Mullins v Director General, NSW Department of Education and Training [2006] NSWIRComm 258 | Case summary

1 This is an application for leave to appeal and appeal from a decision given by Commissioner Cambridge on 29 July 2006, when the Commissioner determined to adjourn the hearing of the application brought by Mr Mullins under s 84 of the Industrial Relations Act 1996 ('the Act'). In the proceedings below, Mr Mullins is seeking reinstatement in his employment with the respondent. 2 The adjournment arose after Mr Quinn, appearing for the respondent in the proceedings below, raised the jurisdictional matter upon which the respondent relied, namely that the Commission had no jurisdiction to hear Mr Mullins' application, because he had not been dismissed, nor threatened with dismissal, from his position as a teacher employed by the respondent. That jurisdictional point had been raised in the earlier conciliation proceedings before Commissioner Tabbaa and was sought to be argued by the respondent at the outset of the hearing. It accepted that having raised the matter, it should be obliged to put its argument on the point at the outset of the hearing. 3 Commissioner Cambridge was reluctant to proceed to hear the matter on that basis. 4 Mr Mullins, who was on sick leave at the time of the hearing below, raised his concern about any delay in the hearing. He was seeking to argue that he had already been constructively dismissed from his employment and also that he felt under pressure to resign from his employment. 5 The Commissioner indicated that while he was prepared to hear Mr Mullins' substantive application, he was not prepared to hear the jurisdictional argument, which the respondent sought to press. In that event, the Commissioner indicated that he thought it necessary to adjourn the hearing. 6 Mr Mullins protested such an adjournment, asserting that he was in a position to deal with the matter. He also accepted that he was obliged to correct a deficiency which appeared in the undertaking required to be given by him under s 90 of the Act, which the respondent had also raised. 7 Despite the position of both parties, the Commissioner decided to adjourn the hearing and to give further directions. The Commissioner required the parties to start 'afresh', in filing material relevant to the jurisdictional point, noting that his usual requirement was that an application raising jurisdiction be dealt with by way of notice of motion, although he did not impose that requirement, in the directions given. 8 In his application for leave to appeal from the Commissioner's decision to adjourn the hearing, Mr Mullins relied upon a range of matters, said to be relevant to the question of leave. He sought orders which included an 'order 187(a) appeal to full bench' and stay of the decision appealed against, 'so that my application for reinstatement under form 59 could assist in expediting my combined claim (constructive dismissal and the reinstatement)." 9 Walton J, Vice-President, refused Mr Mullins' application for stay of the Commissioner's decision, taking the view that in the circumstances, any stay was a futility. This was because after the adjournment of the hearing before Cambridge C, the matter was re-allocated for hearing to another Commissioner, Commissioner Ritchie. Mr Mullins' application was listed for hearing on 18 August. 10 Directions were given for the filing of written submissions by the respondent by 9 August. Mr Mulllins was given until 23 August to reply. The parties agreed that the appeal would be determined on the papers. While the respondent filed written submissions, Mr Mullins did not. The Full Bench granted Mr Mullins a further period of time to file any submissions on which he wished to rely. The Industrial Registrar advised Mr Mullins of the extension and that, if no submissions were filed by 6 September, the appeal would be decided on the basis of the submissions filed by the respondent. 11 Mr Mullins replied to the Registrar's letter on 6 September, attaching copies of various documents filed in the proceedings below and in other proceedings, including an amended application, certain submissions and annexures. 12 The case put for the respondent by Mr Newall of counsel was that there was, in fact, no decision made by Commissioner Cambridge, which could be the subject of appeal under s 187 of the Act and that leave to appeal could not, therefore, be granted by the Full Bench in accordance with s 188. In any event, given what had transpired below, leave to appeal would not be granted by the Full Bench, in relation to the decision to adjourn the hearing, having regard to the applicable principles. 13 The concerns raised by Mr Mullins before Justice Walton, when the question of the stay of the Commissioner's decision was dealt with, went to the resulting delay in having his application dealt with, given the adjournment which followed from the respondent raising the Commission's jurisdiction to deal with his application. Mr Mullins also relied upon the stress which resulted and the pressure which he felt to resign from his employment. Mr Mullins' case was always that while he had not resigned, there had already been a constructive dismissal. In those circumstances, he was concerned about the Commission's delay in dealing with his application, in which he was pursuing orders of reinstatement. It is unnecessary to outline the other material filed, given what we are called upon to decide in these proceedings and its irrelevance to those questions. Consideration

14 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].) 15 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 113.) 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].) 16 The principles which apply to interlocutory appeals, are also well settled. Such appeals are generally discouraged - see National Australia Bank v Cassino (2002) 137 IR 1 and Verso Technologies Inc (formerly Eltrax Systems Inc) v Rasmussen & Ors (2004) 135 IR 147 at 158. 17 This application arises in rather unfortunate circumstances. Mr Mullins' complaint essentially relates to the adjournment of the hearing of his application because of the view that Commissioner Cambridge took that the jurisdictional point raised by Mr Quinn had not been sufficiently raised earlier, so that the hearing could not proceed. Both parties pressed that the matter be heard, in Mr Quinn's case, on the basis that the matter which he sought to press had been raised earlier in the conciliation proceedings before Tabbaa C. Mr Mullins did not dispute that assertion and also pressed for the hearing to proceed. Despite that common position, the Commissioner declined to hear the parties. 18 While the Full Bench takes the view that the course adopted was not the appropriate one in the circumstances and led to an unnecessary delay in Mr Mullins' application being dealt with, it does not necessarily follow that leave to appeal should be granted. The question is governed by s 188 of the Act, which provides: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. 19 The appeal brought relates to an interlocutory decision to adjourn a hearing, which neither party sought and indeed, both opposed. While an adjournment in such circumstances is unusual and inappropriate, the appeal raises no questions of principle, but concerns the exercise of a discretion. In considering the question of leave, it also cannot be overlooked that, in reality, the delay occasioned by the adjournment about which Mr Mullins complains, was in a practical sense addressed in the meantime, by the re-allocation of the file to another member of the Commission, with the adjourned hearing fixed to have taken place, even before the timetable for filing the submissions on appeal had expired. 20 While the delay in the hearing of the application may be regrettable, it follows that the circumstances are not such that leave to appeal may properly be granted. In reality, even if leave were granted, the effect of the decision to adjourn the hearing could not be altered by anything which this Bench could order on appeal. There is, therefore, no utility in the appeal. Leave to appeal should be refused. Orders

Mullins v Director General, NSW Department of Education and Training

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

21 For the reasons given, leave to appeal is refused.

Parties

Cases Cited (10)

Cited By (3)