Lord v Flight Centre Limited

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420Austin v NF Importers Pty Ltd & Anor (2004) 136 IR 309Box Valley Pty Ltd v Price (2000) 97 IR 484Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264Da Silva and Sunlake Real Estate Pty Ltd t/as L J Hooker Morisset [2005] NSWIRComm 193De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Lord v Flight Centre Limited [2006] NSWIRComm 188Mealey and the Council of the City of Sydney [2004] NSWIRComm 58Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 Strathfield Group Ltd v Hall (2002) 121 IR 158Webb v Goulburn Masonic Village (2004) 136 IR 309

HEARING DATES: 04/09/06 EXTEMPORE JUDGMENT DATE: 09/04/2006

APPELLANT: Ms Melissa Lord LEGAL REPRESENTATIVES:

RESPONDENT: Mr John Whateley

CORAM: Walton J, Vice-President Schmidt J Grayson DP

Application by Melissa Lord to extend time to appeal and leave to appeal and appeal against a decision of Commissioner McLeay given on 22.2.2006 in matter no. IRC 1342 of 2005

DECISION OF THE COMMISSION (EXTEMPORE) [2006] NSWIRComm 282

1 Melissa Lord seeks leave to appeal and appeals from a decision of Commissioner McLeay, given on 22 February 2006, dismissing her application under s 84 of the Industrial Relations Act 1996 ('the Act'), for want of prosecution. An extension of time to appeal from that decision was granted by Schmidt J on 29 May (See Lord v Flight Centre Limited [2006] NSWIRComm 188). 2 As Schmidt J observed in her May decision:

9 Here it appears that the decision given by Commissioner McLeay in the unfair dismissal proceeding brought by Miss Lord under s 84 of the Act, followed conciliation proceedings conducted by the Commissioner in which the proceedings were adjourned by consent, while other proceedings between the parties before the Local Court, were dealt with.

10 In those proceedings the respondent had been seeking to recover moneys from Miss Lord, which she had allegedly wrongly obtained from a trust account. How the matter before the Commission came to be dismissed for want of prosecution on 22 February, is entirely unclear on the face of the Commissioner's decision. Comments in transcript are no substitute for reasons in a decision. (See Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33 at [41]) However, the transcript of 9 December suggests that the decision to dismiss did not result from an application made by the respondent, but rather from steps taken by the Commissioner herself.

11 It was common ground that the Commissioner later acted to dismiss the application for want of prosecution, without giving either party an opportunity to be heard, before that order was made. No explanation for the decision was given.

3 It was Ms Lord's case that her application was dismissed without sufficient opportunity being given to her to present her case and that after the decision had been given, she was not advised of the decision or of the appeal process available. There had been a confusing overlap between the proceedings below and the proceedings initiated by the respondent before the Local Court, which had been dismissed on 21 March. Fresh proceedings had subsequently been commenced and had since been dismissed. The proceedings before the Commission had been delayed, because the parties and the Commissioner had 'agreed to wait until the Local Court proceedings had been finalised before advancing the IRC proceedings.' The Local Court proceedings were on foot at the time of the Commissioner's decision. 4 It was the respondent's case that Ms Lord had continuously delayed and failed to comply with directions made, both in the proceedings below and in the proceedings before the Local Court. The Commissioner had given Ms Lord ample opportunity to comply with the Commission's directions and had explained the consequences of a failure to do so. The Commission was not obliged to advise Ms Lord of her rights of appeal from the Commissioner's decision. The proceedings were frustrated by Ms Lord's actions. Ms Lord was given a proper opportunity to determine if she wished to pursue the application, before it was dismissed. Accordingly, this application ought to be dismissed. Consideration

5 It is well settled that leave to appeal will never be lightly granted and not when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance. An appeal bench is ultimately concerned with correction of error. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265; De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at 482; Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 and Strathfield Group Ltd v Hall (2002) 121 IR 158 at [45].) 6 It is also well settled that 'some issue of real significance in the interests of justice will need to be identified for such an application to succeed.' (See Austin v NF Importers Pty Ltd & Anor (2005) 146 IR at [4].) If an appeal seeks, by and large, merely to challenge findings of fact or the exercise of a discretion, it will face a significant hurdle in obtaining leave. (See Box Valley Pty Ltd v Price (2000) 97 IR 484 [4].) 7 The complaint advanced in this case is that the Commissioner exercised the discretion to dismiss Ms Lord's application for want of prosecution during the conciliation process and without giving Ms Lord a proper opportunity to be heard. 8 As Schmidt J found in her May decision: 15 On 9 December, the Commissioner forcefully raised with Miss Lord the need for her to communicate with her office as to progress in the Local Court proceedings: Commissioner: I am putting on record now notice to you that if you did not comply with directions I will look at - I am not saying I will do this but I may do this - dismiss your application for want of prosecution. Do you understand that? Miss Lord: Yes. Commissioner: I have the power under the Act to do that, I have every right to do that, and I am giving you formal notice right now that that's what I will consider if you don't comply with any further instructions from this Commission.

9 What the Commissioner was requiring of Ms Lord was that she give the Commission a written report of progress in the Local Court proceedings by 17 February. On 22 February, not having received that report, the Commissioner dismissed the application without further hearing from Ms Lord. The discretion to which the Commissioner referred, appears in Rule 146 of the Commission's Rules, which provides:

146 Want of prosecution Where any party has not done any act required to be done by or under the Act or any other Act or otherwise has not pursued the proceedings with due diligence, a tribunal may: (a) order that the application be dismissed for want of prosecution, or

(b) fix a definite time for the doing of the act and at the same time order that upon non-compliance the application shall stand dismissed for want of prosecution or subsequently, in the event of non-compliance, order that it be dismissed, or

(c) make such further or other order as in the circumstances may seem just. 10 In her decision, the Commissioner said:

Proceedings in this matter are concluded on the basis that the applicant has not pursued the application with due diligence.

Accordingly the application is dismissed for want of prosecution.

11 No reasons for that decision were given, nor were the parties heard on the question of whether the application should be dismissed, before the application was dismissed, despite what the Commissioner had earlier advised the parties. Both what the Commissioner said on 9 December, and considerations of natural justice, required that before the Commission's discretion to dismiss the application was exercised, the parties be heard. (See Da Silva and Sunlake Real Estate Pty Ltd t/as L J Hooker Morisset [2005] NSWIRComm 193; Mealey and the Council of the City of Sydney [2004] NSWIRComm 58). There can be no doubt that in this case Ms Lord was not given that opportunity. 12 Having decided to exercise the discretion, in the ordinary way the Commissioner was obliged to give reasons for the decision. This she also failed to do. Her decision does not provide any explanation, either to the parties or to the appeal bench, as to why the Commission's discretion to dismiss the application was exercised. It is the respondent's contention that Ms Lord frustrated the proceedings below by her conduct. That this was the reason for the decision reached is not, however, apparent. In those circumstances, whether such a view was properly open to the Commissioner in the circumstances, may also not be tested. 13 The need for reasons to be given has often been discussed. It is a particularly important requirement, in circumstances where a case is dismissed, without the parties being heard. In Webb v Goulburn Masonic Village (2004) 136 IR 309, it was observed: 33 As to the issue regarding the failure of the Commissioner to give adequate reasons for his decision, there are numerous cases that address the requirement on judges to give adequate reasons for their decisions: Petitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271-272 per Mahoney JA and at 280-281 per McHugh JA; Yates Property Corporation Pty Ltd (in liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA; Mifsud v Campbell (1991) 21 NSWLR 725 per Samuels JA at 728. The statements regarding the requirement to give adequate reasons have been approved in a number of decisions of the Commission: Woolworths Ltd v National Union of Workers, NSW Branch (unreported, Fisher CJ, Hungerford and Peterson JJ, CT96/1060, 1065 and 1074, 12 July 1996); Lismore Challenge Ltd v Lavis (1999) 88 IR 230 at 235; WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Allen Taylor & Co Ltd (1999) 92 IR 392 at 393.

34 In Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 459, the Full Bench held: Although the failure of a judicial officer to provide adequate reasons may constitute an error of law (see Pettit v Dunkley (1971) 1 NSW LR 376 at 388), the extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271 -273 per Mahoney JA and at 280-281, per McHugh JA, and Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA). It is not always necessary for a judicial officer to expose every step in his or her chain of reasoning.

35 In Lorna Britton and Riverstone Public School (unreported, Matter No IRC 5504 of 1998, IRC of NSW, Schmidt J, Sams DP and McLeay C, 6 May 1999), an appeal involving an unfair dismissal from Commissioner Buckley , the Full Bench, after referring to Woolworths Ltd v National Union of Workers, NSW Branch and Soulemezis , observed that: It also follows that where reasons which are given are brief, they nevertheless must deal with the particular issues of fact and law which call for determination in the case ... What is required is for reasons to be given in relation to the issues which require the Commission's determination in the particular case.

36 We also refer to Entertainment Distributors Company Pty Limited v Burnard (1993) 49 IR 446 at 452, an appeal from a decision of Conciliation Commissioner McMahon and Monier PGH (Holdings) Ltd v Horsey (1998) 86 IR 63 at 72-73.

37 In Edwards v Giudice (1999) 169 ALR 89 Marshall J (with whom Moore J agreed, Finkelstein J not finding it necessary to determine) made certain findings regarding the obligation on a non-judicial member of the Australian Industrial Relations Commission ("AIRC") to give adequate reasons for any decision. At [44] to [46] his Honour stated: 44 In a seriously contested case before a tribunal which is required to afford procedural fairness and act judicially, an arbitrator is obliged to disclose the steps involved in the reasoning which leads to a particular result. There does not appear to be any obligation expressed in the Act to require a member of the Commission to give adequate reasons for a decision. It does not thereby follow, however, that in some cases such as strongly contested ones where a final order of significant consequence may be made that full reasons should not be given. 45 As Deane J said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366: A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made. 46 The obligation to give adequate reasons may more readily arise when a right of appeal lies from the order which gives effect to the decision at first instance, as is the case in the instant circumstances. Indeed a statutory right of appeal was considered by the New South Wales Court of Appeal as being a relevant "special circumstance" in the context of the portion of the judgment of Gibbs CJ in Osmond cited above: see Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 per Priestley JA, with whom Powell JA agreed (at 734-5), and per Handley JA at 739.

38 In Edwards v Giudice the Full Bench of the Federal Court was concerned with decisions by a member of the AIRC pursuant to s 170 CG of the Workplace Relations Act 1996 (Cth). Whilst that provision is different from the counterpart provisions in ch 2 Pt 6 of the Industrial Relations Act 1996 (for example s 170CG(3) makes it mandatory for the AIRC to have regard to certain matters whilst s 88 of the Industrial Relations Act leaves it to the discretion of the Commission to take similar matters into account, if appropriate) we, nonetheless, consider that there is an obligation upon non-judicial members of this Commission to "disclose the steps involved in the reasoning which leads to a particular result" in those cases where there is a duty to accord procedural fairness or natural justice. Such cases include applications under s 84 of the Act.

39 The extent to which reasons are required will, of course, depend on the nature of the case and it will not always be necessary to provide "a detailed and exhaustive analysis of each and every matter raised in a proceeding" ( Entertainment Distributors at 452). However, in the present case, the Commissioner did not provide an adequate analysis as to what led him to dismiss the appellant's application. Coupled with the Commissioner's reliance on material that was not in evidence, his failure to provide adequate reasons amounted to a breach of procedural fairness. 14 We endorse those observations and indicate further, that the Commissioner was here required to give reasons explaining why the proceedings were dismissed for want of prosecution, albeit in the circumstances the reasons would have been short. 15 Each of these considerations, both the failure to hear the appellant and the failure to give reasons, lead us to the view that leave to appeal must be granted in this case and the appeal upheld. Orders

16 For the reasons given, we grant leave to appeal, uphold the appeal and quash the Commissioner's decision. The matter will be remitted to a member of the Commission.

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