the High Court that not every departure from the rules of natural justice at trial will entitle the aggrieved party to a new trial (at 145). A new trial will be justified in circumstances where it can be said that, had the requirements of natural justice been complied with, a different conclusion may have been reached by the trial judge. That determination, it was held, is no easy task, particularly in circumstances where the denial of natural justice involved the acceptance or rejection of the testimony of a witness at the trial (at 145 - 146). 119We should also mention that we were taken to the authority of SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; [2007] 232 CLR 189. In that case, in circumstances similar to those which occurred in Grimshaw, the High Court heard an appeal from a decision of the Full Court of the Federal Court involving a family of Lebanese citizens whose applications for Australian protection visas had been refused. After commencing proceedings for a review of the decision to refuse their visas before the Refugee Review Tribunal ("RRT"), the RRT invited the family to appear before it, pursuant to s 425(1) of the Migration Act. On the advice of a rogue, who falsely claimed to be entitled to practice as a solicitor and migration agent, the family did not attend the RRT hearing. By s 426A of the Migration Act, the RRT was entitled, in circumstances where an applicant was invited to appear pursuant to s 425(1) but did not appear, to make a decision on the application to appear before it. Ultimately, in its reasons, the RRT relied on the family's failure to appear as a ground for rejecting the applications for review. 120It was found (in a joint judgment of the Court - Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ) (at [48] - [49]) that the provisions of the Migration Act obliging the RRT to invite applicants to appear before it to give evidence and present arguments on the issues arising in relation to the decision under review, and empowering the RRT to make a decision on the review in the absence of an appearance, were centrally important to the legislative scheme set out in Div 4 of Pt 7 of that Act for the conduct of reviews. Further, by s 422B, Div 4 "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters [the tribunal] deals with". The Court went on to hold (at [51]) that the fraudulent conduct of the rogue in his dealings with the family had impaired the operation of the "critically important natural justice provisions" contained in Div 4. It was found, ultimately, that the conduct of the rogue had meant the RRT "was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud 'on' the Tribunal" (at [51]). The RRT was ordered to redetermine the review of the Minister's decision to refuse the family's visas, which included giving the family a fresh invitation to appear before it. 121It was observed by the High Court (at 53]): ... In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations. 122The respondent submitted that the High Court had observed that the appeal had turned upon the particular importance of the provisions of the Migration Act and, therefore, that the case of SZFDE was distinguishable from the present case in which counsel for the appellant at first instance stated that he had no objection to the appellant not being present during the hearing whilst the respondent called its evidence. We will return to consider this submission when we elaborate on the authorities relevant to the question of waiver. For present purposes, however, we are of the view that SZFDE is of little assistance in resolving this matter. That case turned upon s 422B of the Migration Act, by which, it was found, Div 4 of Pt 7 of that Act was an exhaustive statement of the requirements of natural justice. In addition, the absence of the party from the proceedings in that case was as a result of the conduct of a rogue.

Preliminary Conclusion Regarding Ground One 123Drawing together the strands of the foregoing analysis of the statute conferring power upon the TAB, authority bearing upon the requirements of procedural fairness at common law (and in particular statutory contexts) and the particular circumstances of this matter (as discussed in that analysis and as further discussed below), we consider that the procedure adopted by the TAB whereby the appellant, in person, was excluded from the proceedings during the taking of the evidence of the respondent, whilst, nonetheless, represented by counsel (who was permitted some opportunity to discuss the respondent's evidence with the appellant) would constitute, subject to any waiver by the appellant through his counsel, a denial of procedural fairness. 124We have reached our conclusion for the following reasons (as noted above, when read in conjunction with the foregoing analysis): (1) The requirements of procedural fairness governed the proceedings before the TAB. There was no exclusion or contraction of those requirements by the Act (or in consequence of the adoption, by virtue of s 11(2), of certain provisions from the IR Act). In particular, in the circumstances of this matter, s 17 did not relieve the TAB from the adoption of those requirements when taking the evidence in this matter, particularly where, in the circumstances of this case, the interests of justice required the appellant to receive a full opportunity to test the evidence presented against him. The appellant had a significant interest in the maintenance of his employment (and/or the hearing of his application to restore that employment in procedurally fair proceedings). The evidentiary contest, being disciplinary in nature, required formal proceedings in which the appellant would be afforded the opportunity to test the serious allegations which had been levelled against him as a basis for his dismissal. There lay at the centre of the factual controversy competing evidence between the appellant and Mr Kemp such that the resolution of at least a substantial part of the factual controversy required an assessment to be made of the voracity of Mr Kemp's evidence. The TAB seemed to recognise, in the broad, many of these considerations in the procedures it adopted, other than, in our view, the decision which led to the instance controversy whereby the appellant was excluded from the proceedings during the taking of the respondent's evidence. (2) By virtue of s 11A of the Act, the appellant was a party to the proceedings before the TAB. His interest was greater than that of a member of the public who, in any event, may have only been excluded under the provisions of s 162(2)(b) of the IR Act (which was incorporated as a procedural requirement by virtue of s 11(2) of the Act), where such a procedure was required by the dictates of justice. No such reason was articulated by the TAB in the present case. Indeed, it would appear that the TAB acted upon a perception, albeit mistakenly, that the procedure it adopted for the taking of evidence was a conventional one. (3) The practice and procedure in proceedings under Pt 7 of Ch 2 of the IR Act (or, for that matter, the practice and procedure adopted in unfair dismissal proceedings under Pt 6 of Ch 2 of the Act) is that the applicant will be physically present during the whole of such proceedings, whether represented by counsel or not, unless specific and exceptional orders are made to close the proceedings by virtue of confidentiality requirements or the like. Those procedures in industrial proceedings occur, of course, in circumstances where the case for the applicant will, to employ the words of s 16(1) of the Act, "be presented first". We are not aware that any different procedure has been adopted over time in proceedings under the Act, such that the conventional approach is for the applicant to be excluded when the respondent presents its evidence at the commencement of the proceedings. Rather, it would appear in this case that the Commissioner has conflated the industrial and disciplinary proceedings under the Act such as to, in essence, treat the appellant as if a respondent to the proceedings for the purposes of making an assessment as to his exclusion during the taking of the respondent's evidence. In our view, and contrary to the approach adopted by the Commissioner, the provisions of the Act (requiring the respondent to present its case first) heighten, except in particular circumstances where the dictates of justice require, the necessity for the appellant to be permitted to remain present at all stages of the proceedings before the TAB in the interests of fairness. (4) The provisions of s 16(1) of the Act will invariably require the respondent's evidence to be presented in its entirety before the appellant gives or calls evidence in reply. That subsection will also require the appellant to controvert, to the extent required, the respondent's evidence by cross-examination before the appellant goes into evidence. By s 16(2) the appellant, nevertheless, bears the onus of proving any ground upon which he relies. In these circumstances, the presence of the appellant during the course of the respondent's case does not represent a forensic advantage, as contended by the respondent, but presents the only real and practical (or full) opportunity for the appellant to cross-examine, comment upon and controvert the case brought against him. In any event, if there be some forensic advantage, the interest in the respondent removing it could not have transcended the appellant's interest in a procedurally fair hearing. (5) It cannot be concluded, as contended for by the respondent in reliance on Hayes, that, had the appellant been permitted to remain in the proceedings, the respondent would have suffered a denial of procedural fairness. That submission was illogical for two reasons. First, the appellant had the respondent's case in writing prior to the hearing before the TAB; the evidence which the appellant was prevented from knowing, in part, was the supplementary evidence of the respondent's witnesses given in viva voce form. It is difficult to understand how the exclusion of the appellant prevented him gaining an unfair advantage in this respect, given the supplementary evidence of the respondent's witnesses was based upon, and supplementary to, the written material with which the appellant had already been provided. Further, and secondly, if, in the present case, there was an equivalent to the video evidence the subject of Hayes, that would have arisen as an issue at the time the appellant gave his evidence (which, given s 16 of the Act, was after the conclusion of the respondent's evidentiary case). What the appellant was, in fact, denied, as a result of being excluded from the proceedings, was the ability to know the responses of the respondent's witnesses to his own questions about the written material (and any new material which may have arisen from the responses given) asked through his counsel in cross-examination. Notwithstanding that the appellant may have gained some advantage in hearing the respondent's case, the crucial question, when considering the issue of procedural fairness, was whether the appellant had been afforded a fair opportunity to correct or contradict evidence prejudicial to him. That opportunity was restrained when the appellant was excluded from hearing the respondent's witnesses during cross-examination even though counsel representing (as we will discuss below). In any event, even if it could be said that the appellant would have stood to gain an advantage if he was allowed to remain present to hear the respondent's evidence, the gravity of the denial of procedural fairness suffered by the appellant, on balance, outweighed any such denial which may have been suffered by the respondent. (6) To this consideration may be added the particular circumstances of the conduct of the first instance proceedings. Putting aside the obvious issue of answers given by the respondent's witnesses during cross-examination, the appellant did not witness the evidence in chief of the respondent's witnesses because the TAB permitted vive voce evidence from each of those witnesses in his absence. Further, the evidence in the proceedings required an examination, in close detail, of two encounters between the appellant and Mr Kemp from which serious allegations were made against the appellant arising from both the words spoken and the actions taken. His defence, in part, involved an exploration of whether Mr Kemp had acquiesced or consented to the encounter between them. In order for a fair hearing, in which the appellant could contradict the case brought against him, he needed to have the opportunity to observe the case brought against him, including the account given by the respondent's witnesses in cross-examination as to the words spoken, how they were spoken (in terms of inflections) and descriptions of the physical positions and actions of the appellant and Mr Kemp. (7) The appellant had a right to be represented by counsel (s 166(1) of the IR Act by virtue of s 11(2) of the Act). That representation of the appellant during the course of the proceedings, in his absence, would have, to some extent, alleviated the unfairness of the procedure adopted by the TAB. The same must be said of the opportunity afforded to the appellant by the TAB for counsel to speak to his client about parts of the respondent's evidence during breaks in proceedings (although it is difficult to understand what, if this procedure were adopted, could have constituted the reasons for the procedure adopted by the TAB to exclude the appellant, given that at least some of the respondent's evidence was, in any event, communicated to the appellant). (8) In accepting those matters, however, we do not consider that the procedure adopted by the TAB was fair and provided the appellant the requisite full opportunity to contradict the respondent's case in the manner contemplated in the authorities which we have discussed earlier in this judgment. (9) This is not a case where an officer of a corporation who may intend to give evidence may be excluded from giving instructions to counsel where other officers of the corporation may properly do so. The appellant was the only person who could have provided instructions to counsel. Those instructions were required to deal with, as we have noted, a contentious, factual situation involving an interaction between the appellant and Mr Kemp in the presence of witnesses on the platform at Hornsby station, and, later, alone in the driver's cabin of the train whilst it was stopped at Chatswood station. As counsel for the appellant complained during the course of the proceedings before the TAB, this involved more than a reiteration by the respondent's witnesses of their written statements, but an elaboration involving, in some instances, nuances (such as inflections) and the close testing of aspects of the respondent's evidence in cross-examination where responses were received which required a fresh examination of the evidence as it accumulated. (10) A reading of the TAB's decision reveals that a number of aspects of the evidence were contested, which aspects often involved a variety of considerations beyond the mere reiteration by witnesses of their statements (as noted in (9) above). Given the exclusion of the appellant, his counsel was required to grapple with those considerations in the absence of his client. The contested evidence went to the issue of consent and the extent of the appellant's actions. For example, the evidence of the respondent that the appellant had traced the letters "SS" on Mr Kemp's back on the platform at Hornsby station was contested between the parties. Similarly, it was denied by the appellant that, in the driver's cabin of the train whilst it was stopped at Chatswood station, Mr Kemp had said the word "don't" when the appellant had commenced massaging his shoulders and back, that the appellant had placed his hands below the belt line of Mr Kemp and kissed his cheek, and that the appellant had stood near to the doorway of the driver's cabin as opposed to behind the driver's seat when performing the massage. As noted, there were no witnesses to the incident which was said to have occurred inside the driver's cabin. In relation to those aspects of the evidence, Ritchie C made findings, based on the "balance of probability" (at [53] and [64] of that decision), in favour of the account provided by the respondent. (11) It is quite unfair to suppose that counsel will have to deal with those matters by some independent recounting to the appellant during any break in the proceedings. In any event, as the proceedings unfolded, it was not at all clear that the opportunity to take instructions, even at the level contemplated by the Commissioner, was consistently or completely available. Nor do we think that the requirements of procedural fairness are served by the appellant being deprived of an opportunity to hear the respondent's case in full before giving his evidence, in circumstances where the Act expressly contemplates that the usual order of adversarial proceedings will be reversed (s 16(1)). The Commissioner did not remedy the unfairness by identifying during the course of the proceedings critical aspects of the respondent's case about which the appellant may reply in his evidence (or, for that matter, in counsel's final submissions).

The Waiver Question 125The question of whether a party will be taken to have waived any common law or statutory right to be present during proceedings is, from a reading of the relevant authorities, like the question of whether such a right exists, dependent upon the facts of the particular case. 126In relation to the relevant facts bearing upon this question in the present case, we have earlier set out the extract from the record of proceedings in which the Commissioner raised with the parties the issue of whether or not the appellant should be present in the hearing room whilst the witnesses for the respondent gave evidence. The relevant section of that extract, in relation to the question of waiver, recorded a response given by counsel for the appellant to the Commissioner when asked if he had any view on the appellant leaving the hearing room: I don't have any objection to Mr Byrne stepping out of the room but can I just say this, this witness [Mr Kemp] has provided a witness statement. ... but if he's giving additional evidence I may need to seek instructions. 127After a further objection by counsel for the appellant in respect of a separate piece of evidence, the solicitor for the respondent concluded her examination in chief of the respondent's first witness. The TAB then took the luncheon adjournment to enable counsel for the appellant to speak to his client. 128The respondent submitted that, regardless of what view the Court preferred on the issue of whether the appellant was denied natural justice by being excluded from part of the proceedings before the TAB, in any event, the appellant waived his right to complain about a denial of natural justice. It was submitted that, in stating he did not have any objection to the appellant being excluded from the hearing room, counsel for the appellant at first instance had waived the appellant's rights to complain about a denial of natural justice. 129In respect of when the appellant's counsel later indicated that he thought his client "should be here to hear the question and hear the answer", the respondent submitted that the raising of that matter by the appellant's counsel was not made in the context of a general revisitation of his prior agreement that the appellant be excluded from the hearing room, but, rather, it was directed to an objection being raised to a specific question which was not pressed and no further evidence was sought from Mr Kemp in examination in chief. 130In contrast, it was submitted by the appellant that his exclusion from the proceedings at the TAB was at the instigation of Ritchie C and that what thereafter occurred was neither waiver nor acquiescence, but, rather, compliance, following unsuccessful protest by counsel for the appellant at first instance to an erroneous direction from the Commissioner. The appellant further submitted, in the alternative, that the ignorance of his counsel at first instance to the natural justice requirements and the provisions of the Act, in particular s 11A, disabled counsel from being able to waive the appellant's entitlement to be present in any event. 131In Escobar, to which we have earlier referred in a different context, Samuels JA considered whether counsel could waive a procedural or other forensic right. In that decision, his Honour referred to Mayes v Mayes [1971] 1 WLR 679; [1971] 2 All ER 397 which was a case involving a wife's complaint of desertion. After the wife's advocate had opened her case and the wife had given evidence, the justices retired and, upon their return, dismissed the complaint. The wife appealed on the ground that the justices should have given the wife's advocate the opportunity of addressing them before stopping the case. An appeal was allowed with the Court observing: ... that where settled practice or rules of natural justice give a person a right to be heard "it must be wrong for the court to proceed to a decision without positively affording that right and that it would be wrong for the Court to proceed relying upon the advocate in question to assert his rights" ... 132The Court in Mayes found it unnecessary to consider the question of whether a right to address the Court could be waived. However, Simon P (at 684; 400 - 402) said, in obiter: But I am inclined to think that the general principle is that a rule of natural justice which goes to the very basis of judicature (as I think this does) cannot be waived. You cannot by waiver convert a nullity into a validity. 133Samuels JA, after referring to Mayes, stated (at 62) (in Escobar): With respect, I do not think that this proposition is sound. Counsel can always, I would have thought, waive, in the sense of not wishing to exercise, some procedural or other forensic right. If he does so voluntarily, and with knowledge of the options open to him, it follows that he has not been deprived of any right or privilege and hence has not been denied justice. In the case before us the question to my mind is whether counsel for the worker was deprived by the judge of his right to address, or whether he simply chose not to pursue it. The worker, of course, contends for the first of these possibilities, and submits that the deprivation is made out because, as is clear, the learned judge did not explicitly offer counsel the opportunity to address. I do not consider that Mayes is persuasive authority for the general proposition that a denial of natural justice is established because Manser J did not in terms formulate the offer to hear counsel in address. Each case of this kind must turn on its own facts. 134Kirby P did not address the question of whether it was possible for counsel to waive a procedural right, apart from posing the question and observing that he did not think it was possible (at 56). Similarly, whilst Glass JA recognised that certain remarks by counsel could amount to a positive waiver of a right, in light of the conclusion reached, and found it unnecessary to determine that question. 135In respect of the extract from the judgment of Samuels JA in Escobar set out above, it was submitted by the appellant that an effective waiver of the entitlement to be present required knowledge of the entitlement and an intention to waive it on the part of counsel. Neither the appellant's counsel at first instance nor Ritchie C, it was submitted, were aware that the appellant had an entitlement to be present during the proceedings, including the provision made in s 11A of the Act. Therefore, no valid waiver could have been made in any event. 136There have been subsequent cases which have applied the reasoning of Samuels JA in Escobar. In Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW (2005) 145 FCR 523 at [87], it was held by a Full Court of the Federal Court that the failure of a party to object to a course of action adopted by the RRT could amount to a waiver in circumstances where the failure to object had not resulted in any prejudice to the party and the waiver was found to have been done voluntarily and with knowledge of the entitlements waived. 137Similarly, in Burwood Municipal Council v Harvey (1995) 86 LGERA 389, the Court of Appeal determined an appeal from the Land and Environment Court in which it was argued that the trial judge had erred in law and denied the appellant natural justice by excessively intervening in the proceedings at first instance. In that judgment, Kirby P observed (as obiter) (at 405) that a waiver of a procedural right may be possible provided it was conscious, and that the departure from "orthodox conduct" was not "so substantial, that notions of waiver have no application". It was further stated by Cole JA (at 416) that it will not be reasonable, in all circumstances, for a party to be held to have waived a right by reason of their silence or lack of protest. The following observations of Mahoney JA are also relevant (at 411): ... It is settled that, special cases apart, a party who otherwise would be entitled to object to what a judge has done, may waive that right of objection: see Vakauta v Kelly at 572, 577, 586. But in order to determine whether what was done in the particular case constitutes waiver it is necessary first to determine what is the nature of the waiver alleged and what is said to give rise to it. ... There was, of course, no express waiver and in my opinion it is not to be inferred from what was said and done that Mr Levy had the actual or subjective intention to waive. Therefore, if there is a waiver, it is one which is to be imputed to or imposed upon the Council. It is necessary to consider whether what took place warrants such a consequence being so imposed. ... 138The respondent also drew the Court's attention to the following authorities which had considered the observations of Samuels JA in Escobar. 139In MH6 v Mental Health Review Board (2009) 25 VR 382 the Victorian Court of Appeal considered an appeal from the Deputy President of the Victorian Civil and Administrative Tribunal who had directed that a patient's case be presented first, contrary to an indication given previously by the Tribunal's Registry and to the order in which written statements had been exchanged before the Tribunal hearing. Counsel for the applicant acceded to the Deputy President's direction. Hansen J dismissed the application for leave to appeal on a question of law against the Tribunal's order. The applicant contended that the Tribunal had erred in requiring him to give evidence first. In dismissing the appeal, their Honours observed (at [48] - [49]): [48] Moreover, both the tribunal and this court are entitled to assume that a party's legal representatives are aware of their client's basic rights and will seek to enforce them when they see fit. McInerney J in R v Lilydale Magistrates' Court; Ex parte Ciccone considered that one must impute to a party's solicitor and counsel the extent of knowledge of their client's legal rights "which a reasonably equipped solicitor and counsel would have". As Lord MacNaghten stated in Blackburn, Low & Co v Vigors: There is nothing unreasonable in imputing to a [litigant] all the information with regard to [proceedings] which the [barrister] to whom the management of [those proceedings] is committed possessed at the time and might in the ordinary course of things have communicated to [the litigant]. [49] Where a party is legally represented, a court or tribunal in ordinary circumstances is entitled to assume that the party's representative is fully aware of their client's rights. Here, the very likely explanation must be that counsel perceived no unfairness in the proposed course and for that reason took no objection. Any entitlement to have Austin Health's witnesses called first was consciously and effectively waived. 140The Court subsequently referred to a decision of Smith J in Weerappah v Nisselle [1999] VSC 249 where Smith J referred, with apparent approval, to the comments of Samuels JA in Escobar at [51]. Their Honours observed the following (at [52] - [53]), after having set out Samuels JA's observations to which we have already referred: [52] That view is consistent with academic writings. The authors of Judicial Review of Administrative Action state: It has been occasionally been suggested that the hearing rule is too important to be capable of waiver. There may be something in that suggestion to the extent that it relates to circumstances in which a person has been given no opportunity to be heard whatsoever. It is at least arguable that in such a case acquiescence should not preclude a person from challenging such a breach unless it results in delay which justifies exercise of the discretion to refuse a remedy. Usually, however, waiver is argued where a person has received some form of hearing but claims that it was inadequate. In this context there appears to be little doubt that a person can waive the right to full observance of the hearing rule if that is done voluntarily, and with knowledge of the entitlements waiver. [53] There is no reason in principle and no authority to doubt that full observance of the hearing rule may be waived. It follows that if, contrary to our conclusion and that of the judge below, the opportunity to be heard was inadequate, the course followed by the applicant's legal representatives constituted a waiver of any right to require the respondent's witnesses to first confirm the content of their witness statements and be cross-examined. 141The respondent relied upon the findings of the Court in MH6 to support its submission that, contrary to what was contended by the appellant, the Court would not, in determining whether a wavier of an entitlement had occurred, proceed upon the basis, in the absence of any evidence in support, that those acting for the appellant had made a mistake or were ignorant of the appellant's rights. 142Next, the respondent relied in support of its contention on the decision of a Full Court of the Federal Court in Thai v Commissioner of Taxation [1994] 53 FCR 252, in which the Court heard an appeal from a sequestration order made by a judge of the Court against the Estate of Mr Thai on a creditors petition presented by the Deputy Commissioner of Taxation. One of the issues that the Court was required to determine was whether Mr Thai was denied procedural fairness in a hearing before Einfeld J in circumstances where counsel for Mr Thai complained that he was not given an opportunity to address on the merits of evidence adduced by his client. The question that arose was whether, in the circumstances of that case, there was the denial of an opportunity to address by counsel. Their Honours referred to Samuel JA's observations (at 272 - 273) in Escobar: 143Their Honours concluded (at 273): If a conscious decision be made not to bring a procedural irregularity to the attention of the Court during the trial, but to reserve such matter to be raised on appeal, it may follow that there has been a waiver. However, having regard to the way in which events here unfolded quickly before the trial judge, it has not been shown, in our view, that counsel for Mr Thai consciously chose not to pursue his right to address. 144The respondent referred the Court to the case of In the Marriage of D J and M Y Collins (1990)14 Fam LR 162, in which a Full Court of the Family Court determined an appeal in which the trial judge had advised, after conferring with counsel for both parties, that he would not permit the taking of evidence after the end of an allocated final hearing date. No objection to that course was taken by counsel for the appellant at the end of the hearing or in final submissions, which were submitted five weeks after the hearing concluded. The respondent relied on the judgment of the Family Court as establishing the principle that a legal representative is not entitled to stand by until the final judgment is known and then, if its contents are unpalatable, attack the judgment on the ground that there had been a failure to observe a particular procedural requirement or opportunity to object to a procedural ruling. 145It was held by the Court (at 179): ... In any event, however difficult the task, it does not relieve counsel of the obligation to make his client's position clear to the court. No attempt was made by either counsel at any point to do that or to protest the matter at all, particularly in the closing stages when the problem could have been remedied so easily. The husband was represented by an experienced trial counsel who had presented his client's case and had cross-examined the wife and her witnesses at great length and with great vigour. He had shown no reluctance to object and to strongly argue evidential and procedural issues as they arose during the trial. It cannot, we think, legitimately be said that the husband or those representing him were overborne or that it had been made so clear to them that the die was cast that they were relieved of the normal obligation of making submissions or objections. In particular, if it was felt at the time that they were prevented from putting matters in cross-examination of the two translators or Mrs Mead, that should have been made clear to the trial judge; similarly with Mrs Chin's uncompleted cross-examination and the question of the husband's recall. As the High Court pointed out in the Vakauta case, counsel in civil proceedings cannot stand by, accepting a particular procedure, and later use that as a point of appeal if the result is adverse. Such a situation gives that party in effect a "free hit", that is, they can await the outcome and if it is adverse take the point. Such an approach is highly prejudicial to the wife. In a situation where no objection has been taken, she now finds herself in a position that the matter is raised on appeal and if successful will result in a new trial, carrying with it considerable further delays and a high level of expense. She was entitled to expect the husband's representatives to object at the trial if they did have an objection. Had they objected her counsel may have joined in such an application. 146Finally, the respondent referred the Court to the following passage from the judgment in Kesterson (at 9), which judgment was relied upon by the appellant in support of his contention that his exclusion from the proceedings before the TAB was a denial of natural justice: Like most other rights, the right to be present may be waived or forfeited by a party. A party may choose not to attend all or part of her trial, see Hill v. State, 290 Ga. 493, 494 (722 SE2d 708) (2012), or affirmatively waive presence during all or part of a proceeding, see Ward, 288 Ga. at 646. But because the right to be present in court is held by the party, the decision not to attend, or to waive attendance, must be made by the party, not by her lawyer alone. "The right [to be present] is waived if the defendant personally waives it in court; if counsel waives it at the defendant's express direction; if counsel waives it in open court while the defendant is present; or if counsel waives it and the defendant subsequently acquiesces in the waiver." 147It was submitted by the respondent that the appellant's reliance on the decision in Kesterson did not assist him, given that, on the basis of the above extract, his counsel at first instance either waived the right in open court with the appellant present and/or waived the right while the appellant subsequently acquiesced to the waiver, in effect, waiving his right to be present. 148We do not think that the authorities referred to us by the respondent detract from the principles established in relation to waiver in Escobar and subsequent cases. Indeed, the principles that emerged from the above cases led to the conclusion that each case involving the issue of waiver turns on its own facts. It is well established that a person can waive the right to full observance of "a right to trial conducted in accordance with the conventional methodology" if done so voluntarily and with knowledge of the entitlements waived. 149In this matter, as we have already observed, the exclusion of the appellant from the hearing was at the instigation of the TAB. There was no material available in the transcript of the proceedings that would allow a conclusion to be drawn that any party had knowledge or gave any consideration to procedural fairness requirements under the Act, particularly with regard to s 16. 150The appellant's exclusion was for the period of the taking of all the employer's evidence which included leading additional evidence in chief from Mr Kemp. This was in circumstances where the appellant relied on his evidence alone and his position is clearly distinguishable from that which may arise from a party who was, for example, a corporation. In our view, it would be necessary for there to be a clear and express waiver by counsel in order to abrogate the requirements of natural justice, particularly when the provisions of the Act are taken into account. The appellant would also need to be aware and consent to such waiver (such as s 16). 151We are unable to reach such a conclusion in this appeal. To the extent that it was submitted by the respondent that there was a waiver by counsel, on a proper reading of the transcript, in our opinion, the approach of counsel for the appellant was initially one of ambivalence (in the face of an active proposition advanced by Ritchie C). The question of the exclusion of the appellant was introduced, erroneously, by Ritchie C and, as we have discussed, upon a mistaken assumption as to the procedure which may properly be adopted in TAB proceedings. After the appellant had been excluded and the true effects of the appellant's exclusion became clear, counsel endeavoured to retrieve his exclusion. He did so in a way which made clear he objected to the exclusion. Even if a waiver was originally provided (and we do not think it was), there was no reason why it could not be revoked in the circumstances arising in the proceedings. The waiver could not be considered irreversible, as the dictates of procedural fairness required a flexible approach in order to ensure fairness. Thus, once counsel objected, it could not be concluded that a waiver had been given. Nor do we consider Ritchie C proceeded upon the basis that a waiver applied. 152Taking into account these matters, it would be unsafe, in our view, to conclude that counsel had waived the requirements of procedural fairness. We, therefore, find that a waiver had not occurred.

Conclusion as to Ground One 153In the circumstances of the case, it is not possible to conclude that compliance with the requirements of procedural fairness, that is, that allowing the appellant to remain present throughout the course of the proceedings would have made no difference to the course of the proceedings before the TAB and, ultimately, the decision reached by Ritchie C. In such circumstances, a retrial may be warranted: Stead at (145) and Escobar at (57-58). This is particularly so given that, as noted, the decision of the Commissioner hinged upon the acceptance of the testimony of the appellant against that of the respondent and, in particular, Mr Kemp. 154As noted by Gaudron and Gummow JJ in Aala, "[t]he concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from those procedures" (at [59]). 155As we have noted, the exclusion of the appellant not only deprived him of a full opportunity to hear the evidence brought against him by the respondent, but also an unfettered opportunity to instruct his counsel as to the content of that evidence. That amounted, as we have previously observed, to a denial of a full opportunity to contradict (at least) the respondent's case. Such a deprivation of right will result in the decision at first instance being vitiated. 156Furthermore, s 23(1) of the Act did not prescribe what factors the TAB was to have regard to in reaching its decision. Notwithstanding that s 11(2) of the Act brought in the provisions of the IR Act, the jurisdiction of the TAB appears to be wide. It is certainly possible that a different conclusion may have been reached by Ritchie C as to the evidence which was contested and that, as a result, taking into account mitigating factors including the appellant's length of service with the respondent, an alternative conclusion could have been reached, particularly one involving a lesser penalty. 157In the circumstances, we are of the view that the appropriate order in the present case is that the appeal be allowed. This conclusion will be further supported by the conclusions we shall reach in respect of ground two. Further, the nature of the denial of procedural fairness, involving, as it did, a denial of a proper opportunity to challenge the evidentiary case for the respondent by the appellant is such as to warrant an order for a remitter in the form of a retrial: Stead at (146) and Escobar at (58) and (59).

Ground Two 158As noted earlier, there were a number of issues raised by the appellant in relation to its contention that Ritchie C failed to give reasons or adequate reasons for his decision at first instance. There was, however, one issue for which, in our mind, consideration on appeal is warranted. That is the issue which was referred to during proceedings as the "Thai man incident". 159The "Thai man incident" related to a conversation, referred to in the particulars of the second allegation against the appellant (set out above), which had occurred between the appellant and Mr Kemp whilst the appellant was performing a massage on Mr Kemp. In particular, the incident was a reference to a comment made by Mr Kemp in response to a comment from the appellant about his own sexual capacity in which he stated "I know a Thai man who can cum up to five times a day. I have seen him do it". 160Initially, the Thai man comment was omitted from Mr Kemp's original statement provided to the respondent in relation to the incident dated 14 July 2010. However, Mr Kemp subsequently admitted to making the comment in a (recorded) conversation with Michael Crimmins, the investigator in charge of the disciplinary investigation into the appellant's conduct. That admission was repeated by Mr Kemp during cross-examination by counsel for the appellant at first instance. It was also later stated by Mr Crimmins, in cross-examination, that the admission of Mr Kemp had caused him to cease pursuing the sexual harassment allegation against the defendant. 161In the decision at first instance, Ritchie C made reference on several occasions to the "Thai man incident". In the following excerpt of the decision (at [55]), the Commissioner appeared to acknowledge that the "Thai man incident" was relied upon by the appellant in support of his contention that there was a mutuality of conduct between the appellant and Mr Kemp, and that the failure of Mr Kemp to report the comment in his initial statement raised an issue as to character: The appellant made comment about his own sexual health and Mr Kemp made a reply concerning a Thai man. The respondent's investigator Mr Crimmins did not pursue the sexual harassment allegation because of this response. Mr Darams in his final submissions made comment about this response from Mr Kemp, firstly about his failure at first instant to report that he did say it thereby hiding it from the respondent's knowledge and secondly it showed he was comfortable with the conversation. Mr Kemp stated that at first instant when he reported the incident he was still stressed. 162Following the reference to the incident at [55], there was no further consideration of or reference to that issue by Ritchie C. The incident was not referred to by the Commissioner in giving reasons for his decision to refuse the appellant's appeal (including credit issues), and no explanation was given as to how the evidence of the "Thai man incident" was evaluated by the Commissioner in coming to that conclusion. 163Considering the significance of a failure by a judge to provide reasons, the following extract from the judgment of McColl JA in Ainger v Coffs Harbour City Council [2005] NSWCA 424 at [48] is relevant: The primary judge was not obliged to spell out every detail of his process of reasoning (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 171, 182), however he was obliged to expose his reasons for resolving a point critical to the contest between the parties: North Sydney Council v Lygon (1995) 87 LGERA 435 at 442 per Kirby ACJ; Soulemezis at 270 per Mahoney JA, at 280 per McHugh JA. This obligation lay upon him to enable the parties to identify the basis of his decision and the extent to which their arguments had been understood and accepted: Soulemezis at 279 per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 at [129] it was necessary that the primary judge " 'enter into' the issues canvassed and explain why one case was preferred over another". 164In the present case, the "Thai man incident" was, as stated by the Court in Ainger, an issue which was critical to the contest between the parties. The incident was clearly an issue of significance, which had the potential to weigh upon the question of whether there was misconduct by the appellant and, if so, the gravity of any such misconduct given that it had a bearing upon whether or not there was mutuality of conduct between the appellant and Mr Kemp. This is so because, as was submitted by the appellant, the comment by Mr Kemp would have a bearing upon a consideration of whether Mr Kemp may have consented to the actions of the appellant. The issue also had some significance in relation to character issues. 165It was submitted by the respondent that the "Thai man incident" was irrelevant, given that the appellant was not ultimately dismissed on the basis of the sexual harassment allegation. However, as noted earlier, the appellant was dismissed partly on the basis of an allegation of inappropriate behaviour, which allegation relied upon grounds identical to those on which the sexual harassment allegation was originally based. 166At the very least, the "Thai man incident" issue went to the gravity of the conduct and should have had a bearing upon the conclusion of the TAB (at [68]) that, given the "seriousness of the appellant's actions against Mr Kemp ... the respondent was fully entitled to dismiss the appellant". Notwithstanding the undisputed evidence in relation to the incident, as was stated by the Court in Ainger, there was no explanation by the Commissioner as to why the respondent's case was preferred over the appellant's.

167The denial of procedural fairness caused by the exclusion of the appellant from proceedings which involved, in essence, a word-against-word contest, was particularly grave. That denial of procedural fairness was further compounded by the failure of the TAB to adequately consider, in its reasons for decision, the "Thai man incident", which incident bore upon the consideration of whether misconduct had occurred and also upon a consideration of the respondent's character. 168In the circumstances, in our view, the only appropriate remedy is that the appeal be upheld and the matter be remitted to the TAB to be determined in accordance with this decision pursuant to s 23A(2)(a) of the Act. The hearing below shall be, in accordance with our earlier discussions, in the nature of a retrial.

ORDERS: 169The Court makes the following orders:

1. To the extent required, leave to appeal is granted.
2. The appeal is upheld.
3. The matter number is remitted to the Transport Appeal Board of New South Wales to be determined in accordance with this judgment.

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. Decision last updated: 25 October 2012