Fox v Australian Industrial Relations Commission

COMMISSIONER ROBERTS' DECISION 51 Mr Fox was dismissed by letter dated 29 September 2004, after an investigation by Allianz, because of conduct on the evening of Friday, 3 September 2004. On that evening he attended a Trivia Night held at the Bowlers' Club of New South Wales which had been organised by Allianz. He became involved in a confrontation with Ms Kathy Lyon, another employee of Allianz. If Ms Lyon's account of his statements to her is accepted (as it was by Commissioner Roberts) his conduct was highly confronting and offensive. Mr Fox said, in written and oral evidence to Commissioner Roberts, that his excessive consumption of alcohol caused him to have no recollection of the confrontation. It follows that he was not able to contradict Ms Lyon about those matters through his own evidence. He adopted, in the investigation and before Commissioner Roberts, the position that Allianz (and Commissioner Roberts) had insufficient evidence to accept Ms Lyon's allegations. His position is outlined in a letter written by him to Allianz on 22 September 2004 in which the following appears: 'This letter serves as my official response to your letter dated the 13th September 2004. Before I outline my response to the allegations made against me, I would like to confirm my advice to you and Tim Dawson when we met on the 13th September 2004 that I was stunned when I learned of the allegations against me and have no recollection of the most serious matter, that being the alleged incident at the Bowlers Club. Therefore, like you, I have had to rely on factual evidence to comment on the Bowlers Club incident. After considering the evidence that you have supplied to me and the information that I have been able to gather, I do not believe that there is sufficient evidence to support Kathy Lyon's allegation to the extent that you were in the position to make a written allegation against me; the evidence provided in support of Kathy Lyon is at best hearsay.' and: 'There is no evidence to prove that I said anything to Kathy Lyon when she was standing in front of me. Given that no evidence exists, I contend that there was no factual reason for you to make an allegation against me.' and further: 'In summary, I strongly refute the Bowlers Club related allegation made against me in your letter dated the 13th September 2004 and am particularly concerned that the allegation was made when there is insufficient factual evidence to prove that I said anything to Kathy Lyon when she approach [sic] me, let alone the aggressive dialogue that you allege.' 52 This response does not appear to take much, if any, account of the details provided by Ms Lyon which were conveyed to Mr Fox for his response. Allianz chose to rely on the version of events provided to it by Ms Lyon. It viewed Mr Fox's conduct as serious and wilful misconduct and dismissed him, by its letter dated 29 September 2004, without further notice. 53 Commissioner Roberts came to regard Mr Fox's position as contrived and his professed inability to recall the specific events in question as unreliable. He accepted, in any event, Ms Lyon's evidence and concluded that there was a 'valid reason' for the termination of Mr Fox's employment. 54 The statutory context in which Mr Fox's application to the AIRC was determined was provided by the provisions of the Act as they stood prior to extensive amendments which came into effect on 31 March 2006. At that time s 170CE relevantly provided: '(1) Subject to subsections (5) and (5A), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment: (a) on the ground that the termination was harsh, unjust or unreasonable; …' (Sub-sections (5) and (5A) are not relevant.) 55 Section 170CG gave content to the question whether a termination was harsh, unjust or unreasonable. Section 170CG(3) provided (so far as relevant to the present case): '(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to: (a) Whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; …' (There are a number of other matters which must, if relevant, be taken into account or determined but it was common ground that they were either not relevant or were satisfied in this case.) 56 Commissioner Roberts found that there was a valid reason for the termination of Mr Fox's employment and that the termination of his employment was not harsh, unjust or unreasonable.

The delay issue 57 In the process of reasoning to his conclusion Commissioner Roberts provided a detailed summary of the evidence given by Mr Fox and by a number of other witnesses. He summarised the submissions on behalf of both Mr Fox and Allianz. Commissioner Roberts then turned to an explanation of his conclusions. There were a number of subsidiary issues which arose during the proceedings. Some of them required reference to the evidence of persons other than Mr Fox or Ms Lyon. Analysis of some of these issues was dealt with by Commissioner Roberts pursuant to findings about the reliability and apparent truth of evidence given by certain of these witnesses. This assessment was clearly made, in part, upon the basis of an observation of the witnesses in question. Some of the issues required judgments to be made about competing versions of events. In none of these respects has there been any suggestion that Commissioner Roberts was, by the passage of time, denied the ability to assess and weigh the evidence or that his statements and conclusions were not bona fide exercises of the task committed to him. 58 The critical issue was referred to by Commissioner Roberts as 'the Lyon Incident'. It is as well to set out his conclusions about it in full. 'The Lyon Incident [67] The core issue in this case remains the Lyon Incident. I have not been aided in my deliberations by Mr Fox's claimed total memory loss as to what occurred. In his initial discussions with Allianz following Ms Lyon's complaint, he was prepared to concede that the incident may well have occurred as described by Ms Lyon. He then ascertained that there were no apparent witnesses to the incident and adopted what has come to be known as the "Bart Simpson Defence": "I didn't do it. Nobody saw me do it. There's no way you can prove anything." [68] Mr Fox maintained in his evidence that he had no recollection whatsoever of the Lyon Incident. However, he was prepared to concede that he might have used the words "fuck off" if he had been approached by Ms Lyon in an aggressive manner. Why Ms Lyon would do so at the end of a pleasant Allianz social event was left unanswered. [69] Mr Fox's selective memory of the events of the evening of 3 September 2004 does not strike me as truthful or credible nor does his claim that his memory loss resulted from his excessive consumption of alcohol during the night. Mr Fox's general demeanour in the witness box impressed me as being evasive. The surveillance footage clearly shows Mr Fox walking away from the table where he was seated in a normal manner when he left the Club. The footage also shows him apparently conversing with other persons after Ms Lyon had departed. He then took public transport to go home. He subsequently left a coherent voicemail message for Mr Morrissey complaining about the behaviour of two other Allianz employees ("Josh and Nick") during the evening. In summary, I do not believe Mr Fox's evidence as to his inability to recall events which Allianz relied upon to terminate his employment. [70] On the balance of probabilities, I prefer the evidence of Ms Lyon to that of Mr Fox. In my view, Mr Fox behaved in an aggressive and insulting manner towards Ms Lyon and subsequently decided that his best defence was to maintain that he could remember nothing about it. This leaves me in a situation where I must rely almost totally on the credibility or otherwise of Ms Lyon's evidence in ascertaining the truth of this matter. It is not necessary for me to determine the exact terms of the verbal exchange between Mr Fox and Ms Lyon but I am confident in the view that Mr Fox, at the very least, launched an unprovoked verbal assault on Ms Lyon telling her words to the effect "everyone fucking hates you Kathy" and uttered either the words "fuck you" or "fuck off". [71] Ms Lyon's evidence was consistent and largely credible, though I believe she understated the level of her own alcohol consumption during the evening. I have no reason to disbelieve Ms Lyon's version of the conversation between her and Mr Fox. I do not believe there was any prospect of Mr Fox carrying out any threats. I believe that Ms Lyon was extremely angry with Mr Fox and was determined to pursue the matter. The surveillance footage shows her conversing with Mr Fox in an animated manner for some 82 seconds, during which she remains in close proximity to the Applicant and appears, from her body language, to have done a lot of talking herself. More may well have occurred during the exchange than Ms Lyon has recounted in her evidence but this is impossible to ascertain given Mr Fox's claim to have absolutely no memory of the incident. [72] Ms Lyon's behaviour deserves some comment also. Why she did not terminate the conversation after being told "everyone fucking hates you Kathy" is curious. If Mr Fox then told her that he wished to punch her in the face, her subsequent comments on at least two occasions of "go on then" were most inappropriate for a person holding a senior position at Allianz. She should have walked away at an early stage of the exchange. [73] I strongly suspect that Ms Lyon, a woman whose demeanour in the witness box impressed me as being quite capable of standing up for herself, initially thought she could deal with Mr Fox. But the level of Mr Fox's verbal onslaught proved too much for her. If she had been genuinely fearful for her safety either at the time or in the future, she would have reported the threats to either the Club's security staff or to police. However, none of this detracts from the seriousness of Mr Fox's behaviour. There is no evidence of any pre-existing hostility between Mr Fox and Ms Lyon and I can discern no reason for Ms Lyon to lie about her exchange with Mr Fox. Ms Lyon did not deny at any stage of the Allianz investigation or in her evidence to the Commission that she had used the words "go on then" at least twice to Mr Fox during their conversation. Ms Lyon impressed me as an intelligent person who would have been aware that her admissions on this point would not reflect particularly well on her. The fact that she never dissembled on this point goes greatly in favour of her credibility as a witness.' 59 It will be apparent from the findings set out above that an essential part of Commissioner Roberts' consideration of the respective positions of Ms Lyon and Mr Fox involved his assessment of the reliability of the evidence given by each of them. He states in clear terms that his assessment was assisted by his impressions of Mr Fox and Ms Lyon in the witness box. There is no basis to think that these statements of his impression of the two witnesses conceal an inability to recall the manner in which either gave evidence. However, equally clearly, his factual findings did not, ultimately, turn on the resolution of any conflict in the evidence. In particular, Mr Fox's credit had no real bearing on whether Ms Lyon's evidence should be accepted. That question turned on an assessment of the strength and reliability of her evidence alone. 60 Commissioner Roberts introduced his conclusions with the following statement: '[57] After a careful examination of the evidence, materials and submissions put to me in this matter, I have concluded that there was a valid reason for the termination of Mr Fox's employment and that the termination of employment was not harsh, unjust or unreasonable.' 61 There is no reason to conclude that Commissioner Roberts' examination of the evidence, materials and submissions was not, as he said, careful. The passages I set out above gave clear and cogent reasons for his final conclusion. He explained why, whatever view was taken of Mr Fox's position, Ms Lyon's evidence should be accepted and what it established at a minimum. He concluded: '[78] I have concluded that there was a valid reason for Mr Fox's termination of employment. He behaved towards Ms Lyon in a manner which Allianz was entitled to consider to be incompatible with his duties as an employee and to have caused fatal damage to the relationship between himself and Allianz.' 62 This is clearly a finding based on the assessment of the evidence I have referred to. The conclusion involves a judgment committed to the AIRC by the Act. It turns on Mr Fox's behaviour towards Ms Lyon. That behaviour was established by her evidence. Proof of the behaviour did not involve any rejection of a denial of her testimony by Mr Fox because, on his account, he was not able to contradict her evidence. In my view, it would make no difference to the reliability of Commissioner Roberts' decision if the question had turned entirely on questions of credit but the distinction is relevant for an examination of the Full Bench decision in due course. 63 In Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 ('Expectation') a Full Court of this Court stated the principles and reservations which should be brought to bear in the examination of a judgment under appeal where the judgment was delivered a significant time after completion of the evidence and submissions. In that case judgment was delivered more than 21 months after completion of evidence and almost 17 months after judgment was reserved. Expectation was a case of appellate review pursuant to a right to such review. It did not involve any question of jurisdictional error or specifically consider whether there had been a denial of procedural fairness. The reservations expressed about the reliability of particular findings in that case cannot automatically be seen as suggestions that the jurisdiction committed to the Court at first instance had remained constructively unexercised. Nevertheless, with those reservations noted, the statement of general principles is an important one from which general guidance may be obtained. 64 Expectation emphasises thatdelay, of itself, is not a sufficient indication of appealable error. Rather it is a matter which, with others, may be taken into account. There must, however, be some other feature which, upon careful examination, yields a conclusion that the findings of a trial judge should not be accepted. The Full Court said (at [68] - [70]): '[68] Where there are relevant contemporaneous materials, such as file notes and correspondence, and there is significant delay between the hearing of evidence and the giving of reasons for conclusions, being reasons that do not advert to the contemporaneous materials and do not give specific reasoning for accepting or rejecting the evidence of particular witnesses, the conclusions reached should be given careful scrutiny and consideration by an appellate court where the findings are challenged on appeal. [69] Delay between the taking of evidence and the making of a decision is not, of itself, a ground of appeal, unless the judge could no longer produce a proper judgment or the parties are unable to obtain from the decision the benefit which they should (cf Boodhoo v Attorney-General of Trinidad and Tobago[2004] 1 WLR 1689 at [11]-[12]). Nor does such delay of itself indicate that a trial has miscarried or that a verdict is in any manner unsafe. However, where there is significant delay in giving judgment, it is incumbent upon an appellate court to look with special care at any finding of fact challenged on appeal. In ordinary circumstances, where there is a conflict of evidence, the trial judge who has seen and heard the witnesses, has an advantage. [70] That advantage includes seeing the oral and documentary evidence unfold in a coherent manner, which cannot be replicated on appeal (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, 160 ALR 588 per Kirby J at [90]; Bartlem Pty Ltd v Cox Industries (Australia) Pty Ltd [2002] FCAFC 224, 55 IPR 449 at [87]). That advantage will ordinarily prove decisive on appeal unless it can be shown that the trial judge failed to use or misused such an advantage. The mere fact of a long delay itself weakens a trial judge's advantage. Thus, delay must be taken into account when reviewing findings made by a trial judge after a significant delay from the time when the relevant evidence was given.' 65 In my view the principles discussed in Expectation do nothelp Mr Fox in the present case, even apart from the fact that the delay in the present case was not of the same order as in Expectation. There is nothing to indicate that there was any failure by Commissioner Roberts to 'advert to the contemporaneous materials'. Nor can it be said that he did 'not give specific reasoning for accepting or rejecting the evidence of particular witnesses' (cf Expectation at [68]). Further, in my view, rather than assisting Mr Fox, the firm statements in Expectation in [69] set out above, indicate why Mr Fox's contentions before the Full Bench, and in this Court, were misconceived. It is not in accordance with the authorities, even those of a general nature such as Expectation, to conclude that 'delay of itself indicate[s] that [the] trial has miscarried or that [the] verdict is in any manner unsafe' (cf Expectation at [69]). Moreover, as I indicated earlier, such issues in the hands of an appellate court are not matters going to jurisdiction but, rather, to the establishment of appealable error. The identification and, if necessary, correction of the error is a matter within the jurisdiction and discretion of the appeal court. The evaluation of such matters by an appeal court would not normally be regarded as carrying any jurisdictional implications unless the appeal court had misunderstood the nature of the jurisdiction committed to it or failed to exercise it. 66 The leading authority on the question of delay as illustrating jurisdictional (as opposed to appealable) error is NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 80 ALJR 367; 223 ALR 171 ('NAIS'). The case went to the High Court from a Full Court of this Court (NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 85). All three judges who constituted the Full Court accepted that 'inordinate' or 'unreasonable' delay might suggest a denial of procedural fairness. However, the majority, in the circumstances of that case, were not persuaded that a jurisdictional challenge on that ground had been made out. 67 The facts of the case were unusual. A Bangladeshi family arrived in Australia in late 1996. They applied for protection visas. After refusal of their applications by a delegate of the Minister, they sought a review of that decision by the Refugee Review Tribunal ('the RRT'). Five-and-a-half years later the RRT affirmed the delegate's decision. The applications for review were lodged with the RRT on 5 June 1997. A first hearing was held on 6 May 1998. An important circumstance is then recorded in the dissenting judgment of Finkelstein J as follows at [43]: 'Following the first hearing, but unbeknown to the appellants, the Tribunal conducted an enquiry into the treatment of inter-religious marriages in Bangladesh. The evidence does not indicate when this investigation commenced. It is, however, clear that the inquiry was taking place in 1999 and, for reasons which will soon become apparent, may have extended into 2001. At all events, the inquiry was being undertaken at that point because the tribunal had not formed the view that the appellants' claims should be disbelieved. So much was expressly conceded (and correctly so) by counsel for the Minister.' 68 There was then a second hearing on 19 December 2001. The RRT decision was finally handed down on 14 January 2003. In that decision the RRT made a series of adverse findings against the applicants arising out of the oral evidence given at the first hearing. Some of the evidence was found to be 'implausible', some was found to have been fabricated. Finkelstein J, whose conclusion on the jurisdictional question was upheld in the High Court, referred to these circumstances in the following way (134 FCR 85 at [63] - [64]): '[63] The appellants lost their case before the tribunal because their evidence was not believed. The Tribunal was only entitled to reject their evidence after giving full consideration to what was said and the manner in which it was said, if necessary in light of other relevant facts known to the Tribunal. To succeed on the appeal the appellants must show that there is a real and substantial risk that the Tribunal has either forgotten much of the evidence that was led so many years ago or that it can no longer adequately and fairly assess the veracity of the witnesses who gave that evidence. It is impossible for the appellants to make out the first point. The evidence was transcribed. A reading of the Tribunal's reasons, in particular those parts of the reasons which record the appellants' claims, suggests that it took most of its summary of the evidence from the transcript. On one view, it may be said that in its reasons the Tribunal did little more than summarise the transcript. [64] The appellants' demeanour stands in a different light. The transcript discloses nothing about demeanour. Hence the Tribunal must rely on its memory and any notes that may have been taken. It is common enough for decision-makers to make notes recording their impression of witnesses. That may have happened here. But if notes were taken, their content was not sufficient for the tribunal, at least before it conducted its inquiry after the first hearing, to find against the appellants on credit. In this connection, it is the first hearing which is the critical hearing because most of the appellants' evidence was given on that occasion. Moreover, it was this evidence with which the Tribunal was principally concerned in its reasons, basing its findings on the appellants' credibility with particular reference to that evidence.' 69 Those considerations led Finkelstein J to conclude (at [65]): 'Before it rejected their evidence, the tribunal was required (and it no doubt attempted) to assess the appellants' creditworthiness by having regard, among other things, to their demeanour. Was the Tribunal in a position to discharge that obligation four and half years after the appellants gave their principal evidence? I have no doubt that the answer is in the negative. The opposite conclusion is simply fanciful. Were it not for the second hearing, I even doubt that the Tribunal would have recognised the appellants if it ever saw them again.' 70 Obviously enough there is no parallel with the facts of the present case. The question for the Full Bench in the present matter was whether, from a case of such extreme circumstances, a principle should be distilled which established that Commissioner Roberts denied Mr Fox procedural fairness. In the High Court there were three judgments which constituted the majority (Gleeson CJ, KirbyJ and Callinan and Heydon JJ). 71 Gleeson CJ said (80 ALJR 367; 223 ALR 171 at [3]): 'There is no dispute that the delay on the part of the Tribunal was inordinate. There is nothing in the reasons of the Tribunal that seeks to explain or justify the delay. Nor is there anything in those reasons that recognises any possible effect of delay on the decision-making process, or seeks to explain how any possible problem resulting from the delay might have been taken into account or overcome. The reasons are expressed in a form that appears to treat the time involved in the Tribunal process as immaterial to the adjudicative function.' 72 However, his Honour pointed out (at [5]): 'Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare.' 73 He also said (at [6]): 'The context in which delay occurs will affect any legal consequences that may flow. In this case, the Federal Court was not sitting as a court of appeal, considering whether there were material factual errors in the reasoning of the Tribunal, and deciding whether to uphold or set aside the Tribunal's decision by reference to the principles which guide appellate intervention in the administration of civil or criminal justice. Here the focus was upon alleged jurisdictional error, specifically in the form of denial of procedural fairness, in administrative decision-making.' 74 Gleeson CJ drew attention to the nature of the proceedings before the RRT, the extreme nature of the delay, the necessity to examine whether 'there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired' and concluded that the combination of circumstances supported an inference that such a risk should, in that case, be inferred. He said (at [9] - [10]): '[9] Because the Tribunal's reasons ignored the question of the time that had elapsed between the taking of evidence and the final assessment of that evidence, it can never be known how that assessment was in fact affected by the delay. What must be kept in mind is that the question concerns the fairness of the procedure that was followed. It was an inquisitorial procedure that, in the circumstances of this case, depended to a significant extent upon the Tribunal's assessment of the sincerity and reliability of the appellants. That is one of the reasons why they were entitled to, and were given, a "hearing". An important purpose of the hearing was to enable the Tribunal to do just what it ultimately did, that is, make a judgment about whether the appellants were worthy of belief. Appropriately, effort was directed to a search for independent verification of the claims they were making, and objective justification of the fears they were expressing. Yet ultimately the procedure directed attention to the Tribunal's assessment of them as witnesses in their own cause. A procedure that depends significantly upon the Tribunal's assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal's capacity to make such an assessment is impaired.

[10] In a case of failure to give a hearing when a hearing is required, the person complaining of denial of procedural fairness does not have to demonstrate that, if heard, he or she would have been believed. The loss of an opportunity is what makes the case of unfairness. The appellants in this case do not have to demonstrate that the Tribunal's assessment of them probably would have been more favourable if made reasonably promptly. What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal's capacity to make a proper assessment of their sincerity and reliability. The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal.' (emphasis added) 75 The availability, from the circumstances of that case and having regard to the nature of the RRT's inquisitorial procedure, of an inference to sustain a finding of real and substantial risk is, in my respectful view, an important aspect of his Honour's stated reasons. In the present case none of the elements to which his Honour refers are present. The period of delay is not of itself extreme in the sense discussed in NAIS. The procedures to be followed by Commissioner Roberts were not inquisitorial but adversarial. His task was to find whether a valid reason existed for termination. In that task any assessment of the credit of witnesses giving evidence about contested issues of fact did not play the same role or have the same significance as the task of the RRT in assessing the 'sincerity and reliability' of persons who claim protection by Australia as refugees. He was assisted by submissions about the facts, the evidence and the law by legal representatives of the parties. There was, in my view, no foundation for an inference of 'a real and substantial risk that the [Commissioner's] capacity to assess the [witnesses] was impaired'. His findings, in any event, did not, ultimately, turn on adverse findings of credit but on uncontradicted factual evidence. 76 Kirby J also pointed out (80 ALJR 367; 223 ALR 171 at [78]): 'As numerous authorities attest, the issue presented by the complaint of delay is rarely, if ever, about the delay itself. The issue is ordinarily about the effect of the delay upon the decision that is impugned.' 77 Kirby J concluded (at [102]) that '[b]y reason of the delay the "decision" was presumptively flawed by jurisdictional error' and (at [106]) that '[i]t can reasonably be inferred from the serious delay in this case that there was a real risk that the Tribunal's capacity to assess the appellants' evidence was impaired. As such, the decision was flawed for want of procedural fairness'. He agreed with the analysis and conclusion of Callinan and Heydon JJ as to whether 'the Tribunal could remember, assess and evaluate that evidence for the credibility findings it made four years and seven months later'. 78 Callinan and Heydon JJ observed (80 ALJR 367; 223 ALR 171 at [163]): 'The only sort of error which the Federal Court and this Court may correct in a matter of this kind is jurisdictional error. A failure to make a quick decision would not, in the context of the Act overall, of itself constitute jurisdictional error. However, the presence of s 420 in the Act provides an indication of the scope and objects of the Act, and it is a section to which some regard may be had in deciding whether an excessively prolonged decision is one that can be said to have been made fairly.' 79 The unusual nature of the jurisdictional challenge in NAIS, may be appreciated from the fact, as Callinan and Heydon JJ record (at [166]): 'Neither the appellants nor the first respondent cited any cases in which excessive delay has been accepted as a basis for a review of an administrative decision.' 80 In the passages with which Kirby J specifically concurred Callinan and Heydon JJ said (at [168] - [170]): '[168]In our opinion it is not possible to say that the Tribunal's decision, depending so much as it did, on the credibility of the appellants who gave oral evidence, was made fairly. Their application for review was lodged on 5 June 1997. The decision was delivered more than five and a half years later, on 14 January 2003, and after two sessions of intervening oral evidence separated by a period of about three and a half years. This was not a matter in which the Tribunal merely had to weigh up oral evidence against written evidence. It had to weigh up oral evidence given on one occasion with oral evidence given three and a half years later, as well as the further written material that had come to hand. That is not an exercise that can satisfactorily and fairly be carried out over widely separated serial proceedings.

[169] The outcome of the appellants' application for review of the decision not to grant them protection visas did depend in part at least on demeanour and credibility. The appellants undertook the task of persuading the Tribunal that they did hold well-founded fears of persecution. That in respect of some of the abuses they claimed to have suffered, they admitted fabrication, or were unable to deny collusion, provides no answer to their entitlement to have their other claims and their applications assessed in a comprehensive, unattenuated and not excessively delayed process. Unlike the majority in the Full Court of the Federal Court we are unable to regard the possibility, indeed, even the likelihood if that be the case, of the consultation of contemporaneous notes and tape recordings of the proceedings, as a satisfactory substitute for the observation and formation of impressions of persons in the flesh, and the timely personal commitment of these to paper as part of the process of making a decision in the light of the materials supplied to the Tribunal and all the arguments advanced to it.

[170] It is right, as Finkelstein J in dissent said in effect, that what appears to be a summary only, without analysis, of the transcript erodes confidence in the findings of fact of the Tribunal. Demeanour was clearly of some relevance here. One example suffices to make the point. The Tribunal purported to be influenced by the daughter's failure to display signs of trauma or concern while recounting the threats she said were made to her on her way to church, and her parents' reaction to her recounting of the incident. This is a matter of some subtlety. To delay committing to paper a recollection of this evidence until a long time afterwards runs a real risk of failing to recapture and give effect to that subtlety.' 81 Those observations must be considered in company with the strictures which follow as recorded in [172] - [174] as follows: '[172]… Another way in which the Tribunal can disable itself from giving consideration to the presentation of a case arises where it permits so much time to pass that it can no longer assess the evidence offered. That is what happened here. The first respondent contended that the appellants could not succeed in the absence of findings that "delay by the Tribunal actually resulted in a material failure to analyse the oral evidence of the Appellants." That finding ought to be made because it can be inferred from the delay that, in the absence of contrary evidence, the Tribunal had deprived itself of its capacity to do so, and there is no contrary evidence.

[173] The circumstances of this case are specific to the Refugee Review Tribunal.

[174] This is in our opinion a very exceptional case. The facts, it is to be hoped, are extraordinary. It is one in which the Court is bound to hold that the proceedings have not been fairly conducted, by reason of the delays, both from beginning to end, and between each episode in them. We cannot accept that the only relevant delay is that which occurred between the second oral hearing and the giving of the decision. This is so because the decision was concerned with demeanour on two occasions, long separated in time, and each requiring to be related and compared to the other, and weighed with a considerable volume of written evidence.' (emphasis added) 82 In my view the conclusions in NAIS, and the principles from which those conclusions proceed, have no application to the facts of the present case. There is in the present case no basis for the presumptive inference upon which each of the majority judges proceeded. That inference arose from circumstances which find no parallel in the present case. 83 I see no reason to conclude that there was any basis upon which it was open to the Full Bench to find that Commissioner Roberts had committed a jurisdictional error in making his decision in the proceedings before him based on the fact that the decision was given 10˝ or 12 months after hearing. Moreover, any speculative argument to that effect is, in my view, decisively rebutted by the terms of his decision and the explanation of his findings. We are not concerned, of course, with whether the Full Bench might, in the proper exercise of its appellate role, have intervened should it thought it necessary to do so by reason of its own evaluation of the evidence to deal with some general question of the fairness of the overall result. Those are matters which fall well outside the scope of the present proceedings.

The credibility issue 84 Another challenge to Commissioner Roberts' decision which was advanced to the Full Bench, and repeated in this Court, was that Mr Fox was denied procedural fairness because it was not squarely put to him that his professed inability to recall particular events on the night of 3 September 2004 was a position of convenience, adopted as a stratagem for the purposes of his case. I have already explained why the issue was not determinative of the question whether there was a valid reason for the termination of his employment but the proposition seems to me in any event to be unsound. 85 There can be no doubt that Mr Fox's professed inability to recall what was said between him and Ms Lyon was a live issue between the parties. In a letter to him dated 17 September 2004, during the course of the investigation into his conduct, he was told: 'Greg, I am confused by your detailed recollection of some events and your inability to remember other details. You have corrected us and said that the incident occurred at 11.30pm and advised that Kathy stood in front of you for two minutes. Yet, you also state that you "have no recollection of the most serious matter, that being the alleged incident at the Bowlers Club". Can you please explain the differences in your recollection;' 86 In a further letter dated 21 September 2004 he was told: 'Greg, we have responded twice to your requests for clarification regarding matters surrounding the incident but have not yet received a response from you on the central issue. I note that during our meeting on Monday 13 September 2004 you advised that you had been drinking and that whilst you could not recall saying what Kathy has alleged, you acknowledged that you may have. Your letter of 17 September then stated that you have no recollection of the incident. However, in the same letter you are able to recall specific details such as the time that Kathy approached you. I remain baffled by the differences in your recollection and am concerned that you appear to be evading the central issue.' 87 Mr Fox's response was: 'After considering the evidence that you have supplied to me and the information that I have been able to gather, I do not believe that there is sufficient evidence to support Kathy Lyon's allegation to the extent that you were in the position to make a written allegation against me; the evidence provided in support of Kathy Lyon is at best hearsay.' 88 Mr Fox then referred to a tape of CCTV coverage of the night in question which showed him and Ms Lyons facing each other but had no soundtrack. He continued: 'There is no evidence to prove that I said anything to Kathy Lyon when she was standing in front of me. Given that no evidence exists, I contend that there was no factual reason for you to make an allegation against me.' and concluded, after further argument, by saying, in relation to this incident: 'In summary, I strongly refute the Bowlers Club related allegation made against me in your letter dated the 13th September 2004 and am particularly concerned that the allegation was made when there is insufficient factual evidence to prove that I said anything to Kathy Lyon when she approach me, let alone the aggressive dialogue that you allege.' 89 In the letter terminating his employment Allianz said: 'You have "denied" making the alleged statements to Kathy but have not provided us with any information about the nature or content of the conversation that occurred. Kathy Lyon's account of the incident, which she repeated to witnesses immediately after the event and which they have confirmed to us, has been consistent and credible. We have taken into account your allegation that a witness was not visible on the video and we have conducted further investigations in this regard. In reviewing all available information, the company prefers the evidence provided by Kathy Lyon. Your responses have been evasive and have continued to focus on peripheral matters, rather than respond to the key issue, as repeatedly requested by the company. You have also failed to address the inconsistencies in your recollection, as highlighted in our letter of 21 September 2004.' 90 It seems to me, in these circumstances, that it was up to Mr Fox, in the challenge to the termination of his employment, to come to grips with this issue. There was no reason for any application of the principle distilled from Browne v Dunn (1893) 6 R 67 (HL) (see Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 per Glass JA at 224-225, per Mahoney JA at 236; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 22-23). There was no denial of procedural fairness (Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305). 91 In any event, it was squarely put to Mr Fox in cross-examination (in a passage also referred to by the Full Bench) that, despite his representations to Allianz that he had no recollection of the specific events, in fact he did recall. He was asked in cross-examination, having been reminded of the chain of correspondence I referred to earlier: 'And you didn't inform your employer of why you had this inconsistent recollection because, again, Kathy Lyon's recollection of the events is correct, isn't it? You were trying to distract your employer from the main allegations? That's correct, isn't it?---No. The reason why was because you remembered that you had said the things that she alleges that you said to her?---No.' There was no re-examination on this issue. 92 Reference should also be made to the written submissions. In the applicant's written submissions to Commissioner Roberts it was contended in the opening paragraph: '1. Mr Fox gave evidence in a frank and forthright manner, and showed no inclination to colour his case. There is nothing in the evidence he gave nor the manner in which he gave it which would cause the Commission to have any doubts about his credibility.' 93 Later it was submitted: 'The question of the applicant's inability to remember needs to be addressed. The Commission must accept that Mr Fox cannot remember the alleged incident for the following reasons:' 94 Eight matters were referred to. Some suggested intoxication, or that Mr Fox was asleep just before the incident. Some suggested that, for other reasons, it should be accepted he was genuinely unable to recall. The final matter advanced was that it was not put to him in cross-examination that he could remember what happened. I have already indicated that this proposition is not sound. Mr Fox's representatives, by these submissions, sought a positive finding in his favour about this issue. Indeed, it was suggested that Commissioner Roberts was obliged to find in his favour. Commissioner Roberts was not bound to simply accept Mr Fox's assertions, whether or not the matter was raised in cross-examination. Moreover, as a result of the submission itself Mr Fox was exposed to the possibility that it might be rejected. The respondent's written submission put the matter squarely in issue. It submitted: 'The Respondent submits that the evidence given by the Applicant at best demonstrated an inconsistent and selective recollection of events. This alone casts doubt on the credibility of the Applicant's evidence.' 95 Later it submitted: 'The Applicant submits that his inability to recollect the Lyon Incident was due to heavy intoxication. However, on the basis of the evidence, it is clear that the Applicant's recollection was in fact selective and the extent of his inebriation should indeed be doubted. The Respondent makes this submission for the following reasons:' 96 The submission was supported by reference to seven factors. The detail is no longer important. What is relevant is that the effect of the respondent's submissions was that it should not be accepted that Mr Fox was unable to remember what he said to Ms Lyon. Issue was joined. Mr Fox's representatives clearly understood that to be so, and the significance and effect of the respondent's submission, because the written submission in reply on his behalf said: '… the suggestion that the applicant was lying about his inability to recollect the incident because he could remember certain events later on in the evening is flawed.' 97 In my view there is no substance in the suggestion that Commissioner Roberts was precluded from expressing or taking into account the doubt he formed about the unreliability of Mr Fox's professed inability to recall anything of the critical events.

THE APPEAL TO THE FULL BENCH 98 The appeal to the Full Bench was governed by ss 170JF and 45 of the Act. Section 170JF provides: '(1) An appeal to a Full Bench under section 45 may be instituted by any person who is entitled under section 170JD to apply for the variation or revocation of an order under this Part. (2) For the avoidance of doubt, an appeal to a Full Bench under section 45 in relation to an order made by the Commission under Subdivision B of Division 3 may be made only on the grounds that the Commission was in error in deciding to make the order.' 99 The establishment of error is thus a critical precondition to a successful appeal in relation to termination of employment. As will be seen this provision accords also with authority which declares the general nature of appeals within the AIRC. 100 Section 45 provides, so far as relevant: '(1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against: … (c) a decision of a member of the Commission not to make an award or order; … (2) A Full Bench shall grant leave to appeal under subsection (1) if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.' 101 The Full Bench declined to grant leave to appeal. That was a discretionary decision. The nature of appeals within the AIRC, including appeals against discretionary decisions, has been authoritatively declared by the High Court in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 ('Coal and Allied') as follows (at [17] and [21]): '[17] Because a Full Bench of the Commission has power under s 45(6) of the Act to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under sub-s (7) are exercisable only if there is error on the part of the primary decision-maker. And that is so regardless of the different decisions that may be the subject of an appeal under s 45 … [21] Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process.' 102 The Full Bench clearly appreciated the significance and effect of the legislative scheme and the authorities. It referred to them in its decision. It also appreciated the distinction between grounds of appeal raising errors in the exercise of a discretion and grounds which raised jurisdictional matters. It said: '[20] Whilst the majority of the grounds of appeal can be characterised as discretionary error, the grounds pertaining to delay and procedural fairness raise jurisdictional issues. On these issues the Full Bench is concerned with whether the member at first instance reached the right decision. It is not simply whether the decision of the single member was reasonably open to him or her.' 103 It summarised the appellant's primary contentions in the following way: '[25] We turn to the arguments advanced by the appellant on delay and our approach in dealing with them. The appellant argued that the Full Bench should intervene in Commissioner Roberts' findings because there are a number of gaps and defects in the decision which would lead the Full Bench to conclude that not all matters were considered. This error may be explained by the delay in handing down the decision which was just short of twelve months. Commissioner Roberts made his decision "in a vacuum without any real memory of what occurred at the trial, other than by reference to transcript". [26] As we comprehend the appellant's submissions reliance is placed upon two propositions arising out of the delayed decision. First, it was argued that the delay was so extraordinary that there was an absence of fair process which led to a denial of procedural fairness. This constituted a jurisdictional error. [27] Second, the appellant relied on High Court authority to argue that because of the delay Commissioner Roberts was obliged to make clear in his decision that he had gone back to the original evidence in making his findings on credit. In the appellant's submissions there is nothing in the decision to indicate this was done. Failure to approach his decision in this way resulted in error. The Commissioner took an easy option. The proposition on delay was that Commissioner Roberts failed to give reasons why the evidence of Mr Fox should be rejected, specifically no reasons were given to the finding that Mr Fox was an evasive witness.' 104 It then dealt with the principles stated in NAIS and Expectation. 105 The Full Bench dealt separately with the evidence of Ms Lyon and Mr Fox and Commissioner Roberts' evaluation of that evidence. It did so, at least in part, in light of submissions made by Mr Fox that Commissioner Roberts had arrived at conclusions which were falsified by incontrovertible facts or which depended on glaringly improbable evidence (see Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 and Fox v Percy (2003) 214 CLR 118 at [28] - [29]). Those submissions were not accepted. 106 So far as Ms Lyon was concerned the Full Bench concluded its consideration of the challenge to Commissioner Roberts' evaluation of her evidence with a reference to the reliance upon the suggested delay in handing down his decision. The Full Bench said: '[56] We have given serious consideration to the appellant's argument on the effect the delay in the decision may have had on the Commissioner's findings on Ms Lyon's evidence and in particular the weight given to the CCTV footage. We agree with the respondent's submission that it is the consequences of the delay which must be considered to assess whether there is real and substantial risk that the tribunal's capacity to make the assessment is impaired. In this matter all of the evidence including the CCTV footage is either consistent with or not inconsistent with the evidence of Ms Lyon. [57] We are satisfied that there was no real or substantial risk to the Commissioner's capacity to make the requisite assessments. We also reject the submission of the appellant that Commissioner Roberts took the easy decision given the circumstances where he carefully analysed Ms Lyon's evidence and decided he was confidently able to make positive, but not unqualified, findings going to her credit. [58] We can discern no error in Commissioner Roberts' reasoning process or findings on Ms Lyon's credibility which would lead us to interfere with his decision on the basis of error.' (emphasis added) 107 The effect of these findings was, amongst other things, to reject the contention, based on NAIS, of a denial of procedural fairness by reason of delay. The passage at [57], which I have emphasised, denies the essential premise upon which any such argument depends. 108 The Full Bench also rejected the challenge made to the evaluation of Mr Fox's evidence. Having done so, it went on to observe that, in the circumstances of the case, and given Mr Fox's professed lack of recall, because Commissioner Roberts had accepted Ms Lyon's evidence it was inevitable that a finding would be made that a valid reason existed for the termination of Mr Fox's employment. Accordingly it was not necessary 'to further examine the consequences of the delayed decision upon the evidence of Mr Fox'. In order to set the matter in context it is necessary to set out the whole of the Full Bench statement of its reasons in that regard. 'Mr Fox [59] The appellant argued that Commissioner Roberts erred in finding that Mr Fox was an evasive witness, had a selective memory and resorted to a "Bart Simpson defence". It was submitted that these findings could not reasonably be made in light of what was said to be the consistent and credible evidence given by Mr Fox. [60] The appellant submitted that Mr Fox's evidence on recall was not challenged and there was "overwhelming and uncontradicted" evidence that he was so intoxicated he could not recall the Lyon Incident. On the basis of comments made by Commissioner Roberts during proceedings, the appellant's counsel had proceeded on an assumption that this evidence was accepted and thus did not seek to re-examine Mr Fox on it, nor seek to produce expert material on the effects of intoxication and recall. Moreover, the Commissioner failed to give any reasons for his demeanour findings and ignored further evidence pointing to Mr Fox's intoxication and recall. In this respect the appellant relied on the following observation: "Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances." [61] In our opinion a fair reading of the whole of paragraphs [67] to [69] does provide adequate reasons for the Commissioner's adverse findings about the evidence given by Mr Fox. However even if we were to accept, without forming a concluded view, the appellants submission that no adverse finding should have been made about Mr Fox's evidence that he could not recall the Lyon Incident because he was intoxicated and also that the Commissioner failed to provide adequate reasons for finding Mr Fox's general demeanour was evasive, this is insufficient to persuade us that the Commissioner's overall conclusion miscarried. As we have earlier observed, when considering if there was a valid reason the core question the Commissioner had to make a finding about was whether the Lyon Incident occurred. About that incident the evidence presented no real conflict to be resolved. Mr Fox could give no reliable evidence about the incident; Ms Lyon could and her evidence about it was accepted. We have concluded that the findings made by the Commissioner were open to him. Even if the Commissioner had not made any adverse findings about Mr Fox, his complete lack of recall of the incident would not have resulted in a different finding about whether a valid reason existed for the termination of his employment. It was on Ms Lyon's evidence that this finding is based. We agree with the respondent's submission that this was not a case in which there were competing versions in respect of contested facts. Rather, it was a question of whether Ms Lyon's evidence of what occurred was to be accepted. For the reasons we have earlier given no other evidence called her version into question. [62] We agree also with the respondent's submission that the issue of Mr Fox's memory did not form a substantive part of the case below about whether the alleged conduct occurred. Even accepting that Commissioner Roberts was wrong in his finding over Mr Fox's credibility, it does not follow, for the reasons we have given, that his findings on Ms Lyon's evidence and hence valid reason are in error such as to warrant the Full Bench intervention. [63] On the basis of also accepting that there was a denial of procedural fairness in the failure to give reasons for his finding on Mr Fox's credibility, and the Commissioner's failure to address the appellant's evidence on recall, particularly in light of the delay in handing down the decision, we have concluded that putting to one side that part of the decision would not affect the finding on valid reason in circumstances where we have concluded the Commissioner did not err in respect of his finding on the Lyon incident. This is a case where a breach of procedural fairness could not have affected the outcome of the case. (A footnote reference is here given to Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145) [64] Given our conclusion that the findings made with respect to Mr Fox's credit stand alone from those made in respect of Ms Lyon's credit and given our finding that acceptance of the evidence of Mr Fox without any adverse comment would still have been likely to have resulted in the same finding about a valid reason existing, we are not required to further examine the consequences of the delayed decision upon the evidence of Mr Fox. Nor are we required to make a ruling with respect to the appellant's application for leave to admit fresh evidence on appeal.' (emphasis added) 109 It is quite clear that the Full Bench rejected the argument that Commissioner Roberts gave inadequate reasons for his conclusions about Mr Fox's credibility. There is no substance, furthermore, for the reasons I gave earlier, in any suggestion that he was precluded, in fairness to Mr Fox, from forming and stating conclusions about that matter. 110 Mr Fox contended in this Court that the Full Bench failed to exercise its jurisdiction by declining, as unnecessary, to enter upon any further examination of the consequences of delay in handing down the decision, so far as his evidence was concerned. I do not accept that the passage of time between the hearing and/or delivery of written submissions and the decision made by Commissioner Roberts carries any presumptive indication that a decision-maker is thereby rendered unable to give a fair decision on matters involving the assessment of oral evidence. The proposition that decisions must, to be procedurally fair, be delivered within some arbitrary stated time should not be accepted. In my view there is no authority which stands for that proposition or which substitutes any test of that kind for an examination of all the circumstances, including, most importantly, the suggested consequences of any delay. 111 Moreover the Full Bench was correct to draw attention to the legal foundation for the claim brought by Mr Fox with which Commissioner Roberts dealt. The question at issue was whether there was a valid reason for the termination of Mr Fox's employment. 112 The Full Bench rejected the applicant's arguments even upon the assumption that the criticisms of Commissioner Roberts' treatment of Mr Fox's evidence and credibility were well-founded and even if there was substance in a complaint about delay. That does not mean that those arguments were accepted. It seems clear that they were not. 113 Having regard to the fact that the central issue for determination was whether there was a valid reason for the termination of Mr Fox's employment, to the fact that Ms Lyon's evidence had been accepted by Commissioner Roberts, to the fact that Mr Fox's challenges to the evaluation of Ms Lyon's evidence had been rejected, and to the fact that, on the view most favourable to him, he did not, and could not, contradict Ms Lyon's evidence, the Full Bench concluded that no different conclusion would have been reached on the issue whether there was a valid reason for the termination of Mr Fox's employment and, accordingly, none of the challenges to Commissioner Roberts' decision, even if made out, could have affected the outcome of the case. It was in this connection that the Full Bench referred, by way of footnote, to the decision of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 ('Stead') at 145. I am unable to see any error in the Full Bench's approach to these issues or its application of Stead. These passages were, in my view, secondary explanations by the Full Bench intended to confirm the result dictated by its conclusion stated in the first sentence in [61] but whatever view is taken of them they do not provide an occasion for intervention by this Court. 114 On the foundation thereby explained, the Full Bench said (at [64]) it was unnecessary to deal further with the alleged effect of delay on the evaluation of Mr Fox's evidence. Given the reasoning earlier disclosed I can see no error in this approach. As I pointed out earlier, Commissioner Roberts' findings did not ultimately rest on his evaluation of Mr Fox's credit but upon his acceptance of Ms Lyon's uncontradicted evidence. The Full Bench was correct to so find. 115 In any event, there is no respectable basis to suggest that Commissioner Roberts, if capable of conscientiously applying himself to the evaluation of Ms Lyon's evidence, as the Full Bench found, was disabled from also applying himself, in accordance with his obligations to provide procedural fairness, to the task of assessing Mr Fox's evidence - i.e. that there was, uniquely, in Mr Fox's case a 'real or substantial risk to [his] capacity to make the requisite assessments' (cf. [57] of the Full Bench decision quoted earlier). In my view the challenges to Commissioner Roberts' decision were speculative and without any real substance and they provided only a flimsy foundation for any attack on the Full Bench decision. If there had been any error it would concern the evaluation of the evidence and, for reasons to be discussed shortly, would not be a jurisdictional error but an error within jurisdiction.

The 'fine- tooth comb' 116 At one point in its decision the Full Bench referred, pointedly, to the enjoinder expressed by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 that: 'The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.' 117 The same principle is referred to in the majority judgment (185 CLR at 272). Both the majority judgment and Kirby J referred to the judgment of a Full Court of this Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 286-287 where a similar principle was stated in relation to the consideration by this Court, of appeals on questions of law from the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). 118 Contrary to Mr Fox's submissions to this Court the principle is one which applies to appellate, as well as jurisdictional review. The principle emphasises the need for adequate identification of the error which is alleged. An error is not to be found merely in looseness of language or infelicity of expression. In view of the crucial importance, in the statutory scheme, of error as the gateway to appellate review by the AIRC, in my view the principle was equally apposite in the present case. 119 Mr Fox submitted that the Full Bench had thereby misdirected itself, in a way which revealed jurisdictional error, about the nature of its role. The implication was that the Full Bench had taken an insufficiently rigorous approach to the examination of whether error existed. The submission should not be accepted. The Full Bench was correct to concentrate on the substance of the matter and treat with reservation any textual dissection of Commissioner Roberts' reasons that overlooked the real character of his findings. 120 In my view no jurisdictional error on the part of the Full Bench was identified or appears from its reference to, or application of, this well established principle.

Employment nexus 121 There was one further matter raised before the Full Bench and by the application in this Court. Commissioner Roberts found that the events which occurred on 3 September 2004 were sufficiently connected with Mr Fox's employment that there was a 'nexus' between his alleged conduct and the termination of his employment which sustained the proposition that there was a valid reason for that termination. That conclusion was challenged on appeal before the Full Bench. The Full Bench concluded at [37]: 'Whether or not the jurisdiction of s.170CE(3)(a) (namely whether there is a valid reason) is attracted will depend on the facts of each case. In the circumstances before Commissioner Roberts, taking into account the whole of the evidence, the event was properly characterised as a work function. There is no jurisdictional bar to a finding on valid reason.' 122 The conclusions reached by Commissioner Roberts and by the Full Bench on that issue are, in my view, in the present case, unassailable on the present application. Ultimately the question was whether there was a valid reason for termination. An evaluation of the quality of the connection between the social function organised by Allianz and the conduct of its employees at that function, albeit outside normal working hours, involved factual findings and value judgments. There is no foundation, in my view, for the proposition that the Full Bench failed to apply itself, in that respect either, to the task committed to it by the Act. This aspect of the present application must also be rejected.

JURISDICTIONAL AND NON-JURISDICTIONAL ERROR 123 The applicant in the present case seeks relief by way of mandamus and certiorari. Certiorari is ancillary relief and in this case depends upon, at least, the availability of mandamus. One classic statement concerning the grant of mandamus is to be found in Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 where Barwick CJ said (at [478]): 'It is settled law that if the person having a duty to hear and consider misconceives what is his relevant duty, he will have failed to perform that duty and may be compelled by mandamus to perform it according to law. 124 The decisive statement about the appellate role and function of the AIRC against which the principles applying to the grant of mandamus must be measured, is to be found in Coal and Allied. 125 That matter went on appeal to the High Court from a Full Court of this Court which had concluded that jurisdictional error had been committed because a Full Bench of the AIRC had misunderstood the jurisdiction of the Commission. In the High Court, Gleeson CJ, Gaudron and Hayne JJ made an important distinction which focussed attention upon the role of the Full Bench itself in its appellate capacity. Their Honours said (at [30] - [32]): '[30] The Full Court concluded that the Full Bench of the Commission fell into jurisdictional error because it proceeded on the basis that the decision of Boulton J was attended by appealable error when it was not. And it did so, in the view of the Full Court, because of its "fundamental misconception ... of the Commission's role arising from the combined operation of s 170MW(1) and (3). To misconceive the role of the Commission under s 170MW of the Act (assuming that that is what the Full Bench did) does not constitute jurisdictional error on the part of the Full Bench.

[31] There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it "misunder[stood] the nature of [its] jurisdiction ... or 'misconceive[d] its duty' or '[failed] to apply itself to the question which [s 45 of the Act] prescribes' ... or '[misunderstood] the nature of the opinion which it [was] to form'". The Full Bench did none of those things. [32] In his reasons for decision, Giudice J proceeded on the basis that the Full Bench could intervene only if there was error on the part of Boulton J. In this his Honour was correct. Giudice J held that there was error on the part of Boulton J. If he was wrong in that view (a matter upon which it is unnecessary to express an opinion), that was an error within jurisdiction not an error as to the nature of the jurisdiction which the Full Bench was required to exercise under s 45 of the Act. Accordingly, it was not an error in respect of which relief could be granted by way of prohibition or mandamus under s 75(v) of the Constitution.' (emphasis added) 126 Accordingly, it is of fundamental importance to distinguish between a correct appreciation by the Full Bench of the nature of its own role and other errors, if any, it might make when applying itself to its task. Notwithstanding the earlier, more general statements in Craig v South Australia (1995) 184 CLR 163 ('Craig') I take Coal and Allied to be the authoritative statement of the law so far as it concerns the role and function of the AIRC. The discussion in Craig did not purport to be exhaustive (see at [176] - [177]). The only reference to Craig in Coal and Allied is in the judgment of Kirby J to illustrate the proposition that 'distinguishing cases where the officer or authority has simply made a factual or legal error in the course of reaching a decision from cases where that error is classified as a constructive failure to exercise jurisdiction is not at all easy' (see at [82]). However Kirby J, like Gleeson CJ, clearly made a distinction, so far as the Full Bench of the AIRC is concerned, between errors of jurisdiction and errors within jurisdiction. His Honour said (at [80] - [82]): '[80] Obviously, in so far as the Act confers on the Full Bench a power to determine appeals without any further appeal from it, it must be accepted that this envisages the possibility that decisions of the Full Bench will sometimes be made which contain errors of fact or law. Such errors will be made within the exercise of the Full Bench's appellate jurisdiction. They are not susceptible to any appellate correction. In the nature of the functions of the Commission, it may sometimes be possible for a fresh industrial dispute to arise occasioning new decisions and orders which have the practical consequence of remedying such earlier errors. However, in the determination of an appeal from a particular decision or order under s 45 of the Act, it must be allowed that not every error, even a serious one, will be capable of correction either in this Court or by the Federal Court by the invocation of constitutional relief.

[81] The remedies of judicial review invoked in this case are only available to require the correction of a category of legal mistake that goes beyond an "error within jurisdiction" and amounts (relevantly) to a "jurisdictional error". Where a constitutional writ of Mandamus is invoked, it will rarely be the case that an officer or authority with the power to decide defiantly refuses to exercise powers or functions conferred by legislation whilst acknowledging their existence and applicability. Ordinarily, in modern circumstances, what is involved is a constructive failure on the part of the officer or authority concerned to exercise such functions and powers. Such constructive failure may be traced to a seriously mistaken view of the facts or an error of law concerning the scope of the decision-maker's functions or powers.

[82] Distinguishing cases where the officer or authority has simply made a factual or legal error in the course of reaching a decision from cases where that error is classified as a constructive failure to exercise jurisdiction is not at all easy. What is ordinarily involved in the latter is a misapprehension on the part of the decision-maker of the nature of the powers and functions which the decision-maker is called upon to exercise or of the essential conditions by reference to which that exercise must occur. The misapprehension must be such that, in truth, it can be said that a purported exercise is not a performance of the powers and functions entrusted to the decision-maker at all. It is a pretended or assumed discharge. But in the eye of the law, the powers and functions have never been lawfully performed.' (emphasis added) 127 Kirby J joined in the result in Coal and Allied for reasons which differed from the majority judgesbut that circumstance does not affect his identification, which I have extracted above, of the distinction between errors of jurisdiction and errors within jurisdiction. 128 The distinction between jurisdictional and non-jurisdictional error, and the consequent restriction upon the availability of mandamus, is very well established. It survives in Australia where the courts have not followed the approach taken in England in Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147 at 171 (see for example Re Heerey; Ex parte Heinrich (2001) 185 ALR 106 at [19] - [20]; Re Minister for Immigration and Multicultural Affairs; Ex parte Holland (2001) 185 ALR 504 at [22]). 129 It is a distinction which has a long history of application to the work of federal industrial authorities. In R v Gray; Ex parte Marsh (1985) 157 CLR 351 Gibbs CJ said (at 371) that '[t]here is a well recognised distinction between an error made by a tribunal in the course of deciding a matter, on the one hand, and an absence or excess of jurisdiction on the other'. 130 The principle also provides examples of applications for prerogative relief being refused at the order nisi stage. In Re Operative Plasterers Workers' Federation of Australia; Ex parte Brown (1992) 67 ALJR 179 Gaudron J said, in relation to one such challenge against the AIRC (at 180): 'It is not every error that will ground prerogative relief. So far as mandamus, which is sought in this case, is concerned, there must be an error amounting to a refusal to exercise jurisdiction. Such an error, it is well established, may be constituted by what is said to be a constructive failure to exercise jurisdiction, that is, a mistake of some kind, the effect of which is that the Commission has failed to do that which it is obliged to do, whether pursuant to constitutional requirement or pursuant to statute. There is, of course, a clear distinction between an error of that kind and an error within jurisdiction where the tribunal concerned simply fails to apply some principle or to discharge some legal obligation which does not, however, affect jurisdiction as such. An example of an error of the latter kind would be one in which the tribunal failed to have regard to matters which should be taken into account in the exercise of a discretion.' 131 Similarly, in Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 McHugh J dismissed an application for an extension of time in which to apply for an order nisi directed to the AIRC. His Honour observed (at [18]) that the High Court 'should not burden the Federal Court [on remitter] with cases when, as a result of a recent decision of this Court, it is clear that they do not enjoy any prospects of success'. His Honour was referring to the decision in Coal and Allied. His Honour said (at [23] - [24]); 'The Full Bench understood its role on appeal [23] The Full Bench's role in the applicant's s 45 appeal was to ascertain whether or not Jones C had made an error in dismissing the applicant's application under s 170CE. As Gleeson CJ, Gaudron and Hayne JJ noted in Coal and Allied, an appeal under s 45 "is properly described as an appeal by way of rehearing", and the powers under s 45(7) "are exercisable only if there is error on the part of the primary decision-maker". This is so "regardless of the different decisions that may be the subject of an appeal under s 45". [24] In my view, there can be no doubt that the Full Bench understood that its function was to ascertain whether or not Jones C had made a relevant error. The Full Bench considered the applicant's grounds of appeal, and concluded that, in respect of each of them, Jones C did not relevantly err. If the Full Bench was wrong to reach this conclusion, then that was an error within jurisdiction.' (His Honour's observations were footnoted in a number of places with references to Coal and Allied at [17] and, at the end of the quote above, at [32]). 132 I can see no reason to conclude, in the present case, that the challenges made by Mr Fox to the conclusions reached by the Full Bench point to any suggested error of a jurisdictional kind. I am not able, speaking for myself, to identify any error at all but if the Full Bench had made any of the errors alleged it would be an error within jurisdiction. It is quite apparent that the Full Bench remained focussed upon the issue which arose for determination - namely, whether there was a valid reason for the termination of Mr Fox's employment. The assessment of that, and related, matters was a matter for the AIRC and not for this Court. I see no substance in the proposition that the Full Bench misunderstood the nature of its role under s 45 or failed to apply itself, as required by the statutory provisions and authorities which bound it, to the questions for its decision or to its task. 133 Although it is clear from the Full Bench judgment that it did not regard it as necessary to examine the question of the effect of any delay upon the assessment of Mr Fox's evidence, the reason why it was not necessary for it to embark upon that exercise was because, on the view which it formed, it could have no material effect upon the evaluation of the question whether a valid reason existed for the termination of Mr Fox's employment. Its conclusions in that regard do not reveal any jurisdictional error. 134 In any event, the decision which the Full Bench made was to refuse leave to appeal. The Full Bench followed the judgment of a Full Court of this Court in Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 ('Wan'). In Wan, which also challenged a refusal of leave to appeal and involved an examination of the jurisdiction conferred on the AIRC at first instance by s 170CE of the Act and on a Full Bench by ss 45 and 170JF(2) of the Act, the Court said that relief against a refusal of leave to appeal was 'dependent upon demonstrating an entitlement to it [the relief] in connection with the refusal of leave to appeal'. The Court also said (at [30]): 'It will rarely, if ever, be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error.' 135 There is no right to leave to appeal. A case must be made for the favourable exercise of a discretion. Evaluation of the arguability of a suggested case of appealable error involves a value judgment. No error has been shown in the Full Bench's understanding of its task in that regard, or of the matters to be taken into account with respect to that question. Jurisdictional error is not demonstrated by the formation of an opinion that leave to appeal might, not must, have been granted.

CONCLUSION 136 The Full Bench's treatment of the issues before it, and its decision to refuse leave to appeal were all within its jurisdiction. There was neither excess of jurisdiction nor failure to exercise jurisdiction. No error has been shown in its decision. Moreover, if any error had been made by the Full Bench in its assessment of whether it had been shown that Commissioner Roberts erred in finding the existence of a valid reason for termination, or whether an appeal, if leave to appeal was granted, had prospects of success or not, then, in the circumstances of the present case, any such error would be an error within jurisdiction and not one which provided a foundation for the grant of any constitutional writ. 137 I would reject the application.

I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Counsel for the Applicant: Ms L McCallum SC & Ms L Clegg

Counsel for the First and Second Respondents: Mr J Fernon SC & Ms E Raper

Solicitor for the First and Second Respondents: Baker and McKenzie

Date of Hearing: 13-14 August 2007

Date of Judgment: 27 September 2007