(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.