Elleray v Rail Corporation of New South Wales

Factual Background 4As noted above, the appellant was dismissed for breaches of the Code. Those breaches related to two matters, each with multiple particulars. 5The first matter concerned the appellant's alleged misconduct on a train operated by the respondent on 14 November 2010 ('the November incident'). By letter dated 13 May 2011, the respondent alleged that the appellant engaged in "inappropriate behaviour" on that occasion in the following manner: (a) Refusing to produce a train ticket or employee travel pass to Transit Officers McKenna and Jones when they asked you to produce a valid rail ticket; (b) Attempting to punch Transit Officers McKenna and Jones when they asked you to produce identification; (c) Verbally intimidating and threatening Transit Officers McKenna, Jones, Ogden, Perrett, Poivesan and Wain, saying words to the effect of: (i) "You don't know who your [sic] fucking with, your [sic] jobs are gone do you know Mick Drury?" (ii) "You're fucked; he will know all about this by Monday morning. You assaulted me. I'm going to make a lot of money out of this." and (iii) "Fuck you cunts are all fucking gone, you don't know who you're messing with, fuck you all." 6That incident led to criminal charges, but no conviction was recorded. 7The second matter arose during the disciplinary investigation of the November incident, when the respondent discovered that the appellant had four serious criminal convictions recorded against him between 24 October 2001 and 6 May 2004, which he allegedly failed to disclose. In consequence of a subsequent disciplinary investigation into that matter, the respondent alleged that the failure to disclose each of those convictions amounted to further breaches of the Code. 8On 19 March 2012, the respondent determined that the above allegations in relation to both matters, in each particular, were sustained and, by letter dated 19 April 2012, invited the appellant to make submissions as to why he should not be dismissed. In his reply the appellant did not deny the allegations in relation to the November incident but contended, as to the second matter, that he had disclosed his convictions to named RailCorp personnel. The respondent obtained further witness statements to investigate that contention but found it to be unsubstantiated. Ultimately, as noted above, the respondent dismissed the appellant (providing him with four weeks' pay in lieu of notice).

History of Proceedings 9On 13 July 2012, the appellant appealed his dismissal to the Board. The Board, constituted by Commissioner Tabbaa AM, upheld his appeal on 7 May 2013 and determined that the appellant should be re-instated "to his former position ... with continuity of service save for the break in employment" (see David John Elleray and Rail Corporation of New South Wales ("RailCorp") [2013] NSWTAB 3 ('Elleray v RailCorp') at [93]). 10In coming to that decision Tabbaa C refused to receive an element of the appellant's evidence. As that refusal was, in substance, the genesis of the present appeal, it is useful to describe it in some detail. 11During the proceedings before Tabbaa C the appellant prepared two affidavits. The first affidavit, which was filed on 3 December 2012, answered the allegations made by RailCorp relating to the second matter, namely, the alleged failure to report serious criminal convictions. The second affidavit, which was said to address the November incident, was not filed by the required date in accordance with in accordance with directions issued by the Commissioner. On 11 December 2012, one day before the hearing, the appellant served that affidavit on the respondent, who subsequently objected to the Board receiving it in evidence due to its late service and an assertion that it would prejudice their case. 12The appellant submitted that he was not at fault for the failure to adhere to the prescribed schedule because he was awaiting a transcript from the Registry of Campbelltown Local Court of the evidence that he had given in the associated criminal hearing. The appellant also contended that the evidence was relevant to the issues that the Board was to decide. 13Commissioner Tabbaa refused leave to allow the second affidavit into evidence and, furthermore, the appellant was not permitted to lead evidence concerning that affidavit in examination in chief. As that affidavit (or the evidence sought to be adduced in relation to the November incident) is not before the Court, it is not entirely clear what evidence was sought to be led before Tabbaa C. However, in her decision, Tabbaa C stated as follows (at [87]): The Appellant did not, in the statement provided in the proceedings deny his conduct on the train. He relied purely and simply on the fact that he had entered pleas of "not guilty" to the charges that had been pursued by the Police and that those charges had been dismissed. The Appellant was not helpful to the Board not by what information he provided to the Commission but by what information he withheld. 14It may be noted, however, that the appellant's version of the events was heard, to some extent, during those proceedings by way of counsel's opening address and the cross-examination of the respondent's witnesses. 15Nevertheless, as noted above, the Board ultimately found in the appellant's favour (noting, inter alia, the lack of CCTV footage, which might have been provided by the respondent to put the November incident beyond doubt, and the appellant's success at mitigating his losses) (at [90] and [92]). 16The respondent appealed the Board's decision to the Full Bench of the Industrial Relations Commission of New South Wales ('the Commission') pursuant to s 23A of the TAB Act, contending that the Commissioner made implicit decisions on questions of law "that she was not required to make findings of fact on contested issues and ... that she was not required to determine whether on the basis of those findings, dismissal was appropriate" (see Rail Corporation of New South Wales v Elleray [2013] NSWIRComm 86 ('RailCorp v Elleray') at [15]). 17The Full Bench upheld the appeal on 30 September 2013, stating that it was "abundantly clear that the Board failed to decide facts centrally relevant to the exercise of its jurisdiction" (at [46]). The Full Bench found that, as there was a "complete absence of any analysis of the evidence" (at [49]), the Board did not make adequate findings of fact regarding the two matters which were alleged to justify the appellant's dismissal and could not, in the absence of such findings, determine whether the dismissal was just and reasonable (at [55]). 18Ultimately, the Full Bench concluded as follows (at [56] and [57]): 56 ...The error was the Board's failure to resolve all relevant questions of fact or issues placed before it by the parties necessary to resolve the controversy. 57 The appeal should, therefore, be upheld and in the circumstances the matter remitted to the TAB for determination according to law. 19It may be noted that, during those proceedings, the appellant did not contend that Tabbaa C erred by refusing to receive his evidence with respect to the November incident and the Full Bench did not make findings in that respect.

The Proceedings before Commissioner Newall 20The Board, constituted by Commissioner Newall, heard the remitter under s 43 of the Transport Administration (Staff) Regulation 2005 ('the Regulation'). The resultant decision was handed down on 16 December 2013. 21The Board found that the allegations concerning the November incident were largely made out on the evidence (in particular, the appellant did fail to show his employee pass, attempted to punch one of the requesting officers, and made the alleged statements, which were intimidating and threatening) and that each of the particulars constituted misconduct. As to the second matter, whilst the Board found that the appellant had an obligation to report his convictions, it determined that, in the circumstances, the respondent did not prove that he had not done so (at [48] and [62] respectively). 22Ultimately, the Board determined that the punishment imposed on the appellant was just and reasonable (see [138]). Accordingly, the appeal was disallowed. 23Critically, for present purposes, in coming to that decision, the Board did not undertake a retrial. Instead, Newall C considered the written and oral evidence that was before the Board at first instance as well as written submissions as to matters for fact and law. He explained his approach as follows (at [9] to [13]): 9 The matter came before me on 10 October 2013 for directions. I directed that the matter was to proceed on the basis of the evidence filed in statement form and the oral evidence, including cross-examination, before the Board at first instance. I directed that written submissions be provided as to matters for fact and law within a specified period ending on 12 December 2013, and added an undertaking that if humanly possible a decision would be provided, with reasons, before the end of the law term on 20 December 2013. 10 I adopted this course because, first, the parties had been legally represented before the Board at first instance and had made what were no doubt informed and deliberate forensic decisions about their evidence in chief and cross-examination. 11 Second, but in the context of the parties having already had that opportunity, to allow the matter to be conducted all over again would have required a hearing in 2014, which in my view would have been contrary to the proper conduct and jurisprudence of the Board in relation to a dismissal in July 2012, having regard particularly to s.14 of the Transport Appeal Boards Act 1980, ('the Act') and an unwarranted use of the limited resources of the Board's sitting days. 12 No submission was made that any particular or identifiable prejudice would arise from this course. 13 The matter has been, as I point out above, remitted to the Board to be determined according to law. 24At the 10 October 2013 directions hearing, the Commissioner invited the parties to comment on that proposed approach. The respondent accepted the Commissioner's approach at that time, whilst the appellant contended, in substance, that there should be a retrial. The appellant, however, did not make any particular application that he should be permitted to adduce evidence as to the November incident nor did he address any alleged denial of procedural fairness in that respect in the written submissions which were subsequently provided to the Board. 25The adoption of that approach by Newall C gave rise to the present appeal.

The Present Proceedings 26By way of a Notice of Appeal filed on 3 January 2014, the appellant sought leave to appeal and appeal under s 188 of the Industrial Relations Act 1996 ('the IR Act') and appealed against the impugned decision pursuant to s 23A of the TAB Act. 27The grounds of the appeal were outlined in par H of the Notice of Appeal in the following terms: Ground 1 1. The Transport Appeal Board denied the appellant procedural fairness in refusing to give him leave to give evidence at the re-hearing of his appeal against dismissal; Ground 2 2. The Transport Appeal Board erred in failing to draw the Jones v Dunkell inference in relation to the failure of the Respondent to produce in evidence at the hearing the recording taken by the CCTV camera of the incident that occurred in the Guardian Service on 14 November, 2010; and, Ground 3 3. The Transport Appeal Board erred in failing to draw the Jones v Dunkell inference in relation to the Respondent's failure to identify and call evidence from an independent witness who was in the vestibule area of the carriage when the incident occurred on 14 November 2010. 28By the conduct of the appellant's case, however, only the first ground of appeal outlined above was pressed. 29The appellant sought the following relief (outlined in par I of the Notice of Appeal): 1. Appeal allowed; 2. The 16 December 2013 decision of Commissioner Newall is set aside; 3. In lieu of that decision the Court Directs [sic] that the appeal by the Appellant to the Transport Appeal Board be allowed; 4. The matter otherwise be remitted back to the Transport Appeal Board for determination at law; 5. Costs.

Submissions 30The parties' submissions proceeded upon the basis that leave to appeal was required pursuant to s 188 of the IR Act, which was applied by s 23A(3) of the TAB Act. The subsistence of that requirement will be discussed later in this judgment.

Submissions of the Appellant 31Mr P F Doyle, counsel for the appellant, made oral and written submissions which, when taken together, may be summarised as follows: (1)Leave to appeal should be granted as the Board denied the appellant procedural fairness in not allowing him to give evidence in the rehearing before Newall C. (2)Par G of the Notice of Appeal, which described the "Reasons why leave to appeal should be granted", was in the following terms:

1. The matter is of such great importance, that it is in the public interest that leave be granted for the following reasons: (a) Identifing [sic] the issue of procedurl [sic] fairness in allowing the Appellant to give evidence at the re-hearing before Commissioner Newell [sic]; (b) Identifying whether or not, or in the alternative, in what circumstances the Transport Appeal Board is required to conduct a formal re-hearing following appeal from the Full Bench; (c) Identifying the minimum requirements for the proper exercise of jurisdiction by the Transport Appeal Board; (d) Identifying the threshold matters of which the Transport Appeal Board must be satisfied to allow an appeal. (3)Further, leave ought to be granted where, as in the present case, there is a reasonably clear injustice which goes beyond merely being arguable: Kassem v Colonial Mutual General Insurance Company Limited [2001] NSWCA 38 at [76]. (4)The decision of the Board to refuse to allow the appellant to give evidence with respect to the November incident constituted a decision on a question of law as a denial of procedural fairness was a question of law. The appellant did not detail in his submissions why this was said to be the case, nor did he explain the precise content of the evidence which he was prevented from giving. (5)This decision represented an error of law because the Commissioner was required to exercise his discretion to receive evidence in a "judicial way". There was no valid reason for the Commissioner to adopt the approach he did. (6)Procedural fairness required allowing the appellant to give evidence before Newall C. This is supported by the following authority: (a)In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at [31] ('Kioa v West'), Mason J stated:
2. The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn L.C. understood that this was the law when he spoke of the obligation to "fairly listen to both sides" being "a duty lying upon every one who decides anything" (Board of Education v. Rice (1911) AC 179, at p 182)... (b)In Kioa v West (at [15]), Brennan J quoted Russell v Duke of Norfolk (1949) 1 All ER 109 at p 118, where Tucker LJ found that an "essential" element of procedural fairness "is that the person concerned should have a reasonable opportunity of presenting his case." (c)In a more recent case, Coutts v Close [2014] FCA 19 ('Coutts'), Griffiths J observed as follows (at [114]): 114 Subject to any relevant statutory modification or variation, it is well-established that a person liable to be directly affected by an administrative decision to which the rules of procedural fairness apply must be given an opportunity of putting information or submissions to the decision-maker. (7)Practice Note 17 par 2, which reflects s 56 of the Civil Procedure Act 2005 ('CP Act'), supports this view. It states:
3. The purpose of this Practice Note is to facilitate the resolution of unfair dismissal matters before the Industrial Relations Commission of New South Wales by ensuring that such proceedings are conducted before the Commission in an efficient and expeditious manner and that practitioners and others who appear before the Commission do all they can to facilitate the just, quick and cost effective disposal of unfair dismissal proceedings before the Commission. (8)As the failure of the appellant to bring evidence as to the November incident at first instance was not his fault, it was inappropriate to punish him by refusing to receive evidence about critical issues in the proceedings below. (9)Further, it appears from [10] of the decision below that the Commissioner viewed the appellant's failure to give evidence in this respect as a "deliberate forensic decision". This mischaracterises what occurred at first instance where evidence was not filed in error and Tabbaa C refused to receive it. (10)Whilst the Commissioner drew no adverse inference from the appellant's failure to give evidence and his case was put to the respondent's witnesses in cross-examination, it remains the case that important evidence was not before the Board. (11)The refusal of the Board to hear the appellant's evidence at first instance was not raised before the Full Bench in RailCorp v Elleray because the appellant was not challenging the result of the first instance appeal. The appellant did not want a rehearing at that time as he sought to have the existing decision stand.

Submissions of the Respondent 32Ms N L Sharp, counsel for the respondent, made oral and written submissions which, when taken together, may be summarised as follows: (1)Leave to appeal should not be granted as the appellant has failed to identify any decision by the Board on a question of law in accordance with the requirements of s 23A of the TAB Act. The Court is, therefore, unable to entertain the proposed appeal. (2)Even if the alleged denial of procedural fairness could be framed as a decision on a question of law, which is not conceded, the Court should not grant leave to appeal for the following reasons: (a)There is no merit to the contention that the appellant was denied procedural fairness in the proceedings below. Accordingly, there is no case of demonstrable error and leave should be refused: King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407; (b)Even if it was accepted that there was a denial of procedural fairness in the proceedings below, the Commissioner did not draw any adverse inference against the appellant in consequence of not receiving his evidence (see [93] of the decision); (c)This case raises no question of having broader application because it is no longer open to employees of the respondent to appeal to the Board. The appellant was dismissed by the respondent pursuant to cl 37(1) of the Regulation and appealed pursuant to cl 43 of the same. As the Regulation has since been repealed, there is no public interest in the grant of leave to appeal; and, (d)The appellant has made no genuine effort to identify the grounds upon which it is appropriate for the Court to grant leave to appeal. The Notice of Appeal merely mirrors the "issues raised by the appeal" which were advanced by the respondent in the previous appeal (from the first instance decision of Tabbaa C). Those issues simply do not arise in the present appeal. Similarly, the "Reasons why leave to appeal should be granted" (extracted above) do not disclose reasons pertinent to the present appeal. In particular, there is no issue in this appeal with respect to the identification of the minimum requirements for the proper exercise of the Board's jurisdiction or the threshold matters of which the Board must be satisfied to allow an appeal (par G (c) and (d)). (3)On an appeal under s 23A of the TAB Act it is necessary for the appellant to precisely identify that the Board has either expressly or by implication made a decision on a question of law (see Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [38]-[58], Byrne v Rail Corporation of NSW [2012] NSWIRComm 117 ('Byrne') at [20], Rail Corporation of NSW v Brown [2012] NSWIRComm 14 at [20] ('Brown')). (4)The appellant has failed to identify a decision on a question of law as there is clear authority that a denial of procedural fairness is not a decision on a question of law (see Totalisator Agency Board v Casey (1994) 54 IR 354 ('Totalisator') and Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 ('Lambert') at [24] and [65], [72] to [75]). It was noted, in this respect, that Byrne does not stand for the proposition that a denial of procedural fairness by the Board is, in and of itself, a decision on a question of law. (5)The determination by Newall C to proceed upon the evidence that was before the Board at first instance was not a decision on a question of law. It was simply an exercise of a procedural discretion concerning how the case was to be conducted before him. (6)The remitter below was at large. It was appropriate for Newall C to rely on the evidence before Tabbaa C based upon the provisions of the TAB Act and the IR Act. (7)Even if a denial of procedural fairness did represent a decision on a question of law, which is not conceded, the appellant's contention that he was denied procedural fairness is without merit in the present matter for the following reasons: (a)Procedural fairness, for present purposes, merely requires an 'opportunity' to be heard. The appellant did have such an opportunity in the proceedings below. A failure to exercise that opportunity does not equate to a denial of procedural fairness. (b)Whilst the appellant was not permitted by Tabbaa C to put his second affidavit into evidence, he nonetheless provided his account of the November incident to the Board at first instance by way of the submissions of his counsel in opening and during cross-examination (where the appellant's version of events was put to the respondent's witnesses). This evidence was received in the proceedings below, along with further written submissions. (c)The content of procedural fairness is informed by the particular statutory regime that operates. In this case, the statutory scheme required the Board to act quickly (see s 14 of the TAB Act). Similarly, Practice Direction No 22 applied at the relevant time, which also required expediency. (8)This is, in truth, an appeal against the interlocutory decision of Tabbaa C to exclude the evidence at first instance. The reality is that, during those proceedings, the appellant made the forensic decision to put the respondent to proof, changed his mind at the last minute and sought to rely upon a late affidavit. Tabbaa C was right to exclude the statement. (9)As to that decision, the refusal to receive the appellant's evidence did not amount to a denial of procedural fairness. The 'opportunity' that must be afforded for procedural fairness is not accompanied by an unqualified right to tender evidence in breach of timetables set by a court or tribunal (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 ('Aon v ANU') at [112]. In Aon v ANU it was held that a party had no right to amendment (at [96] and [111]) and that an explanation for delay in making an application to amend pleadings was required (at [102]). By analogy, there was no automatic right for the appellant to tender late evidence and an explanation was required for the late service of the appellant's new evidence in the proceedings at first instance. (10)Finally, this issue should have been raised by the appellant at the earliest opportunity. During the appeal of the first instance decision, the appellant did not file a notice of contention indicating that the appellant's evidence should have been adduced by Tabbaa C. Further, the appellant made no specific complaint that he had been denied the opportunity to present his evidence during the proceedings below. The appellant did not make submissions with respect to a denial of procedural fairness when addressing the Commissioner's proposed approach to the evidence before him. The appellant cannot raise an issue on appeal that has not been ventilated below. 33The parties were invited to advance supplementary submissions as to the effect of Lee v Energy Australia (No 4) [2011] NSWIRComm 120 ('Lee') and on the power of the Court to award costs in the present appeal. 34The appellant submitted, as to the judgment in Lee, that it does not prevent the Commissioner from being able to order that additional or fresh evidence be called in a rehearing, even if there has been no specific order of that nature made by the appellate Court. The Board itself has the power to hear additional evidence. 35The respondent submitted that the judgment in Lee provided further reason why the present appeal should be dismissed. The respondent noted, in particular, that, since the Full Bench did not order a retrial, leave was required for the appellant to lead further evidence: Lee at [13]. 36The respondent observed that the Full Bench in RailCorp v Elleray directed that the matter be "remitted to the Transport Appeal Board for determination according to law", without adding any conditions to that order for remittal. In particular, there was no direction that there be a "rehearing" and no direction that on the remitter new evidence should be accepted by the Board. 37In these circumstances, the appellant had no entitlement to lead new evidence. The judgment in Lee demonstrates that the appellant was required to make an application for leave to lead new evidence (see also Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79 at [9]). The statement of counsel at the October 2013 directions hearing, which was a general submission (without any supporting evidence) that there should be a full rehearing, did not amount to such an application. 38As to costs, the parties joined in the view that s 181 of the IR Act provided the Commission with a discretionary power to award costs in appeals before the Court. The respondent submitted, in support of this view, that, although there was no power in the TAB Act to award costs in an appeal under s 23A, the power under s 181 was not dispensed with. Further, s 181 applied of its own force despite not being expressly mentioned in s 23A (not being in Pt 7 of Ch 4 of the IR Act) because that section "does not have any negative operation". That is, s 23A(3) does not prevent provisions of the IR Act applying of their own force to such an appeal (the 'machinery' provisions of Pt 5 of Ch 4, for example, remain applicable). Further, s 20 of the TAB Act contemplates that costs may be awarded in appeals under s 23A. That provision is in the following terms: A Board may not award costs in relation to the proceedings in an appeal (other than proceedings under section 23A). 39The appellant contended, however, that the Commission does not award costs merely on the basis of a party being successful (see, for example, Brown and Byrne). The appellant submitted that as he raised a justifiable issue in the present appeal, namely the denial of procedural fairness, no costs should be awarded regardless of the ultimate disposition of the matter. 40The respondent contended that the Court should "give effect to the principle that costs ought to follow the event" in the present appeal, as the sole ground of appeal was entirely without merit and the appellant made no effort to satisfy the jurisdictional threshold of identifying a decision on a question of law.

Leave to Appeal 41Although the form of the Notice of Appeal and both parties' submissions were premised upon a requirement of leave to appeal in an appeal under s 23A of the TAB Act, I have some reservations as to whether, in law, leave to appeal is required due to the passage of the Industrial Relations Amendment (Industrial Court) Act 2013 ('the IR Amendment (IC) Act'). 42Section 23A(3) of the TAB Act provides that Pt 7 of Ch 4 of the IR Act applies to an appeal under that section "in the same way as it applies to an appeal against a decision of the Commission under section 197B of that Act". 43The following was observed in the recent judgment in Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40 ('Schoeman') (at [132] and [133]): 132 Prior to the IR Amendment (IC) Act appeals lay to a Full Bench of the Court. Such appeals required the grant of leave to bring an appeal by virtue of the words "subject to this Part" in s 197B (being a reference to Pt 7 of the IR Act) importing the requirements of s 188 of the IR Act which, in turn, provided that an appeal to the Full Bench was only by leave. 133 By the IR Amendment (IC) Act, appeals brought under s 197B are now heard by a single Member of the Court. That reform would seem to have the consequence of removing any requirement for leave. Whilst s 197B still provides that the section is subject to Pt 7, s 188 would no longer seem to have the effect of requiring the grant of leave to appeal as that provision is limited in its operation to an appeal to 'a Full Bench of the Commission'. Section 197B does not itself impose a condition that leave is required to bring an appeal (and no other provision of Pt 7 has that effect). 44The issue was not, however, the subject of definitive ruling in that judgment for two reasons, namely, that it was raised by the Court (and consequently was not the subject of comprehensive submissions) and that leave to appeal, if required, would have been granted (see [134]). Consistently with the approach taken in Schoeman, I shall refrain from ruling upon that issue in the present matter for the following reasons: (1)The question only came to the parties' attention during the course of the appeal upon being raised by the Court. The parties' submissions on the question, thereby, remained underdeveloped. (2)If leave to appeal were required, I would, in the circumstances of the present matter, grant it. Although, as I will find, there were significant deficiencies in the appellant's contentions, it is important for the Court to clarify whether a denial of procedural fairness can represent a decision on a question of law as required for an appeal pursuant to s 23A of the TAB Act. Whilst the authority, in general terms, is clear as to whether procedural fairness is a decision on a question of law, there is seemingly conflicting authority in the context of an appeal to this Court under that provision (namely, Byrne). Hence, despite the respondent's contention that there is no utility in the present appeal as the Regulation concerned had been repealed, the continued significance of the jurisdiction of the Commission under s 23A of the TAB Act warrants the grant of leave to appeal in order to clarify the proper exercise of that jurisdiction. Further, this clarification would have broader significance for statutory appeals confined to a decision on a question of law (such as appeals brought under s 197B of the IR Act). 45For the above reasons, it is unnecessary to resolve whether leave to appeal is required in the present matter. The resolution of that question should await an appeal in which the Court has the benefit of more comprehensive submissions and the question is ripe for determination. If leave to appeal were required, I would grant it.

The Jurisdiction of the Court under s 23A of the TAB Act 46I will turn now to consider whether the present appeal falls within the statutory limits of s 23A of the TAB Act.

Nature and Scope of an appeal under s 23A of the TAB Act 47Section 23A of the TAB Act is in the following terms: Appeals on questions of law 23A Appeals on questions of law (1) A party to a promotion or disciplinary appeal may, subject to subsection (3), appeal to 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 Commission in Court Session may: (a) remit the matter to the Board for determination in accordance with the decision of the Commission, 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. 48In determining the scope of an appeal under s 23A of the TAB Act, the language of the statute must be the relevant starting point: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [89] ('Kostas'). It is apparent from the terms of the provision that an appeal to this Court is not at large, but is confined to an appeal against any decision of the Board on a question of law. 49The Full Bench in RailCorp v Elleray discussed the nature and scope of the limited right of appeal provided by s 23A (at [11] and [12]) as follows: 11 An 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 Full 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.) 12 In respect of this appeal, the relevant findings of the Court in Brown were as follows: [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. 50The Full Bench concluded (at [38] and [39]): 38 It follows, that on an appeal from a decision of the TAB, it is necessary for the appellant to identify that the TAB has either expressly or impliedly made a decision on a question of law. In Hutchinson v Roads and Traffic Authority [2000] NSWCA 332, Giles JA in considering s 54 of the Government and Related Employees Appeal Tribunal Act 1980 ("GREAT Act") which was relevantly in the same terms as s 23A of the TAB Act, stated at [33]: "... The word "decision" is important. It includes an opinion of the Tribunal on a question of law upon which its determination is based ..., but it is not enough that an error of law has occurred in the course of a hearing before the Tribunal ...." 39 However, it is not necessary that the question of law be explicitly stated and decided by the TAB. As held in Brown and as Hodgson JA said in Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [28] "It is sufficient if a decision of the Tribunal is such that a resolution of a question of law is manifested by it". 51Similar conclusions were reached in Schoeman with respect to s 197B of the IR Act (which also concerns an appeal against a decision on a question of law). In that decision, the Court expounded the following principles (at [60]): (1) A 'decision', in this sense, is not limited to the final or operative order of a decision-maker. Any decision that is a decision on a question of law, including an opinion of the decision-maker on a question of law upon which its action or ultimate decision is based, may constitute a decision on a question of law; (2) The 'decision' on the question of law must be identified with some precision by the appellant in order to invoke the jurisdiction of the appellate court. It is not essential, however, that the decision be identified in such terms by the decision-maker; (3) In general terms, therefore, an appealable decision on a question of law may be found where the decision-maker has reached a conclusion with respect to a matter that required, for its determination, the identification of a relevant matter of law and an error is alleged with respect to that matter of law; (4) A decision on a question of law will be manifested where the decision-maker has posed for themselves the wrong question at law; (5) A decision on a question of law will be manifested where the decision-maker has failed to take into account relevant considerations or has given weight to irrelevant considerations because such a determination necessitates the formation of a view as to whether a consideration is mandatory (relevant) or prohibited (irrelevant) as a matter of law. 52Thus, if the present appeal does not concern a decision on a question of law upon the authority outlined above, this Court cannot entertain the matter, as the determination by the Board below was final subject only to the limited right of appeal conferred by s 23A (see s 23(2) of the TAB Act).

Does a denial of procedural fairness constitute a decision on a question of law? 53In Totalisator (at 359), Kirby P stated that it "is clear law that a failure to afford natural justice or procedural fairness involves an error of law". He found that this required, inter alia, that an opportunity be afforded to the parties to offer evidence or submissions upon material which went towards a finding of fact pertinent to the decision being made: Totalisator at 359. This view was accepted in Hutchinson v Roads and Traffic Authority and Anor [2000] NSWCA 332 ('Hutchinson') at [29] (per Giles JA with whom Meagher JA agreed). Those principles were applied in the recent judgment of International Fashion Group Pty Ltd v Jonco Imports Pty Ltd [2014] NSWSC 60 (at [79] to [81]). 54It does not follow, however, that a denial of procedural fairness represents a decision on a question of law as required by s 23A of the TAB Act. 55There was a paucity of submissions from the appellant as to how the alleged denial of procedural fairness was contended to represent a decision on a question of law. The respondent, by contrast, squarely addressed that question, relying upon Totalisator and Lambert to submit that a denial of procedural fairness could not represent a decision on a question of law. 56In Totalisator, Kirby P found that an error of law occasioned by the denial of procedural fairness did not fall within the confines of a statutory appeal on a decision on a question of law (as defined in Clisdell v Commissioner of Police (1993) 31 NSWLR 555 ('Clisdell')). This was a reference to Sheller JA's determination in Clisdell (at 559) that such a decision included any decision of the tribunal upon which its ultimate decision was based. 57Kirby P's view was applied by Giles JA in Hutchinson (at [33]) as follows: ...it is not enough that an error of law has occurred in the course of a hearing before the Tribunal (Totalisator Agency Board of New South Wales v Casey (at 359); Wijesuriya v The Director-General of Conservation and Land Management (1994) 54 IR 384 at 385). In Totalisator Agency Board of New South Wales v Casey Kirby P held that when the Tribunal denied procedural fairness by relying on matters not the subject of evidence or argument, it had made an error of law but had not made an error in deciding a question of law. The other members of the Court (at 360) did not think there had been a denial of procedural fairness. 58In Hutchinson, Giles JA went on to observe (at [34]) that a denial of procedural fairness "may not involve any decision at all on the part of the judge or tribunal". He concluded that the "vice when there is denial of procedural fairness is vitiation of process, not error in the result" (at [34]). 59That view was, in turn, confirmed in Lambert (see [24] per Hodgson JA). In Lambert, Basten JA stated (at [72] to [75]): 72 ... In an early decision under the Act, Connelly v Department of Local Government (1985) 11 IR 362, Hope JA (Glass JA and McHugh JA agreeing) discussed the circumstances in which the refusal of an adjournment could amount to an error of law. His Honour stated (at 365): "There is firstly the case where there is no material before the Tribunal which would justify the granting of an adjournment. At the other end of the spectrum there is the position where, to deny the granting of the adjournment, would in the circumstances amount to a denial of natural justice and thus an error of law." 73 Hope JA did not expressly suggest that such an error was one which would fall within the statutory appeal and the remarks of Glass JA (at 366) may be seen as supporting a contrary approach. The issue was not dealt with expressly (at 362), no doubt because the appellant, at the suggestion of the Court, had applied at the outset of the hearing for orders in the nature of prerogative relief. 74 In the course of his judgment in Totalisator Agency Board of New South Wales v Casey, Kirby P expressed (at 359) the view that a failure to accord procedural fairness involved an error of law, but not one coming within the statutory appeal provisions as identified in Clisdell. 75 There is something to be said for the view that, where a tribunal has exceeded the bounds of its legal authority by failing to accord procedural fairness, such an error does not constitute a decision of the tribunal on a question of law: see Seltsam Pty Ltd (at 53 [159])... 60The recent authority of the District Court in the judgment of Strangas Building Contractors v Lim [2012] NSWDC 72; (2012) 14 DCLR(NSW) 222 ('Strangas'), which concerned a statutory appeal limited to a decision on a question with respect to a matter of law, conforms with this authority. In Strangas, Knox DCJ found as follows (at [66] to [70]): 66 In my view this appeal effectively seeks the review of the process and procedure followed by the Member. It involves an attempt to reconsider a procedural decision by the Member not to grant an adjournment. For that reason the remarks of Justice MacFarlane at [17] in Newton v Ellis, to which I have already referred, are particularly apposite. 67 In my view this is in reality an appeal against the exercise of a discretion on a procedural matter arising during the hearing. I do not regard the decision in these circumstances as being an error of law such as to enliven this court's jurisdiction under s 67 of the Act. 68 The District Court is a court of statutory jurisdiction. It does not have inherent powers (other than to protect its own processes), nor does it have the jurisdiction of the Supreme Court in terms of prerogative writs. 69 In my view these proceedings should have been commenced in the Supreme Court. 70 Further, in my view this court does not have the jurisdiction to deal with issues of procedural fairness, nor are those issues, in the context of the evidence in this case, errors on matters of law of the kind contemplated by s 67 of the Act. Prerogative relief jurisdiction is retained in the Supreme Court under s 65(2). 61The passage from Newton v Ellis [2012] NSWCA 106 to which his Honour referred was as follows: The difficulty of challenging the decisions is accentuated by the fact that they concerned a matter of practice or procedure, an area into which appellate courts have shown a marked reluctance to intervene (see In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 at 177). A "tight rein" on interference with such matters is necessary because the "disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant ... could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal": In re the Will of F B Gilbert (dec) at 323 per Jordan CJ. 62The above authorities demonstrate that a denial of procedural fairness, such as that which is alleged in the present matter, does not constitute a decision on a question of law under s 23A of the TAB Act. 63The respondent drew attention to the judgment of the Court in Byrne and contended that it was consistent with the aforementioned principles. That submission was as follows: It is noted that Byrne v Rail Corporation of NSW [2012] NSWIRComm 117 does not stand for the proposition that a denial of procedural fairness by the Board is in and of itself a decision on a question of law. In that case, the Board erred in its construction of s.11A of the TAB Act and wrongly excluded the appellant from the hearing (which was a decision on a question of law), and this had the consequence that the appellant in that case was denied procedural fairness. 64I accept the respondent's submissions in that respect for the following reasons: (1)The judgment in Byrne pivoted upon the review of two decisions of the Board, both of which were held to fall "within the definition of a 'question of law' for the purpose of s 23A of the Act" (at [24]). (2)The first decision said to constitute an error of law in Byrne was the Board's procedural ruling to exclude the appellant from the proceedings whilst the witnesses for the respondent gave their evidence. It is true this aspect of the decision of the Full Bench was expressed as constituting a "denial of natural justice" (at [25]). However, it does not follow that the determination of the Full Bench that the Board had reached an erroneous decision on a question of law hinged in that respect upon or was confined to that broad assessment. In my view, the Full Bench decision was ultimately founded upon a conclusion that the Board had adopted a procedure contrary to the requirements of s 11A of the TAB Act. This was the primary basis for a finding of denial of procedural fairness. When understood in this light, the procedural ruling by the Board was plainly one within the scope of a statutory appeal under s 23A of the TAB Act. A decision in contravention of the statutory regime governing the exercise of the Board's jurisdiction invariably involved "an assessment of the proper scope of the Tribunal's power and jurisdiction" and was, thereby, a decision on a question of law (see Brown at [21(e)]). (3)The second decision reviewed in Byrne was the Board's implicit determination not to consider the unchallenged evidence of a central witness. Whilst that decision was framed by reference to the Board's failure to analyse that evidence in the reasons for its judgment, the alleged error of law was, in substance, the failure of the Board to have regard to a relevant consideration (at [29]). A decision as to what considerations were relevant in the disposition of a matter represented a decision on a question of law (see Schoeman at [60(5)]). 65When viewed in that light, the judgment in Byrne does not depart from the authority in Totalisator and Lambert. 66One final matter should be addressed in the disposition of the present appeal. A subsidiary component of the appellant's challenge to the Commissioner's approach was that it was based upon an erroneous impression that the appellant's failure to advance evidence as to the November incident below was the consequence of a deliberate forensic decision. As I will discuss below, it cannot be properly said that the Commissioner erred in this sense. However, even if such an erroneous conclusion as to primary facts led to the approach taken, such an error could never be vulnerable to attack as an error of law (see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155 to 157) and certainly would not reveal a decision on a question of law (see Schoeman at [86]). 67In summary, the present appeal must be dismissed as the challenge by the appellant to an alleged denial of procedural fairness by the Board constituted by Newall C (vis á vis a contention that the Board refused to receive evidence from the appellant as to the November incident) does not constitute a decision on a question of law. The Court cannot entertain the appeal pursuant to s 23A of the TAB Act as it exceeds the limitations of that statutory appeal.

Observations as to procedural fairness below 68Given my findings above it is not strictly necessary to consider whether the procedure adopted by the Newall C in the remitted proceedings did, in fact, constitute a denial of procedural fairness. However, both parties fully addressed that question and for completeness, therefore, I will make some short observations as to the issues raised by them. 69It is appropriate to begin this discussion with recognition that in exercising the powers conferred upon it under the TAB Act, the Board was under an obligation to accord procedural fairness: Byrne at [38] and [124(1)]. As the appellant submitted, the opportunity to put his case before the decision-maker is an important feature of a procedurally fair hearing (see Kioa v West at [15] and Coutts at 114, see also Escobar v Spindaleri (1986) 7 NSWLR 51 at 57 ('Escobar')). Further, the opportunity to give oral evidence about a central issue in the case may, depending on the circumstances of that case, give rise to procedural fairness issues (see Escobar at 57 per Kirby P). 70The precise content of that requirement of procedural fairness will, however, vary depending upon the statute governing the exercise of the tribunal's power and the circumstances of a case. As was stated in Byrne, 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" (at [41]; see also Kioa v West at 584 per Mason J, 594 per Wilson J, and at 612 per Brennan J). The content of procedural fairness may "fluctuate during the course of particular administrative decision making": Re Refugee Review Tribunal and Another; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 (at [62]). 71Further, in determining the content of procedural fairness in a particular case it should be recalled that procedural fairness is a practical, not an abstract, concept, whereby the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1(at [37]) (per Gleeson J). 72Hence, in assessing the question of procedural fairness raised in this matter, consideration must be given to whether, in the circumstances of the alleged denial of procedural fairness, injustice was done to the appellant in practical terms (see Byrne at [48]) and, more particularly, whether he had sufficient opportunity to put his case in that context. 73In the present appeal, the appellant contended that Newall C's refusal to hear fresh evidence in the remitted proceedings (specifically that relating to the November incident) resulted in a denial of procedural fairness. Although the complaint was so expressed in these proceedings, it must be observed that the Commissioner did not refuse an application which was actually expressed in those terms by the appellant's legal representative below because, as will be discussed, it was limited to an application for a "rehearing" (it being tolerably clear that the appellant was seeking, in substance, a retrial). 74The appeal books filed in these proceedings contained no record of the proceedings below in which the Commissioner adopted the procedure in issue. However, the approach he adopted and his reasoning for doing so were nonetheless reasonably accessible from the uncontroverted submissions of the respondent and the decision of Tabbaa C. From those sources it may be ascertained that the Commissioner informed the parties to the remitted proceedings that he intended to determine the matter upon the basis of the evidence that was before Tabbaa C and would receive written submissions as to matters of fact and law. 75The appellant's legal representative opposed that approach and, in substance, as I have noted, sought a retrial (it was implicit from the appellant's submissions that he was seeking to bring fresh evidence). No application was made, with any particularity, to adduce further evidence regarding the November incident. In particular, leave was not sought from the Commissioner to call further evidence from the appellant, including evidence in the form of the second affidavit which had been refused by Tabbaa C or oral evidence directed to the November incident. Overall, as I have observed, the appellant did not explain with any particularity the content of the evidence he would have advanced if given the opportunity to do so. The Commissioner adopted the impugned procedure for reasons set out earlier in this judgment. 76The contention advanced by the appellant that the impugned procedure constituted a denial of procedural fairness must be considered in this context. Additionally, it should be observed that the Commissioner did not adopt the impugned procedure in a trial of the matter, per se, but did so in the context of a remitter from the Full Bench in RailCorp v Elleray. In the adoption of the impugned procedure, the Commissioner must be taken as possessed of the terms of the decision given in that judgment as well as the principles governing such remitters. 77When considered in that light, and for the following reasons, I do not consider that the impugned procedure involved a denial of procedural fairness: (1)The approach that the Commissioner foreshadowed was entirely consistent with the terms of the remitter by the Full Bench. In the absence of a direction by the Full Bench that there would be a retrial (and there was no such determination) fresh evidence could only be permitted by leave of the Commission (see Lee at [13]). That the Commissioner gave the parties an opportunity to make submissions on the approach being proposed was consistent with the requirements of procedural fairness. (2)The appellant's legal representative made no application, as such for leave to adduce fresh evidence as to the November incident from the appellant. The absence of such an application undermines the veracity of the appellant's complaint in this respect for two reasons. First, when faced with a remitter in the terms found in the judgment of the Full Bench it was insufficient for the appellant, in the absence of compelling reasons, to simply propose a retrial, per se: a course contrary to the determination of the Full Bench. Secondly, the complaint of a denial of procedural fairness must be diminished in circumstances where the appellant failed to articulate in clear terms below the very issue about which he now sought to complain. (3)In any event, in the context of the remitted proceedings, I do not consider the ruling made by Newall C (even if assessed in the light of an actual application for leave to adduce evidence as to the November incident having been made) constituted a denial of procedural fairness because: (a)It was appropriate for the Commissioner to consider the circumstances in which the receipt of the subject evidence had been refused in the original proceedings before Tabbaa C and the absence of any adverse comment in that respect by the Full Bench (he had the earlier record of the proceedings before Tabbaa C before him); (b)In particular, the Commissioner was entitled to have regard to whether some aspect of the conduct of the appellant's case (particularly as to the November incident) warranted the exercise of a discretion not to re-open the appellant's case. (c)The Commissioner concluded, in substance, that the matter should not be re-opened, in that respect, because the parties had been legally represented in the proceedings before Tabbaa C and had "made what were no doubt informed and deliberate forensic decisions about their evidence in chief and cross-examination" (at [10]). The Commissioner did not expand upon this reasoning but his observations were plainly directed to the manner in which the appellant had conducted his case before Tabbaa C and, perhaps, his defence of the proceedings before the Full Bench. The observations were also referable to the decision made by Tabbaa C as to the admission of further evidence by the appellant concerning the November incident. Newall C was, in my view, referring to the fact that the appellant had, it would appear, eschewed any intention to contest the factual basis for the November incident allegations until very late in the programme for the preparation of the hearing before Tabbaa C (at which time he sought to tender the second affidavit absent an adequate explanation for the late service). (d)These factors constituted a proper basis for the Commissioner to refuse an application by the appellant to call fresh evidence on the November incident, if such an application had been made. They sustain a conclusion that the Commissioner's procedural ruling did not constitute a denial of procedural fairness. (e)Further, the Commissioner identified that no prejudice would arise from his approach (at [12]). This was a conclusion also open to him, as the appellant did have the opportunity to put his version of the November incident before the Board at first instance by way of counsel's address and his cross-examination of the respondent's witnesses. The parties were also given an opportunity to make further submissions in the proceedings before Newall C. (4)The Commissioner was entitled to have regard to the principles in the TAB Act and the CP Act which provide support for the prompt disposition of the proceedings before him. Whilst the procedure he adopted could not be justified upon the basis of such principles alone, he was entitled to take those principles into account in formulating an appropriate procedure for the remitted proceedings, particularly when there had not been demonstrated that an injustice may arise (which would warrant a departure from those statutory imperatives). 78In my view, therefore, there is no proper basis upon which to find that the Commissioner's discretion miscarried in this regard. 79Finally, the failure of the appellant to raise this matter with the Board below, or, to a lesser extent, on appeal before the Full Bench, is also consistent with that conclusion. The appellant did not contend before the Board that to not allow a rehearing, or at least to receive evidence from him, would result in procedural unfairness (see the impugned decision at [12]). In this sense, the inability of the appellant to present evidence below was again linked to a failure to fully utilise the opportunity to advance his case rather than to any denial of procedural fairness. 80Hence, applying the principles of procedural fairness to the particular circumstances of the present appeal, there is no merit to the claim that the appellant was denied procedural fairness in the proceedings below.

Conclusion 81The present appeal was required to be brought against a decision on a question of law. The sole issue raised by the appellant was an alleged denial of procedural fairness. Whilst a denial of procedural fairness may constitute an error of law (although, in my view, there was no such error in the decision below), it does not constitute a decision on a question of law for the purposes of s 23A of the TAB Act.

Costs 82There was nothing in the adjudication undertaken in the present appeal which suggested that costs should not follow the event. This conclusion is supported by the fact that, notwithstanding the grant of leave to appeal in the present case, the appellant failed to properly address the statutory limit of the jurisdiction, namely, a decision on a question of law.

Orders 83The Court makes the following orders: (1)To the extent required, leave to appeal is granted. (2)The appeal is dismissed. (3)The appellant shall pay the respondent's costs as agreed or, if disputed, as assessed.

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: 28 August 2014