King v State Bank of New South Wales - [2002] NSWIRComm 353 - NSWIRComm 2002 case summary — Zoe

NSWNSWIRComm

King v State Bank of New South Wales

[2002] NSWIRComm 353

Industrial Relations Commission (NSW)|2002-07-01|Before: Wright J, Walton J, Kavanagh J, Hill J

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Court

Industrial Relations Commission (NSW)

Decision date

2002-07-01

Before

Wright J, Walton J, Kavanagh J, Hill J

Catchwords

08/22/2001 DATE OF JUDGMENT: 12/23/2002

Source

Original judgment source is linked above.

Catchwords

08/22/2001 DATE OF JUDGMENT: 12/23/2002

Judgment (151 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 APPELLANT/CROSS REPONDENT: Robert Gordon King PARTIES : RESPONDENT/CROSS-APPELLANT: State Bank of New South Wales FILE NUMBER: IRC 38 and IRC 584 of 2001 CORAM: Wright J President; Walton J Vice-President; Kavanagh J Unfair contract - Application for leave to appeal - Appeal and cross appeal - Appellant made redundant shortly after having commenced employment - Section of respondent in which appellant had been employed under review prior to his employment - Misrepresentations alleged during pre-employment negotiations - Unfair conduct - Contract varied to afford notice in lieu and redundancy - Monies for notice and redundancy aggregated into one order - No error in aggregating amounts - Quantum of award erroneous in circumstances of case - Monetary orders at first instance provided amount for "distress" associated with financial difficulties suffered upon termination - Jurisdiction under s 106(5) - Monetary orders for distress within jurisdiction - Nature of monetary orders under s 106(5) considered - Leave to appeal and leave to cross appeal granted - Appeal and cross appeals allowed in part. CATCHWORDS : Appeal - Nature of appeal - Appeal stricto sensu or by way of rehearing having regard to s 191(2) of Industrial Relations Act 1996 - Decision of High Court in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 considered - Nature of appeal under Industrial Relations Act considered and determined. Industrial Arbitration Act 1940 s 14 s 24 Industrial Relations Act 1991 s 297 s 382 LEGISLATION CITED : Industrial Relation Act 1996 s 9 s 84 s 105 s 106 s 188 s 191 s 192 Interpretation Act 1987 s 34 Trade Practices Act 1974 Workplace Relations Act 1996 (Cth) s 45 Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Abboud v State of New South Wales (Department of School Eduction) (No.2) (2000) 99 IR 299 Abdullah Al-Shennag v Bankstown City Council Civic Services Group [2002] NSWIRComm 150 Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Addis v Gramophone Co Ltd (1909) AC 488 Aldersea v Public Transport Corporation (2001) 3 VR 499 Baltic Shipping Company v Dillon (1983) 176 CLR 344 Bates and Gundagai District Services Club [2000] NSWIRComm 22 Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648, (1999) 93 IR 1 Big W Discount Stores v Donato (1995) 58 IR 239 Box Valley Pty Ltd v Price (2000) 97 IR 484 Bultitude v Grice Constructions Pty Limited [2002] NSWIRComm 20 Burazin v Blacktown City Guardian Pty Limited (1996) 142 ALR 144 CCH Australia Limited v Bowen (1998) 79 IR 206 Clunne v Nambucca Shire Council (1995) 63 IR 304 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 Coldham, Ex Parte Brideson, Re (No 2) (1990) 170 CLR 267 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Dun & Bradstreet (Australia) Pty Ltd v Robbie (1999) 91 IR 150 Garuda Indonesian Airways v Bacher Spielvogel Bates Ltd (unreported, Court of Appeal, 4 December 1997) Green v Brown (2002) 116 IR 21 Hilton Nursing Home Pty Ltd v Maciver (2000) 102 IR 335 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151, (1999) 88 IR 282 Incitec Limited v Industrial Court of New South Wales (1992) 45 IR 155 King v State Bank of New South Wales [2000] NSWIRComm 229 Knowles v Anglican Church Property Trust (No.2) (1999) 95 IR 380 Lavings v Barclay Mowlem Construction (NSW) Pty Limited (unreported, Hill J, 15 December 1994) CASES CITED : LEP International Pty Limited v Caine (2000) 97 IR 35 Llandilo Staircases Pty Ltd v WorkCover Authority of New South Wales (Inspector Parsons) (2001) 104 IR 204 McNaught v Micador Australia Pty Limited (1996) 83 IR 111 Mitchforce v Starkey [2002] NSWIRComm 85 Newton v Goodman Fielder Mills Ltd (1998) 81 IR 227 Nguyen v Swan Services Pty Limited [2002] NSWIRComm 322 Origin Energy Limited v Smith (2001) 111 IR 476 Police Service of New South Wales v Batton (2000) 98 IR 154 Port Macquarie Golf Club Limited v Stead (1996) 64 IR 53 Pullen v R & C Products Pty Ltd (1994) 60 IR 183 Reich v Client Server Professionals (2000) 49 NSWLR 551, (2000) 99 IR 69 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 Ross v GN Comtext (Australia) Pty Limited (2000) 107 IR 1 Rothmans Distribution Services Limited v Full Court of the Industrial Court of New South Wales (1994) 53 IR 157 Solicitors (State) Award (No 3), Re (1997) 72 IR 225 Starkey v Health Care Corporation [1999] NSWIRComm 352 Stone Microsystems (Aust) Pty Limited v Kwong (1997) 42 NSWLR 160 Stonham v The Speaker of the Legislative Assembly of New South Wales (2000) 97 IR 325 Sykes v Alan East Pty Ltd (Formerly National Meat Supplies Pty Ltd) [2000] NSWIRComm 1130 Thomas Nationwide Transport Ltd (T/as "Altrans Bulk") v Thomas (1990) 34 IR 378 Vincent v Merrill Lynch (Australia) Pty Limited [2000] NSWIRComm 254 Walker v Hussmann Australia Pty Ltd (1991) 24 NSWLR 451 Walker v Industrial Court of New South Wales (1994) 53 IR 121 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Ward v Mobile Innovations Limited [2002] NSWIRComm 287 Westfield Holdings Ltd v Adams (2001) 114 IR 241 Westfield Limited v Helprin (1998) 82 IR 411 Wilson and Department of Education and Training (2000) 100 IR 1 WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 HEARING DATES: 08/21/2001; 08/22/2001 DATE OF JUDGMENT: 12/23/2002

[35]

18 Having addressed the appellant's case in that way, his Honour turned to address the alleged unfairness (at [86]). His Honour observed (at [87]) that in order to assess any unfairness surrounding the termination of the appellants employment "it [was] necessary to determine what is reasonable notice" so as to ascertain "what notice should have been given and/or what moneys should have been paid in lieu of notice on termination of employment". His Honour rejected the submissions of the respondent to the effect that it was necessary to determine and take into account the degree of security the appellant had in his previous employment, in order to assess the fairness of the contract of employment with the respondent, holding: [88] … Whether or not the applicant's position with Citibank was tenuous or secure, there can be no doubt on the evidence that the respondent through its representatives sought the employment of the applicant into the PFAS Group and that certain representations were made to him, the nature of which I have already set out. It is also clear on the evidence that the position of the PFAS and the merchant bank activities within the respondent's operations had been under review for some little time prior to the applicant's appointment although it is clear on the evidence that no definite decision was made to cease the operations in this area for some months after the applicant's employment commenced. In any event, no indication was given to the applicant during the course of negotiations leading up to his appointment that the area into which he was to be employed was under review and that there was any concern within the respondent's operations in particular about the extent of the non-performing loans. I do not make this observation by way of criticism because there was a general malaise throughout the financial world at that time, and the applicant must have been aware of the state of the economy and what was happening generally to the businesses of financial institutions at that time.

[89]

61 In the proceedings before the Full Federal Court, it had been held, as to the nature of an appeal under s 45 (see Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200 at 228 - 230): Section 45 might be approached on the footing that all appeals that might be brought under it are appeals of the same character. That is, appeals against all the matters identified in the paragraphs (a) to (g) in s 45(1) are of the same character irrespective of whether the decision, act or function referred to in the paragraph involved the exercise of discretionary power or involved the exercise of a non-discretionary power such as determining whether the Commission had jurisdiction in a particular proceedings. On this approach the judgment of the High Court in Brideson (No 2) would lend strong support for the view, or even dictate, that the Full Bench, if it grants leave, engages in the task described in the judgment of the Court in Brideson (No 2) . That is because the appeal arising under s 45(1)(g) concerns essentially the same, though in some respects wider, powers that were the subject of appeal under s 88F and considered in Brideson (No 2) . That approach denies, when determining the appeal, the operation of the principle discussed by the Full Bench of the C&A Commission in the AWU v Poon Bros and recently confirmed by a Full Bench of the Commission in Asahi Diamond Industrial Australia Pty Ltd v Automotive Food Metals and Engineering Union (1995) 59 IR 385 which was a bench constituted by the President, the two Vice Presidents and two other members of the Commission. That Full Bench confirmed that the approach of the Commission in determining an appeal against the exercise of a discretionary power should be that identified in Poon Bros v Australian Workers Union . However such an approach to the jurisdiction created by s 45 would ignore the disparate range of powers and functions that are amenable to appeal under s 45. As was apparent from the decision of the High Court in Brideson (No 2) the nature of the power that is subject to appeal is a material, if not critical, consideration in ascertaining the nature of the appeal. It is not a novel proposition that the nature of the power which is amendable to appeal is material in ascertaining the nature of the appeal: see Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 285 and 298. Section 45 enables an appeal to be brought against the exercise of a discretionary power as well as powers which involve no discretion such as finding or not finding the existence of an industrial dispute. Section 45(7) confers wide powers on a Full Bench when hearing an appeal and the nature and scope of the powers are consistent with an appeal in which the Full Bench would simply exercise afresh the power from which the appeal was brought. However they are equally consistent with an appellate function where, if the appeal was against the exercise of a discretionary power, the appellate jurisdiction of the Full Bench was limited to ascertaining whether the discretion was erroneously exercised and if it was, correcting the error. The fact that the Full Bench may entertain further evidence is not inconsistent with a strict appeal: see Duralla Pty Ltd v Plant (1984) 2 FCR 342, though the approach to be adopted in a review of a discretionary decision may alter if fresh evidence is led because the factual matrix in which the exercise of the power would have to be considered might have altered: see Petreski v Cargill (1987) 18 FCR 68 at 75 and the observations of Toohey and Gaudron JJ in Mickelberg v The Queen (1989) 167 CLR 259 at 298. The better view is that s 45 was intended to create several types of appeal with differing characteristics having regard to the power, act or function against which an appeal can be brought. The powers, acts or functions are identified in s 45(1). If the power, act or function is one that is truly discretionary, such as a decision under s 111(1)(g) to refrain from further hearing a dispute: see s 45(1)(d), then the appellate function of the Full Bench, if leave to appeal is given, involves ascertaining whether the exercise of the discretion was attended by appellable error of the type discussed in House v The King . The rationale for the appeal being of that character was discussed by Mason and Deane JJ in Norbis v Norbis (1986) 161 CLR 513 at 518-519: … If on the other hand the appeal under s 45 is against the exercise of a power, act or function which is not discretionary such as a decision that a member has jurisdiction: see s 45(1)(g), or is, additionally, a function that must be exercised by reference to current facts (that is, facts existing at the time the Full Bench hears the appeal) such as a decision of a designated Presidential member under s 189 to register an association of employees as an organization of employees: see s 45(1)(f), then the powers and functions of the Full Bench are not so constrained. Further, if the appeal is against the exercise of a discretionary power, and the Full Bench permits the tender of evidence that alters the factual matrix by reference to which the power had earlier been exercised, then, as earlier discussed, that would bear upon the application of the principles in House v King . It would not, however, alter the nature of the Full Bench's jurisdiction.

[91]

[11] It was pointed out in Brideson [No 2] that "the nature of [an] appeal must ultimately depend on the terms of the statute conferring the right [of appeal]". The statute in question may confer limited or large powers on an appellate body; it may confer powers that are unique to the tribunal concerned or powers that are common to other appellate bodies. There is, thus, no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another. [12] It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance. [13] If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing. [14] Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance. [15] The provision considered in Brideson [No 2] conferred power on the Commission to take further evidence, a provision which is indicative of an appeal by way of rehearing. It also required the Commission to "make such order as it [thought] fit". The latter requirement indicated that the Commission's appellate powers were not constrained by the need to identify error on the part of the primary decision-maker, but, rather, that the Commission was obliged to give its own decision on the evidence before it. [16] The terms of s 45 of the Act are different from the terms of the provision considered in Brideson [No 2]. Unlike that provision, s 45 does not require a Full Bench of the Commission to "make such order as it thinks fit". Nor is there anything else in the terms of s 45 to suggest that the powers of a Full Bench are exercisable or, as in Brideson [No 2], are required to be exercised in the absence of error on the part of the primary decision-maker. [17] Because a Full Bench of the Commission has power under s 45(6) of the Act to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under sub-s (7) are exercisable only if there is error on the part of the primary decision-maker. And that is so regardless of the different decisions that may be the subject of an appeal under s 45. [18] The Full Court was in error in thinking that the nature of an appeal under s 45 differs according to the nature of the decision under appeal. However, it was correct to hold that, in the case of a discretionary decision, the exercise by a Full Bench of the Commission of its powers under s 45(7) of the Act depends on the decision at first instance being attended by appealable error. That being so, it is necessary to consider the manner in which the Full Bench determined the appeal from Boulton J. Before doing so, however, it is convenient to say something as to the concept of "a discretionary decision".

[95]

(a) the nature of an appeal is to be determined as a matter of construction having regard to the provisions of the relevant statute providing for the appeal and the nature of the decision the subject of appeal. (b) in saying that the nature of an appeal must ultimately depend on the terms of the statute conferring the right of appeal, it must be recognised that the statute may confer limited or large powers on the appellate body; it may confer powers which are unique to the tribunal concerned or powers which are common to other appellate bodies. There is thus no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another. (c) "an appeal in the strict sense" is an expression commonly and conveniently used to describe an appeal to a court or tribunal the function of which is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given. (d) "an appeal by way of rehearing" is an expression commonly and conveniently used where the appellate tribunal can receive further evidence and where an appellate tribunal's powers are not restricted to making the decision that should have been made at first instance. (e) in an appeal by way of hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing. (f) ordinarily, if there has been no further evidence admitted and no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing may exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. (g) statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless the contrary is in some way indicated, the power is to be exercised for the correction of error. (h) however, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance. (i) a provision conferring power to take further evidence is indicative of an appeal by way of rehearing. (j) a provision that the appellate body is to make such orders as it thinks fit is indicative of the appellate powers being relevantly unconstrained by the need to identify error, but rather, that the tribunal is obliged to give its own decision on the evidence before it.

[103]

70 See also the "Note" attached to s 191. Whilst it may be observed that s 9 of the Industrial Relations Act provides that "Notes" in the text of the Act do not form part of the statute, s 34(2)(a) of the Interpretation Act 1987 permits such a note to be taken into account in interpreting the statute. The limits to the literal application of the words of s 191(3) and the significance of the reference to Big W Discount Stores v Donato, in the Note to s 191 were addressed by the joint decision of Hungerford J and Murphy C in Re Solicitors (State) Award (No 3) (1997) 72 IR 225 (with whom Peterson J agreed in this regard at 240), where it was stated (at 233 - 235): However, to the extent the respondents argued we should apply on appeal the sole test applicable to an appeal against discretionary decisions said to be required by s 191(3) of the 1996 Act, and as that difference between the parties was fully argued, we should deal with it. It became apparent under the 1991 Act that divergent views as to the nature of an appeal developed within the then Commission as demonstrated in Electricity Commission of New South Wales T/as Pacific Power v. Crump and Big W Discount Stores v. Donato , on the one hand, and Outboard World Pty. Limited T/as Budget Waste Control (Sydney) v. Muir , on the other hand. The differing views related very much to the ability of an appellate bench to call for fresh or new evidence on appeal. To address the perceived differing views on the proper nature of an appeal, sub-s (3) of s 191 was included in the 1996 Act in the following terms: (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received. Although not forming part of the 1996 Act (see s 9 thereof) but able to be taken into account in the interpretation of a provision of a statute in resolving ambiguity, obscurity, manifest absurdity or unreasonableness (see s 34(2)(a) of the Interpretation Act 1987), a note at the end of s 191 states that the section generally follows the decision in Donato as to the nature of an appeal and that "the appeals in respect of which the section applies include appeals in connection with awards, unfair dismissals, approvals of enterprise agreements, unfair contracts or contraventions of dispute orders." So, on its face, the sub-section seems to apply a single test to all appeals, as Mr. Kite and Mr. Kimber submitted before us, whereas the note infers that it applies to certain stated appeals but not to other unstated appeals. Hence the ambiguity, albeit that the sub-section was enacted "to avoid doubt". The matter becomes a real issue, as argued in this case, where the appeal involves questions of law and/or fact not requiring the exercise of a discretion. Given that statements in Hansard by a Minister in introducing a bill can be admitted as evidence of the mischief sought to be remedied by the statute (see Building Construction Employees and Builders' Labourers Federation of New South Wales v. Minister for Industrial Relations and, in any event, s 34(2)(f) of the Interpretation Act as to the use of extrinsic material in statutory interpretation), the speech by the Minister in moving the second reading of the Industrial Relations Bill 1995, which was adopted in the moving of the later Industrial Relations Bill 1996 leading to the 1996 Act, relevantly stated: [the extract from the Minister's Second Reading is then set out and the judgment continues]

[104]

It is clear to us that the vice sought to be remedied by the legislature was the "differing interpretations" as to the appeal provisions in the 1991 Act. The remedy, eventually s 191(3) of the 1996 Act, as the speech again made clear, was "to be applied by full benches when considering appeals against discretionary decisions of single members" (emphasis in original) and as being "the appropriate principle to apply in appeals against decisions involving an exercise of discretion." In our view, then, and although the Minister indicated "no intention to have two types of appeals and differing approaches to the nature of the appeal principles", the identified mischief and statutory remedy only concerned appeals against discretionary decisions; otherwise, in our view, appeals against matters of law and/or fact were to continue to attract the long-standing and ordinary principles. Even though that will result in different approaches on appeal, the difference will be not a differing approach to the same type of appeal but only the adoption of the appropriate principles according to the type of appeal being considered. We find on this aspect, therefore, that the submissions by Mr Wright are to be preferred over those of Mr Kite and Mr Kimber . In summary, we consider the proper approach to this appeal, and as being entirely consistent with s 191 of the 1996 Act, to be in accordance with the decision of the Full Court ( Bauer , Hill and Hungerford JJ.) of the former Industrial Court in relation to appeals pursuant to s 297 of the 1991 Act in Haynes v. C.I. & D. Manufacturing Pty. Limited , namely: Our view is that such an appeal is an appeal stricto sensu on both fact and law, and not, we think, by way of a hearing de novo . As Lord Westbury L.C. observed in Attorney-General v. Sillem ((1864 10 H.L.C. 704 at 724) "(a)n appeal is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below" - we regard that as apposite in describing the nature of appeals to the Full Court pursuant to s.297(2)(d) of the IR Act. That principle requires attention by us to the findings of fact made by Schmidt J. to determine whether such findings, and the inferences drawn from them by her Honour, revealed any error authorising appellate interference: per Kirby P. in Walker v. Industrial Court of New South Wales ((1994) 53 I.R. 121 at 129) and per McHugh J. (with whom Mason C.J., Deane , Dawson and Gaudron JJ. agreed) in Abalos v. Australian Postal Commission ((1990) 171 C.L.R. 167 at 178ff). It is not, of course, we would interpose, every case which would require an appellate court to substitute its views for those of the primary judge, and in that respect we agree with the comment by Hill J. sitting on appeal in this Court in Hussmann Australia Pty. Limited v. Walker ((1993 48 I.R. 396 at 406) to the effect that there should be no interference with "conclusions on facts unless (the Full Court) is of the opinion that they were not reasonably open on the evidence". Appeals against a decision involving the exercise of a discretion by the primary judge, on the other hand, have long required that the appellate court is not justified in interfering with the decision appealed from unless it reaches the clear conclusion that by reason of some error, whether of fact or of law, the primary judge not only has taken a different view but has failed properly to exercise the discretion conferred: House v. The King ((1936) 55 C.L.R. 499 at 504-505) and Mace v. Murray ((1955) 92 C.L.R. 370 at 378). For completeness, we may perhaps add the special position of the primary judge in cases dependent for their outcome on the demeanour and credibility of witnesses in resolving conflicts in the evidence: Abalos (at 179). The duty of the Full Court on appeal to make its determination on the evidence adduced at first instance is qualified by its ability to call for any other evidence, whether or not fresh or new evidence, and information: s.299. Notwithstanding that power to receive fresh or new evidence, we do not regard such a provision as changing the nature of the appeal, as we have stated it, given by s.297(2)(d). If fresh or new evidence be admitted on appeal, a course arising only where the Full Court itself, and not a party, has "called for" it, the result is that the Full Court will review the challenged decision on the evidence below and on such fresh or new evidence as it thinks fit to receive: see Professional Officers' Association of N.S.W. & Anor. v. N.S.W. Teachers' Federation & Ors ((1994) 54 I.R. 85 at 107). For completeness, we refer to and adopt the decision of the Full Commission ( Bauer and Hungerford JJ, and McKenna C.C.) of the former 1991 Act Commission in Re Government Cleaning Service (Privatisation) Award (No.3) as to the principles to be applied on appeal, and in which the various aspects were reasoned extensively, as being consistent with s.191 of the 1996 Act as to the nature of an appeal: see also the observations to a similar effect concerning the nature of an appeal by the Full Court of the former Industrial Court in Port Macquarie Golf Club Ltd. v. Stead . (footnotes omitted) 71 This decision was adopted by the Full Bench of the Commission in Court Session in Stone Microsystems (Aust) Pty Limited v Kwong (1997) 42 NSWLR 160 at 163, (1997) 85 IR 237 at 239. Having set out the provisions of s 191 the Full Bench in Stone Microsystems v Kwong stated: The section applies to all appeals, with the exception of appeals in criminal cases, to a Full Bench of the Commission whether under the 1996 Act or the 1991 Act (cl 31(5) sch. 4 of the 1996 Act). However, not infrequently, such appeals do not raise questions going to the exercise of discretion at first instance. Many appeals raise only questions of fact or law (including jurisdiction) and/or questions of mixed fact and law; some may raise those questions and also questions going to the exercise of discretion; others may raise only questions of discretion. Accordingly, despite the literal width of s 191(3), it must, in our view, be read down to have application only to an appeal in so far as it raises a question going to the exercise of discretion by the primary tribunal. To the extent that an appeal involves questions of fact and/or law then the normal principles applicable to such appeals apply. (reference was made to the decision in Re Solicitors (State) Award and the judgment continued at 239): We agree with the decision of the Full Bench of the Commission in relation to the meaning and effect of s 191. Accordingly, in the present appeal, issues relating to the existence of a contract or arrangement under which a person performs work in an industry and findings of fact and/or law relevant thereto, and the issue of the unfairness of any such contract or arrangement and findings of fact and law relevant thereto, are matters which will attract the normal principles which apply to appeals stricto sensu on questions of fact and/or law ; issues concerning the avoidance of the unfair contract or arrangement and the making and amount of monetary orders in connection therewith (except as to any questions of fact or law) will attract the principles applicable to the determination of appeals against discretionary decisions, namely, the principles laid down in House v The King and Mace v Murray . (footnotes omitted).

[128]

96 His Honour relied upon, and adopted as his reasoning as to the Court Session's jurisdiction to determine a compensation payment for distress, his judgment in Pullen v R & C Products Pty Limited (1994) 60 IR 183 at 215. In that case, Marks J posed the question in this way: Should compensation be awarded for the temporary physical damage and for the more enduring mental distress which the applicant suffered? Some guide may be obtained from those authorities which deal with damages which are properly recoverable at law. The seminal decision is Addis v Gramophone Company Limited [1909] AC 488. In that case the House of Lords held that an employee who had been dismissed in circumstances which were in breach of his contract of employment was unable to recover damages for injured feelings and loss of employment prospects. The decision in that case has remained unchallenged in Australia to the present time. It was considered by the High Court in Baltic Shipping Company Pty Limited v. Dillon (1993) 176 CLR 344. Mason CJ noted that there are exceptions to the application of the House of Lords decision in well recognised areas including circumstances where the plaintiff had suffered physical damage. Mason CJ did not attack the general application of Addis save for a restatement of the well known exceptions. McHugh J also dealt with Addis in some detail. He shared the approach of Mason CJ which questioned the policy grounds upon which Addis rested. However his Honour was not prepared to over-rule the application of Addis. (The other members of the High Court in large measure agreed with the judgment of Mason CJ.) 97 His Honour in Pullen found (at 216): In the absence of any finding that the contract of employment should be varied to insert any contractual term covering the circumstances in which the termination process should be undertaken, I am not inclined to award any moneys by way of compensation for any physical damage or any inconvenience and distress suffered by the applicant. 98 His Honour expressed the view that any orders as to monetary payment "must have some relevance to the contract or arrangement under attack and to any loss or damage directly sustained by the applicant." His Honour held the Commission in Court Session had power to award monetary compensation for "physical and mental injury" sustained by an employee consequent upon the termination of his employment. As his Honour reasoned at [110]: The power set out in s 106(5) of the Act to make an order for the payment of money is circumscribed by two matters. Firstly, the payment of money must be 'in connection with' any contract which is voided or varied. Secondly, the payment must be 'just' in the circumstances.

King v State Bank of New South Wales

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