Fruend and Ors and Peter Stoitse Transport Pty Ltd and Anor [2002] NSWIRComm 54

Practice and procedure - Unfair dismissal - Appeal - Application for leave to appeal and appeal from decision of Commissioner summarily dismissing applications - Nature of applications before Commissioner - Application under rule 146 to dismiss proceedings for want of prosecution - How proceedings terminated - Denial of natural justice in proceedings being terminated - Important issues of practice and procedure in respect of unfair dismissal applications raised by appeal - Leave to appeal granted - Appeal upheld - Matter remitted to a Member of the Commission subject to directions of the Full Bench pursuant to s 192(1)(c). LEGISLATION CITED : Industrial Relations Act 1996 s 84 s 87 s 130 s 162 s 188 s 192 Industrial Relations Commission Rules r 146 CASES CITED : Australasian Meat Industry Employees' Union, New South Wales Branch: Notification of a Dispute with Peter Stoitse Transport Pty Ltd and Anor re Industrial Action [2001] NSWIRComm 1064 House v The King (1936) 55 CLR 499 HEARING DATES: 03/19/2002 EXTEMPORE JUDGMENT DATE : 03/19/2002

APPELLANTS: Mr S Gurney Australasian Meat Industry Employees' Union, New South Wales Branch

LEGAL REPRESENTATIVES: RESPONDENTS: Mr A B Gotting of counsel Haywards Solicitors (Mr Phil Hayward)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President REDMAN C

KEVIN FRUEND AND PETER STOITSE TRANSPORT PTY LTD AND ANOTHER Application for leave to appeal and appeal against a decision of Commissioner Tabbaa given on 8 October 2001 in Matter No IRC 145 of 2001

RODNEY WAIT AND PETER STOITSE TRANSPORT PTY LTD AND ANOTHER Application for leave to appeal and appeal against a decision of Commissioner Tabbaa given on 8 October 2001 in Matter No IRC 147 of 2001

PETER BLACK AND PETER STOITSE TRANSPORT PTY LTD AND ANOTHER Application for leave to appeal and appeal against a decision of Commissioner Tabbaa given on 8 October 2001 in Matter No IRC 146 of 2001

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION OF NEW SOUTH WALES AND PETER STOITSE TRANSPORT PTY LTD AND ANOTHER Application for leave to appeal and appeal against a decision of Commissioner Tabbaa given on 8 October 2001 in Matter No IRC 6347 of 2000 DECISION OF THE COMMISSION (Extempore) [2002] NSWIRComm 54

1 These matters concern applications for leave to appeal and, if leave be granted, appeals from a decision of Tabbaa C given on 8 October 2001 dismissing applications brought by Kevin Fruend, Rodney Wait and Peter Black (the appellants) pursuant to s 84 of the Industrial Relations Act 1996 (the Act) and, in so doing, terminating industrial dispute proceedings which had been brought by the Australasian Meat Industry Employees' Union, New South Wales Branch (the union), pursuant to s 130 of the Act: see Australasian Meat Industry Employees' Union, New South Wales Branch: Notification of a Dispute with Peter Stoitse Transport Pty Ltd and Anor re Industrial Action [2001] NSWIRComm 1064. 2 The decision at first instance did not arise from a consideration of the merits of the respective applications or proceedings. Rather, the decision arose from the recurring default of the union in acting for the appellants in that the union failed to comply with various directions given by the commissioner in respect of the proceedings. 3 Whilst there was some debate in the appeal proceedings today as to the nature of the application which gave rise to the decision at first instance, we consider that an examination of the record at first instance makes plain that the commissioner's decision responded to, and dealt with, an application put by Peter Stoitse Transport Pty Limited (the first respondent) and Workforce On Tap (the second respondent) to dismiss the proceedings for want of prosecution pursuant to r 146 of the Industrial Relations Commission Rules. That conclusion follows, in our consideration, from correspondence forwarded to the commissioner by the first respondent on 26 June 2001. The correspondence did not refer directly to r 146, but the language employed in it by the agent for the first respondent, in seeking the dismissal of the proceedings for want of prosecution, leaves no doubt that what had been put before Tabbaa C was an application under r 146. 4 The application was joined in by the second respondent in correspondence from its solicitors of 20 July 2001 (it is to be noted that the second respondent, although served, did not appear on the appeal). The nature of the application is further confirmed by the oral submissions made by the agent for the first respondent on 18 July 2001 and the consequent written submissions filed on behalf of that party which specifically sought that the Commission should exercise its discretion under r 146 to dismiss the applications made pursuant to s 84 of the Act. For completeness, we note that the operative section of the commissioner's decision under the heading "Applications for Dismissal of the Claims" demonstrates that the commissioner considered she was deliberating upon applications made pursuant to r 146. 5 It is tolerably clear from the commissioner's decision of 8 October 2001 that she dismissed the application made under r 146. That matter is, however, put beyond doubt by the transcript of the proceedings on the same day in which the commissioner's observations, upon handing down the decision, were recorded. The commissioner there stated: I have considered section 146 of the Act and I do not believe that is applicable in the present circumstances, because the statements have been filed, even though they have been filed late.

(The parties to proceedings agreed that the reference to "section 146 of the Act" in this extract from the transcript of the proceedings should be read as a reference to "rule 146 of the Rules".) 6 Notwithstanding the conclusion as to the application under r 146, the commissioner proceeded to dismiss the proceedings. The commissioner's decision in that respect was as follows: Whilst I accept the details provided by Mr. Gurney as to his workload, it is a reason that would be applicable to most, if not all, advocates and if an exception were made for one, then it would follow that it would be expected to be made for all. For that reason and for the reasons set out above, I decline to accept the statements which were filed out-of-time. It would follow then that the union has not made out a case for the respondents to answer and therefore the claims are hereby dismissed. 7 Having proceeded on this basis, the commissioner's decision leaves unclear the nature of the power then being exercised by the Commission. Conciliation proceedings had earlier concluded and hence it may be that the commissioner was exercising a power pursuant to s 87(1) of the Act to dismiss the application. That provision is in the following terms: When, in the opinion of the Commission, all reasonable attempts to settle the applicant's claim by conciliation have been made but have been unsuccessful, the Commission is to determine the claim by making an order under section 89, dismissing the application or making any other order it is authorised to make under this Act. 8 It may be that, as contended by Mr Gotting of counsel who appeared for the first respondent, the commissioner was exercising a power pursuant to s 162 of the Act (either by virtue of the third limb of power referred to in s 87 or by the Commission establishing its own procedures pursuant to s 162(1)). 9 Whatever might be the precise basis of the power exercised, it is clear that no party to the proceedings was given an opportunity to be heard upon this alternative basis for the commissioner determining the matter, notwithstanding that quite different issues might have arisen for consideration in that event. In the result, we consider that the appellants were denied natural justice (or, as it is now often described, procedural fairness) and the proceedings thereby miscarried. 10 There is, however, a more significant error in the decision at first instance. The commissioner ultimately declined to accept the statements filed by the union on behalf of the appellants outside the time period specified in the commissioner's directions. She then determined to dismiss the proceedings not upon that basis per se but upon the basis that there was then no evidence before the Commission which could establish the application at first instance (or to employ the language of the commissioner, there was no case to answer by the respondents). The approach was erroneous for a number of reasons: 1. No party to the proceedings was advised that the commissioner intended to make a determination as to whether or not the statements filed late would be received or not received, or that such a determination might lead to the summary dismissal of the proceedings. 2. The directions which had been made by the commissioner did require the filing of statements of evidence by a given time but in no way limited the evidence which might be called in the proceedings to evidence adduced in those statements (whether filed in time or not). There was no proper basis then to conclude that the exclusion of those statements would necessarily render the matter in a state where the respondents had no case to answer. 3. Even if the Commission was exercising its general powers in relation to the receipt of the statements of evidence, it is not entirely clear how the commissioner reconciled her decision in this respect with the finding that she accepted the explanation given by the union advocate for the delay. If the reason be simply that the acceptance of such explanations might create a multitude of such excuses causing lateness in proceedings generally, it is not open to exercise the Commission's discretion on that basis. The exercise of the discretion would rather require a consideration of the particular circumstances of each case as they may arise. 11 We consider that the errors so described constitute errors of law and a miscarriage of the exercise of the commissioner's discretion in a manner that would normally attract appellate intervention under the principles in House v The King (1936) 55 CLR 499. However, that is not the end of the matter. The question of leave to appeal remains an active ingredient in the proceedings. The mere demonstration of error at first instance may not necessarily attract the grant of leave pursuant to s 188 of the Act. In the present case, the Commission is required to consider an application for leave to appeal where the applicant for leave to appeal was significantly in default in its approach to the proceedings at first instance and where, on a proper exercise of the Commission's power and discretion, proceedings may have resulted in a dismissal at first instance, (although we do not have all of the relevant material before us as would ultimately allow a determination of that kind by the Full Bench). 12 We have, however, decided to grant leave to appeal for the following reasons: 1. The matter raises important questions of practice and procedure in unfair dismissal matters. It is important that the Full Bench make the observations above as a means of giving general guidance in relation to such matters. 2. The significant prejudice which may arise for the first respondent in these proceedings is to some extent offset by the concession made by Mr Gurney , who appeared for the appellants, that the appellant, Mr Fruend, did not intend to any longer seek reinstatement and that the applications brought by the other appellants would be unlikely either to proceed, or to be ultimately determined, as applications resulting in reinstatement because of the variety of circumstances outlined by Mr Gurney . We have proceeded upon the expectation that orders for reinstatement (as opposed to other forms of relief) are not contemplated if the s 84 applications proceed. 3. The finding by the commissioner that she accepted the explanations given by Mr Gurney as to the reasons for lateness. 13 Turning then to the appeal proper, we consider that the appeal should be upheld because of the errors earlier described. Having regard to the nature of this appeal, we do not think it appropriate for us to exercise our own discretion in relation to the applications at first instance. It is appropriate that the matter be remitted for hearing in the ordinary course, subject to the imposition of appropriate directions pursuant to s 192(1)(c) of the Act. 14 We accordingly order: 1. Leave to appeal is granted.

3. The applications by the appellants pursuant to s 84 of the Act are referred to a member of the Commission, as allocated by the President, to be dealt with in accordance with the provisions of the Industrial Relations Act 1996, subject to the condition that the appellants, after having been heard as to any directions proposed to be made, must strictly comply with such directions. The failure in compliance will result in the proceedings being dismissed forthwith. 15 These proceedings are concluded. _______________________

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