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.