CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia - [2004] NSWIRComm 58 - NSWIRComm 2003 case summary — Zoe

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CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia

[2004] NSWIRComm 58

Industrial Relations Commission (NSW)|2003-12-18|Before: Walton J, Sams DP

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-12-18

Before

Walton J, Sams DP

Source

Original judgment source is linked above.

Judgment (75 paragraphs)

[1]

CITATION : Mealey and the Council of the City of Sydney [2004] NSWIRComm 58 APPELLANT PARTIES : Mr Garry Patrick Mealey RESPONDENT Council of the City of Sydney FILE NUMBER: IRC6761 of 2003 CORAM: Walton J Vice-President; Sams DP; Tabbaa C Appeal - leave to appeal - admission of fresh evidence - representation of appellant - literacy of appellant - adjournment sought to obtain legal advice - refusal to grant adjournment - exercise of discretion - dismissal of proceedings for want of prosecution - effect of r146 of Commission's Rules - finality of decision - relevant principles. CATCHWORDS : Held, leave to appeal granted - interests of justice - appeal of general significance to Commission's practices - no real issue of appellant not prosecuting his case with due diligence - appellant's literacy difficulties relevant consideration - miscarriage due to refusal to grant adjournment - no notice of application to dismiss proceedings - appellant unable to bring fresh proceedings - appellant unable to properly defend the application - appellant denied natural justice - appeal upheld - orders made - matter remitted. LEGISLATION CITED : Industrial Relations Act 1996 CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia (2001) 110 IR 211 Freund and Ors v Peter Stoitse Transport Pty Ltd and Anor [2002] NSWIRComm 54 House v King (1936) 55 CLR 499 Hutchison and Karl Azzi Hairstylists [2002] NSWIRComm 133 Sonia Lawless and Leichhardt Community Youth Association [2003] NSWIRComm 66 Kenneth Little Thoroughbred Services Pty Limited v Davies [2003] FCA 1627, 18 December 2003 CASES CITED : King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Martin v Fruit Ingredients Australia Pty Ltd [2002] NSWIRComm 380 Stollznow v Calvert (1980) 2 NSWLR 759

[2]

[9]

5 His Honour's decision on 31 October 2003 was in short form and we quote it in full: The Commission has before it an application to dismiss the application before the Commission, that is to say the substantive application seeking relief from an alleged unfair dismissal for want of prosecution. It is an unusual circumstance in which the Commission finds itself in that the matter has been through the various processes required by the Act. Conciliation was attempted without success shortly after the application was filed. Directions as to the filing and service of evidence were then made and a timetable was fixed for the hearing and determination of the issues between the parties. The matter was then listed as is the customary practice of the Commission as presently constituted on 7 October 2003 to ascertain readiness to proceed to hearing and compliance with directions to which I have earlier referred. The Commission was advised on 7 October 2003 that whilst the applicant's evidence had been filed there was a degree of lateness associated with the filing of that evidence, such that the respondent employer was unable to comply with the directions given as to the filing and service of its evidence. Those directions were varied to accommodate the circumstances to which I have referred and an application for adjournment was granted in the interests of allowing further time for the applicant's case to be fully prepared. The matter came on for hearing today and at the outset the Commission has been advised of the applicant's decision to dispense with the services of his union and to seek advice from legal representatives for that purpose. The applicant asks for a further adjournment of the proceedings. That adjournment, having been vigorously opposed was not granted. The applicant was then invited to begin his case. He declined and the Commission is now asked to in the circumstances to dismiss the application. It seems to me that for reasons best known to himself, Mr Mealey has decided not to present his case today, although one may note on the face of the documentation filed, the matter is ready to proceed, that is the applicant has filed the evidence upon which he wished to seek to rely and the Council has done likewise. The Commission has been taken to various authorities going to the exercise of discretion in relation to rule 146 of the Industrial Relations Commission Rules and it seems to me fundamental that each case turns on its own facts and circumstances. I am completely satisfied that the applicant has had sufficient opportunity to prepare and present his case and for reasons that are undisclosed to the Commission, other than the fact that he seeks alternative representation, he has chosen not to do so. In the circumstances I will accede to the application made by the employer and dismiss the application for want of prosecution. I make no order as to costs.

[16]

12 The appellant made an application to admit fresh evidence. After a short adjournment the Full Bench ruled: We propose to rule on what appears to be the essence of the application for fresh evidence in the proceedings and will do so in two parts dealing, firstly, with item numbers 5 to 10 respectively appearing in the appeal book and, secondly, with the affidavit of Mr Gary Mealey filed on 9 December 2003. As to the first consideration we note at the outset that while we referred to the material as a matter of convenience by reference both to the index to the appeal book and the various materials corresponding to that index appearing on pages 22-23, we agree with the submission put by Mr Crow that these materials do not form part of the record of the proceedings and should not properly have formed part of the appeal book. Then dealing with those matters however - again for convenience by reference to the appeal book - we consider that the affidavits corresponding respectively to items 5, 6, 7, 8 9 and 10 appearing in the appeal book, should be admitted as evidence in the appeal for all purposes, namely both as to the question of leave and if reached, the question of merit both as to firstly them demonstrating the record of the proceedings that have been produced to the Deputy President but not read into evidence - that is they are not evidence in the proceedings before the Deputy President, but demonstrate the case filed by the respective interests and, secondly, primarily as to the question of merit as to the nature of the cases which were advanced at that stage, not as to the intricacies of the merits of them, but simply as to the nature of the cases advanced at that point. That collection of six affidavits shall be collectively Exhibit "2" in the appeal proceedings, although limited in their operation and effect in the appeal in the manner that we have described in rendering our decision in relation to it. Then turning to the affidavit of Garry Patrick Mealey filed on 9 December 2003, we have decided to admit into evidence on the appeal, parts of the affidavit and in that respect to limit the scope of the evidence so admitted for particular purposes on the appeal. Therefore we shall deal with the paragraphs respectively as those paragraphs admitted and those of course struck for that purpose. In each case it should be taken that where the paragraph has been admitted, we do so by the grant of leave pursuant to section 191(2) of the Act. We admit for that purpose, but only as to the question of leave to appeal, paragraphs 1 to 4 respectively. We strike paragraphs 5, 6, 7 and 8. We admit as to the question of leave and, if reached, the question of merit, paragraph 9 and we strike respectively paragraphs 10, 11, 12 and 13, namely the balance of the affidavit. Therefore there is admitted as exhibit "3" the paragraphs which we have identified as having been admitted in the proceedings either as to leave or to merit as described in our ruling. We have not identified separately how the annexure would carry in that respect although it is our suspicion that it does not follow. In other words the annexures would not form part of the exhibit.

[56]

38 In CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia (2001) 110 IR 211, a Full Bench of the Commission referred to the obligation to observe procedural fairness in relation to proceedings before the Commission. At para 33 the Full Bench said: The Commission, when not sitting in Court Session, is not bound to act in a formal manner, is not bound by the rules of evidence and may inform itself in any way that it considers to be just: s163(1)(a) and (b) of the Act. However, the Commission is required to act according to equity, good conscience and the substantial merits of the case: s163(1)(c) of the Act. This requirement clearly encompasses an obligation to observe procedural fairness in relation to proceedings before the Commission: see General Pants (Trading) Co Pty Ltd v Shonny (unreported, Fisher P, Schmidt J and Murphy CC, Matter No IRC 3123 of 1993, 8 September 1994, at p12). Numerous decisions have affirmed the principle that arbitral tribunals, although not bound by the rules of evidence or obliged to adopt the strict procedures characteristic of the courtroom, are nonetheless required to adhere to the dictates of procedural fairness. In Re Australian Railways Union; Ex parte Public Transport Corporation (1993) 117 ALR 17, the High Court observed that broad powers were conferred on the Federal Commission to make an award and was not restricted to the specific relief claimed by the parties. However, the Court stated (at 23-24): But the wide scope given to the Commission in determining the relief which it will give does not absolve it from an obligation to observe the rules of procedural fairness in exercising its arbitral function. In Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd ((1989) 167 CLR 513 at p519) this Court pointed out that it was well settled that the Conciliation and Arbitration Commission was bound to act judicially and that the Commission, as its successor, is bound to do likewise. The Court went on to point out that one aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and, coupled with that duty, is the duty to consider the case put. And in Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd ((1993) 67 ALJR 389, at p390; 112 ALR 193, at p194) the Court said that the Commission has a duty in considering an application to afford a party a reasonable opportunity to allow his or her case to be put. The precise requirements of procedural fairness will depend on the entire circumstances of the case and the statutory context in which the decision-maker is operating. It is clear, however, that a party to proceedings is entitled to know that case which they are required to answer. In Kioa v West (1985) 159 CLR 550 at 582, for example, Mason J said: It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it. Fairness requires that each party be given the opportunity to meet the case which is put against him or her. In adversarial proceedings, this ordinarily means that the decision maker is precluded from addressing issues not raised by the charges or pleadings and the submissions of the parties at hearing: see Fletcher v Federal Commissioner of Taxation (1988) 84 ALR 295 at 307-310. A decision maker may also be required to identify critical issues which it is proposed to decide against a party, at least where those conclusions are not obvious or anticipated. See also Freund and Ors and Peter Stoitse Transport Pty Ltd and Anor .