Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited - [2003] NSWIRComm 211 - NSWIRComm 2001 case summary — Zoe

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Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited

[2003] NSWIRComm 211

Industrial Relations Commission (NSW)|2001-12-18|Before: Walton J, Harrison DP, Sams DP, Wright J, Kavanagh J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2001-12-18

Before

Walton J, Harrison DP, Sams DP, Wright J, Kavanagh J

Source

Original judgment source is linked above.

Judgment (195 paragraphs)

[1]

CITATION : Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 APPELLANT: Joy Maree Humphries PARTIES : RESPONDENT: Cootamundra Ex-Services and Citizens Memorial Club Limited FILE NUMBER: IRC 5447 of 2002 CORAM: Walton J Vice-President; Harrison DP; O'Neill C CATCHWORDS : Appeal - Unfair dismissal - Alleged misconduct - Criminal prosecution - Criminal acquittal - Appeal principles - Credit findings - Appellate review - Circumstantial evidence - Documentary evidence - Error in findings of fact - Error of law - Procedural fairness - Denial of access to documents relevant to allegations - Relevance of procedures in Instrument - Dismissal harsh unreasonable or unjust - Finding of Magistrate - Inadequate basis to find guilty of misconduct - Leave to appeal granted - Appeal upheld - Reinstatement ordered - Partial Back Pay. LEGISLATION CITED : Industrial Relations Act 1996 Abboud v NSW Department of Education (1999) 92 IR 32 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Australian Workers Union, NSW Branch v Colgate-Palmolive Pty Ltd (1988) 27 IR 420 Big W Discount Stores v Donato (1994) 58 IR 239 Box Valley Pty Ltd v Price (2000) 97 IR 484 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Crown Employees (Teachers, Locality Allowance, &c) Award [1981] AR (NSW) 1017 Club Employees (State) Award 319 IG 589 Fox v Percy (2003) 197 ALR 201 Gow v Cronulla Sutherland Leagues Club Ltd (2002) 119 IR 122 Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 CASES CITED : House v The King (1936) 55 CLR 499 Humphries v Cootamundra Ex Services and Citizen Memorial Club Ltd (unreported, Walton J, Vice-President, Sams DP and Tabbaa C, 18 December 2001, Matter No. IRC1852 of 2000) Humphries v Cootmaundra Ex-Services and Citizens Memorial Club Limited [2002] NSWIRComm 225 King v The State Bank (unreported, Wright J, President, Walton J, Vice-President, & Kavanagh J, 23 December 2002) Knowles v The Anglican Church Property Trust Diocese of Bathurst (1999) 89 IR 47 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Plumbers' and Gasfitters' Union v BHP Co Ltd 143 IG 252, (1961) OILR 271 Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at 59) Price v Box Valley Pty Ltd (1999) 90 IR 480 Solicitors State Award (1997) 72 IR 225 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) 160 ALR 588 W D & H O Wills (Australia) Ltd v Jamieson 91957) AR 547 Wang & Ors v Crestell Industries Pty Ltd & Anor (1996) 73 IR 454 Wilson v Department of Education and Training [2000] NSWIRComm 120 HEARING DATES: 03/10/2003 DATE OF JUDGMENT: 07/29/2003

[162]

98 However, as the relevant authorities demonstrate, credit findings are not immune from appellate review. It is timely to restate what may be regarded as the settled approach regarding appellate review of findings of fact and credit. In the joint decision in Abboud v NSW Department of Education (1999) 92 IR 32, Wright J and Walton J stated (at 43): In the case of an appeal from a judge in the strict sense, the appellate court will substitute its own judgments only if the trial judge has fallen into error of law or has made a finding of fact which is clearly wrong or not reasonably open on the evidence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 688. Otherwise, the appellate court should not intervene. As Priestley JA recently observed in Martin v Byrnes (unreported, Court of Appeal, Priestley, Stein JJA and Sheppard AJA, 25 May 1999): The cases running through the hundred years from Coghlan v Cumberland [1898] 1 Ch 704 to Earthline Constructions [(1999) 160 ALR 588] all show that courts such as this Court are duty bound to reverse conclusions based on trial judges' views of fact when those views of fact are plainly wrong but are equally duty bound not to reverse such decisions of a trial judge merely because the intermediate appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made. This has been the position generally adopted by this Court and its predecessors: see Hussmann Australia Pty Ltd v Walker (1993) 48 IR 396 at 406 and Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 at 154. … Some additional considerations may arise where the findings of fact are based upon perceptions formed by a trial judge as to the credibility of a particular witness or witnesses. It has frequently been observed that a trial judge possesses a considerable advantage over an appeal court by virtue of having seen and heard the witness give evidence and it would be wrong to overlook "the subtle influence of demeanour" upon the resolution of conflicts between evidence: see, for example, Jones v Hyde (1989) 85 ALR 23 at 27-28, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. In Devries , it was held (at 479) "that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact": see also Outboard World Pty Ltd (t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 179; Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 at 154.

[170]

101 We have also had regard to the judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 197 ALR 201 (at [25]-[29]). We note, in particular, their Honours' observations (at [28]) that: [T]he mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings [43]. That this is so is demonstrated in several recent decisions of this Court [44]. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" [45] or "contrary to compelling inferences" in the case [46]. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process. 102 However, the additional bases for the adverse credibility findings of the Deputy President in this case went to the plausibility of the appellant's denials and counter-allegations, and not more directly to the finding of misconduct.

[185]

118 This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious. 119 We have already expressed concern with regard to the circuitous and apparently self-fulfilling process that seems to have led Ms Humphries to making statements, which were subsequently adversely interpreted by the Deputy President. As was stated in Gow v Cronulla Sutherland Leagues Club Ltd (2002) 119 IR 122 (at [319]), however, procedural defects will generally be more serious in circumstances in which the unfairness derives also from a breach of a legal obligation. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385, (at 4, 5 and 8) the Full Bench of the Commission stated that: [W]here procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust. 120 We are also mindful of the comments of a Full Bench of this Commission in Rich River Golf Club Ltd v Power [1995] NSWIRComm 75 that: This denial of procedural fairness may not have been sufficient for us to support the finding by the Commissioner that Ms Power should be re-instated except that the provision was an actual award provision binding the parties in its terms.