Issa v Department of Customer Service [2025] NSWIRComm 12

1. The Commissioner dismissed the Notice of Motion. The Commissioner granted leave to the respondent to rely on, in the sense of file as evidence in the proceedings, the statements of the witnesses to which I have already referred, subject to any rulings on objections as to specific parts of those witness statements.
2. At the hearing before me today, the applicant also seeks a stay of the usual directions made by Commissioner O'Sullivan on 11 April 2025, which included amending the hearing date of the substantive matter to commence on 28 May 2025 and the timetabling for the filing and service of evidence in reply.

1. The applicant did not file any evidence in the proceedings today. He did, however, provide a chronology and some written submissions to which I have had regard.
2. The respondent relies on the affidavit of Tim McDonald, principal solicitor, sworn today, 14 May 2025, which sets out the procedural history of the matter.

1. The applicant sought a stay of the Commissioner's decision because:

(1) The outcome of the appeal would affect the substantive hearing of the matter in that it addresses the evidence on which the respondent is permitted to rely at the substantive hearing.

(2) As a result of the above, the absence of a stay would render the appeal of the Commission's decision nugatory, as the substantive hearing would proceed on the basis that the respondent has the benefit of evidence the admission of which the applicant seeks to challenge. The applicant submitted that the appeal raises important matters of jurisprudence for the conduct of the Commission's proceedings generally, and not just matters that are of interest to the parties. In part, this was because the review of the decision of a Registrar by the Commission is a rare occurrence. The applicant submitted that the review conducted by the Commissioner did not occur by reference to established principles.

(3) The applicant submitted that if the substantive hearing were not stayed, the applicant would be required to prepare for two hearings simultaneously.

(4) The applicant submitted that the respondent had not provided any acceptable reason for failing to comply with the orders of the Commission.

1. The applicant also submitted that, as no formal order has been entered in relation to each of the applicant's Notice of Motion or the decision to allow the respondent to rely on the additional seven witnesses, those orders were not enforceable pursuant to s 133 of the Civil Procedure Act 2005 (NSW). In fact, an order was entered on 11 April 2025 dismissing the applicant's Notice of Motion. There does not appear to be a formal order entered granting leave to the respondent to rely on the seven statements set out above as part of the case management for the substantive matter.
2. The respondent submitted that the stay application ought to be confined to the subject of the Commissioner's decision; that is, the dismissal of the Notice of Motion and the grant of leave for the respondent to rely on additional evidence to which I have already referred. The respondent noted that it was the Commissioner's decision which was the subject of the appeal, not the case management orders arising from that decision and that nothing in the application for leave to appeal and appeal challenged the case management orders made by Commissioner O'Sullivan following that decision.
3. The respondent submitted that the assessment of the stay application involved a consideration of matters in the interests of justice and that that in turn involves the consideration of:

(1) whether the applicant has an arguable case on appeal; and

(2) the balance of convenience.

1. As to whether the applicant has an arguable case on appeal, the respondent noted that it is the policy of appellate bodies not to interfere in matters of practice and procedure, which strongly militates against the granting of leave to appeal. The respondent noted that the consequence of granting the applicant leave to appeal would be a fragmentation of the substantive hearing in circumstances where the overriding purpose of the Civil Procedure Act 2005 (NSW) as set out in s 56 is the resolution of the real issues in the proceedings in a manner that is just, quick and cheap.
2. The respondent also referred me to s 163(1)(c) of the Industrial Relations Act 1996 (NSW) (IR Act) which requires the Commission to consider equity, good conscience and the substantial merits of the case. The respondent submitted that the matters determined by Commissioner O'Sullivan involved an evaluative judgment of how best to manage the substantive proceeding. The respondent submitted that matters of case management are not issues of principle and that Commissioner O'Sullivan took into account matters of fairness and practicality when making the orders on 11 April 2025.
3. As to the balance of convenience, the respondent pointed to the lack of prejudice to the applicant in circumstances where the applicant has had the disputed evidence well in advance of the 28 May 2025 hearing date and that any decision that he made not to consider that evidence before 11 April 2025 needs to be viewed in circumstances where there was always the possibility that Commissioner O'Sullivan would grant leave for the respondent to rely upon it.
4. The respondent also pointed to the practical effect of the stay. Firstly, as to the orders the subject of the Notice of Motion, they would stand, as the stay of the decision to dismiss the Notice of Motion would leave the orders of the Acting Senior Deputy Registrar in place. Secondly, as to the leave granted to rely upon the seven statements referred to above, there is nothing preventing a fresh application from the respondent at the outset of the hearing to rely upon that evidence. Accordingly, the grant of a stay of the Commissioner's decision in relation to those two matters would have no practical effect on the conduct of a hearing which occurs on 28 May 2025.
5. The respondent noted that if a stay is granted and the hearing proceeds in the absence of the seven additional statements which are part of the respondent's evidence, the respondent will almost certainly appeal that decision. Further, the Commission is put in the position of being required to deal with the issue before it without the evidence which is relevant to the question that it has to determine. That position is not in the interests of justice.
6. The respondent further noted that if the stay is granted and the substantive hearing proceeds but is reserved pending the appeal decision, the respondent would need to apply for leave to re-open its case to call the additional evidence upon which it relies in the event that the appeal is not successful.
7. As to the decision to stay the substantive hearing dates pending the appeal, the respondent noted that that would result in a substantial delay in the substantive proceedings in circumstances where the substantive proceedings have already been delayed once. Further, that application has already been made before the Acting Senior Deputy Registrar and was rejected. Instead, there was a variation made to the timetable for the applicant to file his reply evidence on 19 May 2025.

1. Section 190 of the IR Act provides me with the power to stay the decision that is the subject of the appeal. The principles applicable to an application pursuant to s 190 of the IR Act were set out by Staff J in Davies v Kyogle Council [2008] NSWIRComm 68. After citing the principles set out by Wright J in Re Transport Industry - Waste Collection and Recycling (State) Award (2000) 102 IR 192; [2000] NSWIRComm 236 at [18], his Honour made the following observations:

(1) It was for the applicant to demonstrate why a stay should be granted in the particular circumstances which arise for consideration: at [12].

(2) The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears: at [13].

(3) In exercising its discretion, the Court must weigh considerations such as the balance of convenience: at [14].

(4) The prospects of success of an appeal is an important consideration. In that regard:

(a) Section 188(1) of the IR Act provides that an appeal from a Member of the Commission may only be made with leave from the Full Bench of the Commission. Leave to appeal will not, ordinarily, be granted unless the appellant demonstrates that the appeal proceedings raised substantial issues of principle or have wider implications for the jurisprudence of the Commission, including whether the decision has widespread practical application: Knowles v Anglican Property Trust (No 2) [1999] NSWIRComm 576; (1999) 95 IR 380 at 382.

(b) The Commission is entitled to take into account the decision from which the appeal is sought to be prosecuted and whether it is "attended with sufficient doubt to warrant it being considered" on appeal or whether substantial injustice would result if leave were refused: WorkCover Authority of New South Wales (Inspector Moore) v Blacktown City Council (2003) 124 IR 59 (Walton J Vice-President, Boland J at [14] and Haylen J at [66]).

(c) Leave will rarely be given to appeal against an interlocutory procedural decision: Caltex Petroleum Pty Limited and ors v Harmer (1999) 92 IR 264; Direct Home Loan Corporation Pty Ltd v Wiltshire (No 2) (2004) 137 IR 166 at [10]-[11]; Express Data (A Division of Dimension Data Australia Pty Ltd) and NUW, Re [2005] NSWIRComm 140; Metrocall Inc v Electronic Tracking Systems Pty Limited (No 2) [2000] NSWIRComm 260; (2000) 102 IR 309 at [21]; AFMEPKIU, New South Wales Branch v David (2006) 154 IR 297.

1. Finally, I note that the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 176-177 observed that an appellate court should be loathe to interfere in a matter of practice and procedure.
2. I note that the applicant's submissions largely assumed that a stay of the Commissioner's decision would result in a stay of the substantive hearing. That is, his submissions largely did not address the practical effect of staying the decision in relation to the Notice of Motion and the leave granted to the respondent to rely upon additional evidence in the event that the substantive proceeding proceeds as currently listed.
3. A stay of the substantive proceeding will not assist the just, quick and cheap resolution of what is actually in issue, which is the application that is the subject of that proceeding. It is in the interests of neither party nor the Commission that there be any further delay in the determination of that issue, it having already been deferred on one occasion. Further, the fragmentation of the issues in dispute between the parties so that some are addressed at the interlocutory stage while others are addressed in any appeal following a determination of the matter will only add to the time and cost of litigation before the Commission and should not be encouraged.
4. Further, my remarks that follow which concern the prospects of success of the appeal apply equally to a decision as to whether to stay the substantive proceedings.
5. Given those matters, and the fact that this application has already been agitated before the Acting Senior Deputy Registrar, I decline to stay the substantive hearing on 28 May 2025.

1. As to the decision of the Commissioner to dismiss the applicant's Notice of Motion, I accept that there is no utility to the making of such an order. To stay the decision of the Commissioner is to stay a decision to refuse an application to have those orders set aside. In the event that I were to stay the decision refusing that application, orders 3 and 5 would continue to operate in respect of the substantive hearing on 28 to 30 May 2025.
2. The prospect of success of any appeal in respect of the Commissioner's decision is very low in circumstances where the evidence upon which the respondent sought to rely was filed less than an hour after the relevant deadline and well in advance of the date that the matter is now listed to be heard. To the extent that there is any prejudice to the applicant in meeting the case against him, which is difficult to maintain in all of the circumstances, it has been cured by the rescheduling of the hearing from 17 March 2025 to 28 May 2025.
3. Further, my below findings concerning the interlocutory and procedural nature of the decision to grant leave to the respondent to rely on the evidence of the seven additional witnesses referred to above apply equally to the Commissioner's decision in this regard in relation to dismissing the Notice of Motion.

1. In relation to the decision of the Commissioner to grant leave to the respondent to file the additional statements to which I have already referred, it is not necessary that special or exceptional circumstances be made out for a stay to be granted. It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of the discretion in their favour.
2. Considering first the prospects of success of the appeal. This is an appeal from an interlocutory decision. There is no appeal as of right. In order to appeal a decision, leave needs to be granted. In order for leave to be granted, there needs to be a view formed by a Full Bench that the matter is of such public importance that in the public's interests leave should be granted. Leave will rarely be given to appeal against an interlocutory decision: Davies v Kyogle Council [2008] NSWIRComm 68 per Staff J at [15].
3. I accept the respondent's submission that the decision of the Commissioner was an evaluative one, considering the most efficient way to conduct the substantive proceedings. The significance of the delay is minor. It was able to be remedied by the relisting of the hearing from March to May 2025, eliminating any real prejudice to the applicant. The evidence on which the respondent seeks to rely was important evidence from the decision-makers concerning the decision in issue so that the dictates of justice were not met by the Commission being required to proceed in its absence.
4. As to the balance of convenience in this matter, that weighs against the granting of a stay of the decision to permit the respondent to rely on the additional evidence sought.
5. In the event that the applicant is successful in the substantive hearing, the relevance of the appeal will fall away. If the applicant is not successful, the admission of the evidence to which he objects is a matter that can be raised in any appeal of that decision, including for the reasons relied upon by the applicant in the appeal presently before the Commission.
6. Further, as submitted by the respondent, in the event that the substantive hearing proceeds on 28 May 2025, there is no impediment to the respondent again seeking leave to rely on the statements of the seven witnesses referred to above. Accordingly, there is no practical benefit to the stay being sought by the applicant unless it includes a stay of the hearing dates of the substantive proceeding.
7. I note that there is no prejudice to the applicant in that he has had the respondent's evidence since 10 March 2025, some two and a half months, before the hearing of the matter which is now scheduled from 28 to 30 May 2025.
8. I also note that in the event that the respondent's evidence were to be excluded on 28 May 2025, the prejudice to the respondent in barring that evidence is that it will have difficulty in meeting the applicant's claim. The dictates of justice are not met by the Commission proceeding in the absence of evidence that is plainly pertinent to the question that it has to determine. Further, to proceed on that basis would give rise to an inevitable appeal on the part of the respondent.

1. Accordingly, I dismiss the application for a stay of Commissioner O'Sullivan's decision of 11 April 2025, including the case management directions that were made on that date.