Paula Lee v Energy Australia

DECISION 1This appeal (subject to leave of the Commission) is against the decision of Commissioner Bishop given on 23 March 2011 in Paula Lee v Energy Australia ( No 2) [2011] NSWIRComm 1014 (" Lee (No 3 )") granting leave to Energy Australia ("the respondent") to adduce further evidence in proceedings for relief against the respondent pursuant to s 213 of the Industrial Relations Act 1996 ("the Act").

History of proceedings 2The decision under appeal was given in proceedings remitted to the Commissioner by the Full Bench allowing an earlier appeal in Lee and Energy Australia [2010] NSWIRComm 157 (" Lee (No 2) ") from a decision of the Commissioner ( Paula Lee and Energy Australia [2010] NSWIRComm 1016 (" Lee (No 1 )")) in which the Commissioner had dismissed Paula Lee's ("the appellant") application for relief.

The decision appealed against 3Over the objection of the appellant, the Commissioner granted the respondent leave to adduce evidence from one of its employees, Mr Colin Locking, former Executive Manager Business Services, Engineering Transmission and Technology Division, Energy Australia, who was a witness at the original hearing of the matter ( Lee (No 1) ) , going to the issue of why he chose the appellant for redeployment in August 2009, over two of the respondent's other employees, Mr Newbery and Mr Kelly. (The failure to consider that question in Lee (No 1) underpinned the decision of the Full Bench to uphold the appeal against the decision.) The evidence ultimately sought to address the question raised by the original application brought by the appellant, namely, whether Mr Locking selected Ms Lee for redeployment for the reason that she had made a complaint about a workplace matter that she considered was not safe or a risk to health. 4The relevant parts of the Commissioner's decision to allow the further evidence are set out below [74] to [89]: 74 I have carefully considered the submissions of the parties and the cases cited in respect of this issue. 75 I propose to grant leave to EnergyAustralia to adduce further evidence from Mr Colin Locking as sought. 76 The proceedings were remitted to me by the Full Bench "to be dealt with in accordance with this decision". 77 There were no directions attached to the remittal, with the Full Bench indicating as follows: 34 In our opinion, it is clear that the Commissioner focused on the question of whether, because of a decrease in the work, one of the employees had to leave the relevant section. However, as we have stated, what the Commissioner did not address was why it was the appellant. At its highest, the evidence of the respondent was that there was insufficient work for three persons. Although the appellant complained that she was singled out for redeployment, the Commissioner failed to consider in her conclusions, why the appellant was chosen for redeployment and not one of the other employees. We agree with the submission of Mr Trew that the Commissioner applied the wrong test, or misunderstood the test that should have been applied in its application to the evidence. That was an error of law and must result in the appeal being upheld. 35 Mr Trew initially submitted that should the Commission reach such a conclusion, the Full Bench should determine the application for itself. However, Mr Trew conceded that it would be necessary to call evidence in respect of the exercise of this Commission's discretion on the question of reinstatement. It was for this reason that the appellant filed a notice of motion to call fresh evidence. That evidence, so senior counsel submitted, would go to whether there was work available at the time of the complaint made by the appellant, whether there was work available at the time of the hearing of the matter before Bishop C and whether there was work available at a later time after the conclusion of the hearing. 36 The respondent's position was that if the Full Bench found error it should remit the matter to Bishop C to deal with these matters in accordance with law. The basis for this submission was that the Commissioner has the relevant background information to the application and the matter should be remitted back to the her. We propose to adopt that course. 78 When the matter was dealt with at first instance the Commission's attention and, it is clear from the submissions to the Full Bench, that of the respondent, EnergyAustralia, were focused on the particulars of victimisation pursuant to s. 210(1)(j) that had been alleged by Ms Lee, the applicant, as follows: 1..... 2..... 3. In about April 2008 the Applicant lodged a complaint with the Respondent in relation to the bullying and intimidatory behaviour of her manager, Mr Syd Newbery, which she regarded as a risk to her health and well-being at work. 4..... 5..... 6..... 7..... 8..... 9. The Applicant is the only employee of the respondent in the iAMS Field Computing Section, Business Services, ET&T Division who has had their status reclassified to "redeployment". 10..... 11..... 12. The reclassification of the Applicant's status to that of "redeployment" and the transfer of her employment to a position in the Standards & Communications Section in the Engineering Transmission & Technology Division of the Respondent, were events subsequent to and as a consequence of the Applicant making the complaint about an unsafe workplace (see paragraphs 3 and 7 above) and were acts by the respondent that constitute victimisation in breach of section 210(1)(j) of the Industrial Relations Act 1996. 79 The focus for the Commission's consideration of the evidence and submissions of the parties was whether or not Ms Lee had been redeployed because of her complaint, and not in general on why she had been redeployed rather than Mr Kelly or Mr Newbery. It did not seem necessary to me determine why she was the person who was selected for redeployment rather than either Mr Kelly or Mr Newbery. as long as I was satisfied that she had not been redeployed because she had made a complaint of bullying and harassment. 80 I went on to find "that the complaint Ms Lee made about an unsafe workplace was not the "substantial and operative cause" of her redeployment on the 12 August 2009," and was satisfied that EnergyAustralia had rebutted the presumption that she was victimised because of her complaint made under s.210 (1)(j). 81 The Full Bench has determined that that finding was an error of law upon my part and remitted the matter to me for further consideration of why Ms Lee was chosen for redeployment rather than either Mr Kelly or Mr Newbery. 82 However, the Full Bench, having determined to grant the appeal did not then go on and address the error identified and determine the matter on the evidence available and before the Full bench, as it could have done, and has done in the past, in such matters as Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117. 83 There was certainly evidence, principally from Mr Newbery and Mr Locking, which I accepted, that the redeployment occurred " because the particular projects on which she had been engaged had concluded and there was no more field computing work to which she could be allocated (and insufficient other work within the section to support three employees). 84 That evidence did not address to the issue of why Ms Lee was chosen for redeployment rather than Mr Kelly or Mr Newbery. There was certainly evidence that their future in the particular work area was of limited and finite duration given the status of finalisation of the projects and some evidence about some tasks on which Mr Newbery was engaged. 85 I do not consider that EnergyAustralia simply failed to address the issue and therefore as a consequence they should be precluded from bringing further evidence from the decision maker Mr Locking as to why in particular Ms Lee was chosen for redeployment rather than Mr Kelly or Mr Newbery. 86 True it is that Ms Lee raised that issue in her oral submissions as summarised in my decision. This was the first time that the issue was articulated in those terms. However that issue was not the focus of the totality of the evidence in the light of the very specific allegations she had made. I also note from the transcript that Ms Lee did not raise that issue with Mr Locking in cross examination (and nor did the Commission) when she clearly had the opportunity to do so. 87 The Full Bench did not issue any directions or indeed make any observations as to any further evidence to be adduced in the further consideration of this matter only reference to Mr Trew's submissions (see above) as to the necessity for adducing further evidence on the question of reinstatement. 88 I am a very firm view that it would not be possible to reach a conclusion on the evidence admitted at first instance as to why Ms Lee was chosen for redeployment rather than Mr Kelly or Mr Newbery. I do not consider that Ms Lee should therefore be successful by default as it were. That would not be in accordance with my duty to act "according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms". 89 I consider that EnergyAustralia has made out a sufficient case for the calling of further necessary and specific evidence from Mr Locking on the issue for determination and I therefore grant the application as sought and as set out in the orders below. 5In addition, the appellant complained that the Commissioner had acted unfairly in making orders extending time to comply with a notice to produce without hearing both parties.

Leave to appeal 6The application for leave to appeal concerned an issue that affected the course of the subsequent proceedings remitted to the Commissioner. To allow the proceedings to continue following an important erroneous decision, without correction, would have substantial and deleterious consequences. Amongst other things, the hearing would proceed in relation to wrong issues and probably result in a mistrial leading to a further appeal. 7Further, the failure to properly consider the central submissions of the appellant has led to injustice of the kind referred to in Fletcher Construction Australia Limited v Lines MacFarlane & Marshall Pty Limited (No 2) (2002) 6 VR 1. 8The appeal was a suitable vehicle to revisit the public importance of adequate reasons being given for discretionary decisions.

Apprehended bias 9Mr J Trew QC, who appeared for the appellant, identified two instances of conduct which, he contended, constituted apprehended bias on the part of the Commissioner. (1) The orders of Commissioner on 19 April 2011 where the Commissioner made orders extending time for the respondent to comply with orders made by the Commissioner on 23 March 2011. The appellant contended that the Commissioner made the orders without hearing the views of the appellant. (2) The Commissioner's comment at the commencement of the proceedings on 21 Feb 2011 that she intended to allow evidence from both parties to be adduced. The appellant complained that the Commissioner came to this view before hearing the parties. By way of remedy the appellant sought an order directing a further hearing of the proceedings before a Member other than Commissioner Bishop.

General 10The respondent bears the onus of rebutting a statutory presumption that the appellant was victimised by the redeployment. 11Section 210(2) is Parliament's recognition that the reasons for detrimental action against an employee are, of necessity, peculiarly within the knowledge of the employer. Therefore, to avoid liability the employer must negate the statutory presumption that its conduct has been for the reasons condemned by s 210(1): Heidt v Chrysler Australia Limited (1976) 13 ALR 365 at 373. The statutory imposition of the reverse onus is not a technical requirement; it serves the important public interest of ensuring that justice is done and that the legislative prescription is not defeated by the inability of an applicant to adduce evidence upon a central issue. 12In the earlier proceedings before the Commissioner, the respondent had the opportunity of adducing all evidence that it considered relevant to the claim being advanced by the appellant including the reasons for its actions against the appellant. It had also been given the opportunity to make such submissions it considered relevant in relation to the claim. There was nothing in the reasons of the Full Bench decision to suggest that the Full Bench expected that additional evidence would be received. The Full Bench's conclusion was simply that the reverse onus issue had not been addressed by the Commissioner. The granting of leave to adduce that further evidence was not a formality. It was incumbent upon the party now seeking to adduce further evidence to explain how the omission at first instance occurred. 13Although no directions were given by the Full Bench about the admission of further evidence, the remission order was not an order for a retrial. There had already been a full trial before the appeal. In those circumstances, leave is required before a party will be permitted to re-open its case and lead further evidence. In Murphy v Overton Investments Pty Limited (2004) 216 CLR 388 at [75], the High Court (in a joint judgment) observed: The order for remitter is not an order for retrial. Nothing we have said, however, should be understood as indicating any view about whether, on remitter, an application by either side for leave to reopen its case to lead further evidence should be granted. The question has not yet arisen. We do not have the full record of the evidence led at trial that may bear upon the assessment which must occur. We do not know whether, or to what extent, either side may contend that the evidence already led is deficient. We do not know how, or any deficiency of proof or answer at trial may have come about. 14The Commissioner had no facts before her that enabled her to properly exercise her discretion in favour of the respondent. The Full Bench remitted the proceedings using a familiar and well understood formula that they "be dealt with in accordance with" the Full Bench decision. 15It can be inferred from the actual orders made, the course the Full Bench chose was to enable the Commissioner to consider whether any application to adduce further evidence on the presumption issue should be permitted. 16One of the functions of the tribunal to which the case is remitted following an appeal is to enquire why any deficiency in the evidence may have come about. The issue is not what the Commissioner understood about the issues. It is why the respondent did not adduce the relevant evidence to rebut the presumption. 17The appellant appeals on the ground that the Commissioner failed to properly exercise the discretion to admit further evidence.

No evidence before Commissioner supporting application to adduce further evidence 18Although the respondent based its application to adduce further evidence in the remitted proceedings upon the submission (challenged by the appellant) that the earlier hearing before the Commission "proceeded on the basis of the parties' and the Commission's understanding of the question to be answered by the Commission", it did not put on any evidence to support that submission. It was incorrect in a fundamentally important respect. The appellant's case in the earlier hearing had been that she had been discriminated against by being singled out for redeployment. Her complaint required the reasons to be considered as to why she was redeployed and not the other two employees. In her submissions in opposition to the application to lead the further evidence, the appellant reminded the Commissioner that the relevant issue had been raised by the appellant in her case. That was accepted by the Full Bench in allowing the appeal. 19In McCarthy v McIntyre [2000] FCA 1250 at [33], a failure to lead evidence explaining why evidence had not been led in an earlier hearing was held to be fatal to an application to lead further evidence in proceedings remitted after appeal to the primary judge. In that case, a Full Court of the Federal Court emphasised that it was for the party making an application to adduce further evidence to demonstrate a case for the exercise of the discretion in its favour. That party asks for a significant indulgence in seeking to adduce further evidence after a full hearing on the issues remitted by the appeal court: see at [24], [27] to [28]. The court also held at [30] that if there was a deliberate decision not to call the further evidence at the first hearing, ordinarily that will tell decisively against the application. 20In the absence of any evidence by the respondent in support of its application explaining the omission to lead the further evidence of the first hearing, particularly from a person or persons involved in the earlier hearing and responsible for the evidence adduced on behalf of the respondent, the Commissioner was 'left in the dark' about why it was not called at the earlier time. The solicitors conducting the case remitted to the Commissioner did not participate in the earlier hearing. In the absence of any evidence from the persons involved in making the decision not to lead the earlier evidence, the Commissioner could only speculate about the reasons for that failure. In those circumstances, the respondent's failure to put on evidence explaining why the further evidence was not earlier adduced was fatal to its application. 21Section 191 of the Act prevents a Full Bench on appeal from receiving evidence except in special circumstances, that is, if 'special grounds' exists. Those grounds include the consideration that the evidence could not have been obtained with reasonable diligence for use at the trial: cf Electrical Contractors Association of NSW v Electrical Trade Union of Australia NSW Branch [2003] NSWIRComm 404; 130 IR 284 at [81]. Following an appeal, the Commission to which proceedings are remitted must act with similar circumspection: cf McCarthy at [30]; Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1 at [89]-[94] (" Walker Corporation "); Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79 at [10], [12]-[13].

Failure to give adequate reasons 22The appellant had put squarely to the Commissioner that the absence of evidence in support of the application was fatal to its success. Although the submissions were referred to in the Commissioner's decision, no reasons were given in that decision as to why those submissions were rejected. The Commissioner was obliged to give reasons explaining why (if at all) those submissions were rejected because they were a principal submission relied upon by the appellant: Fletcher Construction at [164]-[166] and QBE Insurance Limited v Switzerland and Insurance Workers Compensation (NSW) Limited (1996) 134 ALR 433 at 437 per Gaudron, McHugh and Gummow JJ. See also Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 270 per Mahoney JA and 279 280 per McHugh JA). In addition, Monier PGH Holdings Limited v Horsey (1998) 86 IR 63 at 71-73 and WorkCover Authority of NSW v Coffey Engineering Pty Limited (No 2) [2001] NSWIRComm 319; 110 IR 447 at [23]-[27] are examples of the Commission and the predecessor of the Industrial Court applying the same principles. 23Further, in the Commissioner's reasons for granting the respondent's application, she stated at [85] that she did not consider the respondent "simply failed to address the issue". That conclusion was silent as to its basis and says nothing about the appellant's submissions. 24In Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 701B - 702E Moffitt P (with whom Glass JA agreed at 713) criticised a trial judge in circumstances having features similar to this case for failing to reveal his reasons to the extent necessary for an appellate court to consider and determine whether an error had occurred in the determination of the question. Moffitt P said it was not satisfactory that the appellate court be left to speculate from collateral observations about the reasoning upon which a critical decision is made when the trial judge can and ought directly reveal them. In the present case, the relevant reasoning was flawed.

Hardship and prejudice 25The granting of the application would add to the hardship and prejudice of the appellant over that she had already suffered. 26The appellant was a professional engineer who, before her redeployment on 12 August 2009, was engaged in work including IT programming. Since that time she had not performed or been offered any work consistent with her qualifications and experience. Although she had done some clerical work during her redeployment, since at least the end of April 2010 the appellant had not been assigned any work. She sits alone at a desk with nothing to do in a section of employees with whom she does not work. They are engaged on other duties. These circumstances, amongst other things, are detrimental to her career development and progression. The other two employees with whom she worked before her redeployment have not been redeployed and appear to be engaged in work similar to that which they performed at the time that the appellant was redeployed. They suggest a serious failure to manage the appellant's redeployment. The appellant's hardship has been exacerbated by the failure of the first hearing of her application to resolve the issues between the respondent and herself. 27Although the appellant represented herself at the first hearing, she has been legally represented since that time and she had incurred considerable legal and other expenses to correct the error made in the first hearing. She continued to incur considerable legal and other expenses. Section 181(2) of the Act virtually excludes any possibility of the appellant ever recovering costs in the proceedings. No offer had been made by the respondent in support of its application to adduce further evidence to compensate the appellant for the legal costs incurred in having corrected the errors made in the first hearing. 28In addition, the Civil Procedure Act 2005, to the extent to which it applied to the Commission, required it to give effect to the overriding purpose of that Act and rules made under it, namely, requiring the "just, quick and cheap resolution of the real issues in the proceedings" and "the timely disposal of the proceedings, and all other proceedings in the [Commission], at a cost affordable by the respective parties": Walker Corporation at [77]-[78]. See also AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. In the circumstances, those admonitions had particular weight, including by giving weight to the respondent's decision not to lead any evidence in support of its application to re-open and also the circumstance that the appellant must bear her own costs. This was an additional significant barrier to the respondent now being granted the indulgence of being permitted at this late stage to re-open its case. 29In addition, it was submitted that allowing additional evidence to be adduced went against s 56 and adversely affected the appellant, who had already suffered in protracted proceedings. The Commission was required by s 56(1) to facilitate, among other things, the resolution of the real issues in the proceedings. The earlier appeal came about due to the respondent's error in asking the wrong question regarding victimisation and unnecessary costs incurred in having to appeal. Sub sections 57(1)(a) to (d) and (2) required the Commissioner to take into account the injustice suffered by the appellant in not being able to recover its costs. Section 58(1) required the Commissioner to act in accordance with the dictates of justice. 30The appellant's health had been adversely affected by the proceedings and has caused difficulties for her family. The appellant had suffered and would continue to suffer incalculable prejudice if the decision to grant leave to the respondent to adduce further evidence remains uncorrected. If the evidence that the respondent now has been given leave to adduce was permitted, it would be necessary to cross-examine the relevant witness (probably at length) after examination and extended consideration of documents that the respondent has been required to produce. The length of the hearing would be extended for an indefinite time with indeterminate consequences.

Error of fact 31The first instance decision contained an error of fact in that the Commissioner gave weight, at [86], to the statement that, although the appellant raised the issue of why she was chosen for redeployment and not the other two employees, that was done for the first time in her submissions at the earlier hearing. 32That this was the first time the question was broached was incorrect and that view of the earlier case was not raised by or with the parties during the hearing of the application under appeal. If it had been raised, it could have been corrected. 33As it was, the correct question had been broached in the application for relief filed 2 September 2009 [at para 9] where the appellant complained that she was the only employee in the relevant section who was redeployed: [9] The Appellant is the only employee of the Respondent in the iAMS Field Computing Section, Business Services Branch, ET&T Division who has had their status reclassified to "redeployment". and in the supporting affidavit: 12. I am the only employee in iAMS Field Computing section who had their status reclassified to "redeployed". 17. ...I was the only employee in the iAMS Field Computing section to be redeployed. 18. I am being victimised because I made a complaint about an unsafe workplace. The form of victimisation is my redeployment. Evidence supporting my claim is: a. I was the only employee in the iAMS Field Computing section to be redeployed. 34In her affidavit in reply, the appellant had complained (in paras [14] and [16]) that all of the work that was current and ongoing in the relevant section could, in the view of the respondent, only be performed by the two employees thus singling her out to be redeployed: [14]..Subsequent to my complaint about an unsafe workplace Energy Australia had determined that only Mr Newberry and Mr Kelly can "work with IT&T in improving operational support for the current user base". I am specifically excluded from that work and redeployed. [16]...Subsequent to my complaint, Energy Australia has determined that all the work that is current and ongoing can only be performed by Mr Newbery and Mr Kelly thus singly me out to be redeployed. 35The evidence mentioned was in terms substantially similar to the Commissioner's summary of the appellant's submissions at [91] and [92] in Lee (No 1) : 91 The respondent had failed to provide an explanation for why she had been specifically excluded from work she was previously involved in. She was the only employee to be redeployed, even though Mr Newbury and Mr Kelly were not providing the specific skills either. 92 Ms Lee believed there was work in field computing and submitted that she could not see why she could not be treated fairly and in the same way as the other team members in the iAMS Field Computing section. The respondent had failed to provide an explanation as to why, prior to her complaint about an unsafe workplace, she was involved in all aspects of field computing along with Mr Newbury and Mr Kelly but subsequent to her complaint, any remaining work could only be performed by Mr Newbury and Mr Kelly, thus singling her out to be redeployed. 36The Commissioner, nonetheless, concluded the correct question was not addressed by the appellant earlier than the oral submissions at [86]. 37The appellant submitted that the Full Bench's decision suggested that the evidence pertaining to the correct question had not been before the Commissioner (at [32] and [34]): 32 The appellant had submitted to Bishop C that the respondent had failed to provide an explanation for why the appellant had been specifically excluded from work she was previously doing. The Commissioner acknowledged this submission at [91] of her decision. 34 In our opinion, it is clear that the Commissioner focused on the question of whether, because of a decrease in the work, one of the employees had to leave the relevant section. However, as we have stated, what the Commissioner did not address was why it was the appellant. At its highest, the evidence of the respondent was that there was insufficient work for three persons. Although the appellant complained that she was singled out for redeployment, the Commissioner failed to consider in her conclusions, why the appellant was chosen for redeployment and not one of the other employees. We agree with the submission of Mr Trew that the Commissioner applied the wrong test, or misunderstood the test that should have been applied in its application to the evidence. That was an error of law and must result in the appeal being upheld. 38The Commissioner had asked the respondent's representative in the original proceedings before her whether some time was required before commencing the response to the appellant's submissions (following the appellant broaching the correct question) and that offer was declined. There was no suggestion that the respondent was taken by surprise or needed time to consider its position. This suggested that the relevant question had been raised by the appellant and the respondent had not addressed it.

Weight was given to an irrelevant matter 39Weight had been given to an irrelevant matter because the Commissioner gave weight, Lee (No 3) at [86], to the circumstance that the appellant did not raise the issue that she was singled out for redeployment with the witness responsible for that decision. The Commissioner observed that the appellant had the opportunity to do so. 40That conclusion ignores the effect of the reverse onus upon the respondent to rebut the presumption of victimisation relied upon by the appellant. It was entirely a matter for the respondent to give that explanation. By failing to do so, discrimination is presumed by s 210(2) of the Act to have occurred. By taking the matter into account, the Commissioner gave weight to an irrelevant matter. That matter was also not raised by or with the parties. It could have been corrected if that had occurred.

Submission on s 163 41The appellant contended that specific application of s 163 pointed against admitting the additional evidence on the current basis. There was no factual basis for the application. It was not the case that the discretion to admit evidence could be exercised in a vacuum. It was not sufficient as a submission to allow the evidence that the respondent would lose if the evidence was not admitted. That was not a basis for the proper exercise of the discretion.

Section 163(1)(a) 42It was submitted that the defendant could not rely on this provision to overcome a deficiency in the evidence.

Section 163(1)(b) 43There were four criticisms of the respondent invoking s 163(b) in order to contend there was sufficient evidence for the Commission to grant leave: 1)The decision in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 made clear that provision such s 163(1)(b) did not permit the Commission to decide an issue (including whether further evidence should be adduced) without any evidence at all. The Commissioner had done that in this case. As to a provision substantially similar to s 163(1)(b), Brennan J in Pochi (at 256) warned of the grave danger of injustice if the rules of evidence are set to one side and resort is had to methods of enquiry which necessarily advantage one party and disadvantage the opposing party. The effect of the Commissioner's decision has been to allow the respondent to start all over again after a full hearing on appeal. The respondent has not demonstrated any basis to commence again as though the earlier hearing had not occurred. 2)The Commissioner was influenced by her own incapacity to address the real legal question. The respondent did not make out its own case. The respondent was required to make out that case to get those orders. This was contrary to the Commission being an impartial tribunal and against procedural fairness. 3)The Commissioner's decision was based on her own misunderstanding as opposed to the respondent's submission. This advantaged the respondent to the disadvantage of the appellant. 4)The Commissioner was not permitted to make orders adducing new evidence without evidence supporting the proposition.

Section 163(1)(c) - equity and good conscience 44The appellant submitted that it was irreconcilable with equity and good conscience that the Commissioner made her orders without evidence. Equity and good conscience, without more, did not indicate why the respondent should be advantaged by its failure to adduce evidence and the appellant disadvantaged. 45The present proceedings were inter partes proceedings similar to those conducted in ordinary courts and that affected how equity and conscience were to be interpreted in this case. 46In cases like the present involving an issue concerning whether further evidence should now be adduced after a full hearing and appeal, the equity and good conscience test must be applied in such a way that justice is done between the contending parties. 47It was necessary in each case to identify precisely what the demands of equity and good conscience require to resolve the particular issue . HG Collet v Alsop (1982) 49 SAIR 309 provided a test of whether a decision is according to equity and conscience (at 328) by stating that the principle: ... is best applied by first asking what is the strict legal situation and secondly posing the subsequent question as to whether, on the totality of the evidence, an application of the concepts of equity, good conscience and the substantial merits of the case demand some variation of or departure from an application of strict legal principles. In some case equity will demand an adherence to the strict legal position established by the evidence. In other instances equity, good conscience and the substantial merits of the case will compel the Court to a different final conclusion. 48The requirement to act with equity and good conscience was not an outlet for avoiding procedural fairness. Section 163 generally had specific demands of justice. 49It did not allow a tribunal to ignore the limits of its jurisdiction. The Full Bench's remission of the proceedings following the earlier appeal did not put the parties in the same position that they were in before the earlier hearing began. The circumstances under which the earlier hearing had proceeded had to be taken into account and the circumstances affecting the appellant and the respondent must be weighed in determining what decision equity and good conscience require. 50It was necessary for the respondent to make out a case why it should have leave to adduce further evidence in proceedings remitted to the Commissioner. 51No evidence was provided with the submission that the earlier proceedings had proceeded on the basis of a different question, thereby requiring no evidence. 52The Commission had given undue weight to the fact that the proper question had not been addressed in order to allow in new evidence. 53The Commissioner had given weight to the fact that Ms Lee had not raised the issue as to why she was singled out for redeployment with Mr Locking as giving rise to adduce new evidence. However, because these were reverse onus proceedings she did not need to do so. 54The conclusion at [88] of Lee (No 3) that it was not possible on the state of the evidence to reach a conclusion was wrong. In truth, the only available assessment in the absence of an explanation by the respondent was that the presumption of victimisation was not rebutted.

Weight was given to a wrong principle or matter 55The Commissioner concluded at [88] of the decision in Lee (No 3) that it was not possible, on the state of the evidence admitted in the application before her, to reach a conclusion about why the appellant was chosen for redeployment rather than the other two employees. That was incorrect. In the absence of any explanation by the respondent explaining why the appellant rather than the other two employees was chosen for redeployment, s 210(2) requires victimisation to be presumed.

Summation 56It was for a party seeking relief (in this case seeking leave to adduce further evidence) to make out a case that enables the Commission to exercise its discretion in that party's favour. The respondent needed to establish a case for the exercise of the Commission's discretion. 57All these factors established a proper case to quash the Commissioner's exercise of discretion. It was also appropriate that the Full Bench exercise its own discretion in substitution for the Commissioner's exercise of discretion. 58It was appropriate that the Full Bench now determine whether on the evidence adduced before the Commissioner in the hearing during March 2010, the presumption in s 210(2) of the Act was rebutted. The earlier decision of the Full Bench remitting the proceedings to the Commissioner gave an opportunity to the respondent to make an application to adduce further evidence. That was an exceptional concession to the respondent: cf the decision of the Australian Industrial Court appealed from in General Motors Holden Pty Limited v Bowling (1976) 12 ALR 605. There, the respondent's failure to satisfy a similar reverse onus with that under consideration here resulted in a verdict against the respondent. The respondent here has now exhausted the benefit of its entitlement to seek leave to adduce further evidence. 59Subject to the foregoing, it is appropriate to direct that a Member of the Full Bench or some other Member of the Commission determine whether and, if so, what orders for relief should be made in the proceedings. In the circumstances that have occurred, orders remitting the proceedings should not remit it to the same Commissioner.

Leave to appeal 60The decision of the Commissioner was both interlocutory and one concerning a matter of practice and procedure. Leave to appeal should not be granted to bring such an appeal: Re the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 at 265-266, 269; Metrocall Inc v Electronic Tracking Systems Pty Limited (No 2) (2000) 102 IR 309 at [21] and Crewdson v NSW Department of Community Services [2003] NSWIRComm 417; (2003) 131 IR 217 at [13] - [19]. 61Further, the Commissioner had not yet decided the matter which was remitted to her. The evidence of Mr Locking was yet to be tested. The Commissioner had not considered the evidence of the appellant on any remedy that might be ordered if the Commission decided in her favour. It was, therefore, not known what impact, if any, the decision to grant leave to the respondent would have in the Commission's overall decision. Accordingly, it could not be said that, uncorrected, there was likely to be a mistrial leading to a further appeal. The appellant was not prohibited from challenging the admission of evidence in any subsequent appeal in the proceedings: Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478 at [4] to [6]; Ng v North Coast Area Health Service & Anor [2008] NSWIRComm 91 at [33]; and Crewdson at [17] (per Walton J Vice-President). Any appeal at this point was, therefore, premature. 62By seeking to challenge the decision, the appellant was contributing to the prejudice she said she had suffered by reason of the Commissioner's decision. 63The appellant should await the final result of the trial before the Commission ( Crewdson at [23]) and leave to appeal should be refused. 64Leave to appeal on apprehended bias should not be granted. The relevant test is whether a fair-minded, lay observer might reasonably apprehend the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide. None of the impugned conduct went near the kind that could give rise to the apprehension of bias in a reasonable, lay observer. 65On the first cause of conduct concerning orders made without consulting the appellant, there was no denial of procedural fairness. The order simply extended time for compliance with the orders previously made and it actually saved costs. 66As to the second course of conduct, the Commissioner proposed to grant leave to both parties to adduce evidence without the need to hear from them, not just the respondent. Ultimately, the Commissioner had heard both parties and reserved her judgment. 67The Commissioner was impartial.

No evidence before the Commissioner 68The challenge to the decision was subject to the principles established in House v King (1936) 55 CLR 499. It was not enough that the Full Bench would have adopted a different course. The appeal could be upheld only to correct an error in the exercise of a discretion ( House at 504-505). The appellant needed to demonstrate that the Commissioner acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistook the facts or failed to take into account some material consideration. 69A "wrong principle", for the purposes of House v King , referred to a binding rule rather than a guideline. A failure to apply a guideline did not of itself amount to error. An appellate court must be persuaded that the order stands outside the limits of a sound discretionary judgment before it intervenes ( Norbis v Norbis (1986) 161 CLR 513 at 519). 70The appellant's submission was effectively that it was not possible for the Commissioner to exercise her discretion without the respondent explaining why it did not adduce the evidence from Mr Locking in the first hearing. Mr J S Darams of counsel, who appeared for the respondent, submitted that that contention overlooked the express powers given to, and the obligations of, the Commission under the Act (see s 163 of the Act). 71There was no order in Lee (No 2) which restricted the Commissioner's power to receive the additional evidence from Mr Locking. The Full Bench had the power to do that (see s 192(1)(c) of the Act) . It did not do so. The Full Bench did not limit the Commissioner's powers on remitter in the context where it had considered the respondent's evidence in first hearing (at [34]). Whilst the order for remitter was not an order for a new trial, nothing precluded the tribunal receiving additional evidence on the remitted hearing: Murphy v Overton at [75] to [76].

Section 162 72The Commissioner could have received the evidence if she so desired regardless of whether the application was made. Ultimately, it does not need to be decided in this case because the application was made by the respondent in any event.

Section 163 73In accordance with pt 5 of the Act, the Commission was not bound to act in any formal manner (s 163(1)(a)), was not bound by the rules of evidence and could inform itself on any matter in any way that it considered just (s 163(1)(b)). The Commission was required to act according to equity, good conscience and the substantial merits of the case without regard to the technicalities or legal form (s 163(1)(c)). The Commissioner referred to and properly understood and applied her powers. Similar powers to s 163 resided with Fair Work Australia. Buchanan J, sitting in a Full Court of the Federal Court of Australia in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78, observed (at [25]) that it was not "inappropriate to say that the members of FWA have a statutory mandate to get to the heart of matters as directly and effectively as possible". That observation could be applied equally to the Commission and its Members. 74The respondent relied upon the submissions of Mr Dudley for the respondent in the remitted hearing as establishing a sufficient basis for the Commission to exercise her discretion to admit the fresh evidence: AB 106 (8-25) ...So it is within the discretion, we say of this Commission as presently constituted to admit further evidence. And we say it is within the discretion of this commission as presently constituted to admit further evidence as to the question of liability. There are two questions, Commissioner. One is liability, one is remedy. We say that the Full Bench identified a particular error with the way in which the question of liability was decided by you. We say that that particular error was that you didn't consider why it was the applicant was chosen. Commissioner: Yes, I focussed narrowly on the fact that she was redeployed because she made the complaint. I answered that no, she was redeployed because she made the complaint, then didn't go on to, well, why was she. It didn't occur to me that that was the issue before me. ... AB 133 (35-10) The company brought the evidence that it thought that it needed to bring, that's been made clear. It defended its position in the appeal and understandably so, it had been successful at first instance. It though it had, as I say, done the job. Now, why is there no evidence? Well as I say, once the appeal decision came down in November, it became apparent that the Full Bench said, well, that evidence was not good enough. Now, again, hardly surprising that Energy Australia would say, okay, if that evidence is not good enough, well, we should be permitted to address the question that the Full Bench said should have been addressed. If Commissioner Bishop didn't consider the correct issue and we brought evidence that Commissioner Bishop accepted at first instance, well, okay, the Full Bench has now said we were incorrect in that. it should now be permitted to bring that evidence for those reasons.

Section 163(b) 75It was the case that the Commissioner could have had regard to her own understanding of the actual matter herself because she had participated and understood the matters traversed in the first trial. 76In coming to her decision, it is clear the Commissioner had regard to ss 162 and 163 of the Act, and the transcript of the original proceedings gave the context of the decision made. 77As a matter of law, the Commissioner could have properly reached a decision to allow the further evidence solely upon the basis that if she did not do so the respondent would not have rebutted the presumption. 78The Commissioner conducted the hearing in Lee (No 1) and was, therefore, well aware of what occurred on that occasion. This enabled the Commissioner, in conformity with s 163 of the Act, to accept the respondent's explanation as to why it did not adduce the further evidence in Lee (No 1) at [49] to [50], without the need for an affidavit setting that out. 79The Commissioner's decision to allow the additional evidence could also be explained by the way the issue for determination at the first hearing was articulated by the appellant. Whilst it was accepted that the appellant alleged that she was the only employee to have been "redeployed", which she repeated in her evidence, a fair reading of the appellant's application for relief from victimisation, and her evidence, showed that it was the act of redeployment which she had complained about. Paragraph 12 of the appellant's application included the following: The reclassification of the [Appellant's] status to that of "redeployment" and the transfer of her employment to a position ... were events subsequent to and as a consequence of the [Appellant] making the complaints about an unsafe workplace ... and were acts by the Respondent that constitute victimisation in breach of section 210(1)(j)... 80The respondent's evidence at the first hearing was directed to the issue of why the applicant was redeployed. It was not directed to the more specific question of why the appellant was chosen for redeployment over Mr Newbery and Mr Kelly. It was not until closing submissions that the appellant cast her case in that particular way. The Commissioner's findings in para [86] of Lee (No 3) were, therefore, accurate. 81The Commissioner understood why the evidence was not called. She was, therefore, entitled to accept the respondent's explanation. 82In this light, the failure of the respondent to adduce evidence as to why it did not lead evidence in the original proceedings was not fatal to the respondent's application to lead fresh evidence. Implicit in the Commissioner's decision was that she was satisfied that the failure to lead the evidence at the first hearing was not a deliberate decision by the respondent: McCarthy v McIntyre [2000] FCA 1250 at [30]. 83There was no deliberate decision by the respondent not to call Mr Locking in Lee (No 1) . He was called and gave evidence. His evidence, however, was directed to the issue which the respondent, understandably in light of the way in which the appellant framed her complaint, understood to be the salient issue for determination. It may still be appropriate to grant leave to adduce additional evidence in circumstances where a tactical decision not to call the evidence was based on a mistaken apprehension of the law or the facts of the case: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478.

Failure to give reasons as to why submission rejected 84The Commissioner did not specifically state why she rejected the appellant's submission. However, it was not, and could not, be said that the Commissioner did not have regard to those submissions. 85The obligation to give reasons was a normal but not universal incident of the judicial process: Public Service Board of NSW v Osmond (1986) 159 CLR 656; Soulemezis at 278D per McHugh JA. However, neither the need nor the appearance of justice requires that reasons be given for every decision made by a tribunal: Soulemezis at (at 279) per McHugh JA. 86Decisions on interlocutory matters in certain circumstances could not reasonably be held to require reasons. It was not necessary for a judge who was exercising a discretionary judgment to detail each factor which they had found to be relevant or irrelevant or to itemise each of the matters to which they had had regard: Housing Commission of NSW v Tatmar Pastoral Company [1983] 3 NSWLR 378 at 386 per Mahoney JA (a decision affirmed on appeal to the Privy Council Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales ((1984) 54 ALR 155 per Lords Diplock, Bridge of Harwick, Brightman and Templeman; and Sir Denys Buckley). 87The extent to which reasons were required depended on the nature of the case. It was not always necessary to provide a detailed and exhaustive analysis of each and every matter raised in a proceeding. Nor did a judicial officer have to expose every step in his or her chain of reasoning. The obligation was to give reasons adequate enough to enable the parties to identify the basis of the decision and the extent to which their arguments have been understood and accepted: Lord v Flight Centre Limited (No 2) [2006] NSWIRComm 282; (2006) 156 IR 420; Webb v Goulburn Masonic Village [2004] NSW IRComm 258; (2004) 136 IR 309); see also Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 459. 88The Commissioner's decision did reveal the basis upon which the parties' arguments were understood and accepted. In para [13] of the decision, the Commissioner referred to ss 162 and 163 of the Act and the power of the Commission to "inform itself in any way that it considered to be just". At paras [37] - [38], the Commissioner noted the appellant's submission regarding the lack of evidence (on the respondent's application) explaining why the additional evidence had not be adduced at the first hearing. The Commissioner then noted, at para [79], the focus of the Commission's consideration of the issue at the first hearing. Thereafter, the Commissioner, in paras [83] - [84], noted that there was evidence at the first hearing about why the appellant was redeployed, being the specific allegation at the first hearing. 89It was in that context in which the Commissioner's reasons in (paras [88] and [89]) should be understood. The appellant's submissions were rejected because the respondent was not required to adduce evidence on its application. The explanation given and the Commissioner's own knowledge were sufficient. The Commission understood why the evidence was not led at the first hearing.

The hardship and prejudice suffered by the appellant was not considered 90The Commissioner did consider the alleged hardship and prejudice suffered. The Commissioner specifically referred to having considered those submissions, which she noted at para [43] of her decision. 91It was not explicitly stated why the Commissioner rejected the appellant's submissions or, more accurately, why that alleged prejudice did not result in the Commissioner exercising her discretion in favour of the appellant. The decision as a whole revealed the basis for the exercise of discretion. The Commissioner's failure to explain why the appellant's submissions on her alleged prejudice were not accepted did not invalidate the Commissioner's decision. 92There were several matters of evidence and law which were yet to be tested and determined by the Commissioner. The evidence of the alleged prejudice suffered by the appellant which she relied upon was one of those matters. It could not be tested until this issue was resolved. 93The appellant's conduct in seeking leave to appeal the Commissioner's interlocutory decision had delayed the second hearing. Accordingly, the alleged hardship which the appellant had and would suffer, both in terms of legal costs incurred and the timely disposition of the matter, must be seen in that light. 94The additional evidence from Mr Locking was not likely to lead to excessive delay at the first instance hearing.

Error of fact and weight to an irrelevant matter 95The observations of the Commissioner at para [86] of her decision were a fair assessment of the manner in which the hearing in Lee (No 1) was conducted. The focus and totality of the evidence was on whether the appellant was redeployed because she had made a relevant complaint. That was the issue which the Commissioner understood she was being asked to decide at the first hearing. 96The Commissioner's observation at para [86] was in the context of her consideration of whether it would be appropriate to exercise her discretion to allow the respondent to adduce evidence on that question. It was a relevant matter for her to consider. There was no error committed in doing so.

Relief 97The application for leave to appeal should be dismissed. 98If the Full Bench granted leave to appeal and upheld the appeal, the appropriate order in the circumstances is a direction to the Commissioner not to take into account in her deliberations the challenged evidence of Mr Locking. It should not make the order sought by the appellant. 99The respondent submitted that the relief which the appellant sought in her submissions would effectively operate to re-open the appeal in Lee (No 2) . The Commissioner had not, by virtue of this application, had the opportunity to hear and decide the matter remitted to her by the Full Bench in Lee (No 2) . The Commissioner has not heard the additional evidence which the appellant has adduced before the Commissioner. That evidence had not been tested. That process should be allowed to be completed. The Commissioner should be allowed to fully determine the matter which was remitted. There was no basis for the appellant's submission that it was "not appropriate" to remit the proceedings to the Commissioner if error was found. The appellant did not identify any basis why it would not be appropriate.

Leave to appeal 100The Commission has consistently depreciated interlocutory appeals, particularly those relating to practice and procedure: Metrocall at [21]; Crewdson at [14] and Bell v Macquarie Bank Ltd (No 4) (1999) 93 IR 191 at 198. 101However, there are exceptions to this approach. One such example is where the interlocutory procedural issue, the subject of an appeal, has the effect of finally determining a matter or conclusively altering substantive rights: Crewdson at [19], or where an interlocutory appeal stands well above an ordinary appeal as to practice and procedure: Bell at 198. 102This is a case where the ordinary principles should not apply. True it is, this matter only concerned a procedural question involving the admission of evidence. However, there can be no doubt that the determination of that issue had the potential to resolve the question of the liability in the proceedings having regard to our findings in Lee (No 2) . The refusal to admit the further evidence sought to be led by the respondent (as to why the appellant was selected rather than her co-workers) may well be determinative of the question of liability in the proceedings because the presumption under s 210(2) may not been rebutted (although issues of remedy would, no doubt, remain). 103Those factors would of themselves warrant the grant of leave, unless there was some aspect of the appeal, per se , which would otherwise warrant the refusal of leave. However, we consider that this is not such a case. We consider that the appellant has made good the grounds of appeal as to the deficiency of reasons and errors of fact. We consider, therefore, that leave should be granted in the proper administration of justice.

Merits of the appeal 104It is useful to return briefly to the decision in Lee (No 2) . That decision considered the operation of s 210 of the Act. The Full Bench allowed the appeal against the dismissal of the first instance proceedings because the Commissioner had erred in concluding that the respondent had discharged the reverse onus of proof imposed upon it by s 210(2). The Full Bench held that the evidence led in the proceedings in Lee (No 1) rose no higher than that there was work for two people only in the relevant section and not work for three. The Commissioner had failed to address why it was that the appellant was redeployed and not one of the two other employees. It was necessary to resolve that question in order to determine that the reverse onus had been discharged having regard to the complaint made by the appellant. (This was the issue which was not addressed in the original proceedings and shall hereafter be described as "the subject issue".) Hence, the evidence sought to be led by the respondent in the remittal proceedings was directed to overcoming the deficiency in the respondent's case found by the Full Bench in Lee (No 2) . 105The relevant passages from the Full Bench judgment in Lee (No 2) , in this respect, are as follows: 21 The principal issue in the appeal is whether the Commissioner erred in finding that the respondent discharged the onus of proof as required by s 210(2) of the Act. In the present matter, this provision operated in a context where it was contended that the employee was victimised because she made a complaint about a workplace matter that she considered was not safe or a risk to health. The Commissioner found (at [35]) that there was no doubt, and it was not contested, that the appellant made a specific complaint of an "unsafe workplace" in relation to the particular comment made to her by Mr Newbery on 17 April 2008. It was acknowledged by the parties that the complaint, so made, fell within the matters contemplated by s 210(1)(j) and potentially thereby enlivened s 213 of the Act. 24 The reverse onus provision, in our opinion, required that the respondent demonstrate that the safety issue which led to the complaint was not an actuating reason for the appellant's redeployment. The employee had the benefit of the assumption that she had been redeployed because she made the complaint and therefore the onus is on the employer to establish that that was not the reason. To merely establish on the evidence that it was necessary to redeploy one employee leaves open the possibility that this employee was chosen for the reason of her complaint, particularly when that complaint was made at a time coincident with the transfer. Further, the evidence was that many months later at the hearing, two persons were still working in the section. 27 It follows, in our opinion, that if the appellant was redeployed for the reasons found in s 210(1)(j), the onus found in s 210(2) is enlivened and could not be discharged in the absence of evidence reasonably excluding the possibility that the appellant was redeployed because she made a complaint. 31 This evidence, in our opinion, rises no higher than that there was work for two people only in the relevant section and not work for three. 34 In our opinion, it is clear that the Commissioner focused on the question of whether, because of a decrease in the work, one of the employees had to leave the relevant section. However, as we have stated, what the Commissioner did not address was why it was the appellant. At its highest, the evidence of the respondent was that there was insufficient work for three persons. Although the appellant complained that she was singled out for redeployment, the Commissioner failed to consider in her conclusions, why the appellant was chosen for redeployment and not one of the other employees. We agree with the submission of Mr Trew that the Commissioner applied the wrong test, or misunderstood the test that should have been applied in its application to the evidence. That was an error of law and must result in the appeal being upheld. 106The Full Bench remitted proceedings with the order that: (iii) The proceedings in Matter No IRC 1371 of 2009 are remitted to Commissioner Bishop to be dealt with in accordance with this decision. 107The logical starting point for the resolution of the merits of this appeal is a consideration of the nature and effect of the order of remittal made by this Commission in Lee (No 2). 108Both parties relied upon the judgment in Murphy in order to debate the limits of the Commissioner's discretion to admit the further evidence of Mr Lockey in the remitted proceedings. That authority is clearly applicable but it is also necessary to consider the judgment of the New South Wales Court of Appeal in Walker Corporation . 109Walker Corporation concerned an appeal on the question of law from orders made by the Land and Environment Court. Basten JA wrote the primary judgment of the Court. Young JA agreed with some supplementary observations, and Beazley J agreed with the judgment of Basten JA and the additional comments of Young JA. 110The history of the proceedings are somewhat complicated (there was also an appeal at one stage to the High Court of Australia). It is sufficient, for present purposes, to note that one part of the appeal concerned orders made by the Court of Appeal remitting proceedings to the Land and Environment Court under s 57(2) of the Land and Environment Court Act 1979. Those provisions empowered the Supreme Court, on the hearing of an appeal, to "remit the matter to the court for determination by the court in accordance with the decision of the Supreme Court" (s 57(2)(a)). The question arising before the Court of Appeal was whether the Land and Environment Court had erred in the remitter proceedings, in deciding that the appellant required leave to adduce further evidence in relation to matters in which there were no findings of fact made by the Land and Environment Court in earlier proceedings and, on the assumption that the question of further evidence lay within the discretion of the trial judge, whether the Land and Environment Court erred in refusing to grant leave to the appellant to adduce evidence from three experts (as further evidence in the proceedings). The Court of Appeal found that the resolution of both of those questions depended upon an understanding of the powers of the court on remittal. 111Basten JA found the drafting of s 57(2) was "by no means pellucid" and that, in the case where an appeal is allowed, "it would be necessary to set aside the order of the Land and Environment Court in order to provide a basis for further consideration. Such power must be implicit in s 57(2)(a)". 112After discussing the court's powers under s 57(2)(b) whereby the Supreme Court was empowered to "make such other order in relation to the appeal as it seems fit", Basten JA made the following broad observation in relation to remittals (at [33]): It is commonplace for orders of remittal to be made without indication to the court below as to how it should proceed to determine a matter, otherwise than "according to law", a phrase which undoubtedly includes the conclusions of the appellate court as to the applicable law ... 113After a consideration of remitter proceedings where a "re-hearing" may be ordered, his Honour then proceeded to consider a judgment of the Full Court of the Federal Court ( Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; 82 FCR 374) which had considered the validity of a remittal hearing where the primary judge (sitting as the AAT) considered himself bound to re-hear the whole case afresh. Basten JA reviewed the decision in Morales as follows (at [36]): Morales concerned an application for an entry visa which had been refused by the Minister on the ground that the applicant would incite discord in a segment of the Australian community, being a ground of refusal under s 501(1) of the Migration Act . A member of the AAT affirmed the decision on that basis, but found that there was insufficient evidence to satisfy an alternative basis of refusal under s 501(2). Before a single judge, Sackville J, the Minister conceded that the AAT had erred in law. The only question was the form of the order to be made, namely a remitter for the matter to be determined in accordance with law or a remitter with a direction that s 501 did not apply. Sackville J made the more limited order (without a direction). When the matter was reheard by Purvis J in the AAT, his Honour felt compelled to permit the Minister to call further evidence in relation to the alternative ground. The refusal of the visa was upheld by the AAT on that ground. The Full Court held (at 389-390): "The order of Sackville J left to the discretion of the AAT the question whether it should allow a 'rehearing', and to what extent. It did not compel a rehearing. ... In the present case, we think it was open to Purvis J, having considered all the relevant circumstances, to regard the previous decision of [the AAT] as determinative of the s 501(2) issue and to decide that this issue should not be reopened. Of course, his Honour might have concluded that this course was not appropriate in the circumstances; but it was a matter of discretion and his Honour's reasons lead us to conclude that he did not see himself as having such discretion. In this respect there was an error of law." 114As to an appeal by way of re-hearing, his Honour considered, in this light (at [37]): On an appeal by way of rehearing, which may include review of factual findings, the appellate court may have power to remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the court thinks fit: see, eg, Federal Court of Australia Act 1976 (Cth), s 28(1)(c). Alternatively, there may be a power to order a new trial or a retrial, though little seems to turn on the precise language used in respect of the scope of the power ... 115His Honour then made some observations more generally related to remitter proceedings, as follows (at [38]): Furthermore, in considering both the intended scope of a remitter and the appropriate scope of the hearing following remitter, a material consideration will often be the nature of the matter in dispute. Thus, a different approach may be taken in respect of a claim which is to be determined in accordance with the facts as they exist at the time of the remitted decision, as compared with a claim which involved the assessment of facts at a fixed time in the past. The present case falls into the latter category. 116After noting in many cases there will be merit in leaving to the discretion of the trial court decisions as to the scope of any hearings (at [39]), his Honour noted (at [48]): The Foreshore Authority submitted that it was fundamental that a party on the further hearing of a remitted matter should not be permitted to reagitate findings which had been the basis of the earlier appeal. Some support for that principle may be obtained by analogy from circumstances where a party has both lodged an "all grounds" appeal against the decision of a lower court and has proceeded by way of judicial review. Because success on the appeal would remove the basis of the judicial review proceeding, the moving party will be required to elect as to which course it wishes to pursue ... 117His Honour then turned to the challenge to the Land and Environment Court's decision to refuse to admit certain valuation evidence. The first challenge from the appellant in that respect was put on the basis that the appellant had a right to call such evidence. His Honour found (at [74]) the proposition that "the trial judge has no power to refuse to hear evidence proffered by a party should be treated with some caution", and stated that "In any event, the limitations which must be applied to such a proposition require its rejection in that form". His Honour noted three limitations. The first related to the specific statutory powers applicable to the exercise of the Land and Environment Court's jurisdiction. His Honour here referred to the Land and Environment Court Act 1979 which, inter alia , provided that the proceedings were to be conducted with "as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit", and the court was "not bound by the rules of evidence". The second limitation is presently immaterial. The third was that (at [77]): ... the L&E Court is required, in accordance with Sch 1 to the Civil Procedure Act , to give effect to the overriding purpose of the Act and the rules, namely "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 56. The obligation of the Court is to manage proceedings so as to give effect to the objects identified: ss 57 and 58. 118With respect to the third limitation, his Honour made the following additional observations in relation to the Civil Procedure Act 2005 (at [78]): In a particular case, an issue may arise as to the interaction of the obligations imposed by the Civil Procedure Act and the powers conferred under the LEC Act; no such issue arises for present purposes. What is apparent from the statement of the legislative provisions set out above is that no party has an unqualified right to conduct civil proceedings, including the calling of witnesses, as that party wishes. To say that the powers of the Court to control its process are qualified is not to identify limits beyond which the parties have unqualified rights. The proposed corollary would have the effect of conferring on this Court the power to override any judgment of the trial judge where some hypothetical qualification on power was established as a fact. That would be an incorrect approach. 119His Honour then turned to the second question raised by the appellant which was that the Land and Environment Court had erred in refusing leave to call the subject evidence "on the assumption that leave was required". His Honour then proceeded to consider the contentions as to errors in the exercise of discretion and, in doing so, considered whether it was appropriate in the remitter proceedings to use, by way of analogy, the notion of "re-opening" in order to assess whether leave should be given to call the subject evidence. His Honour's conclusions, in that respect, were as follows (at [80] to [84], but omitting the extract from Murphy which is earlier set out in this decision): 80 To this end, the appellant relies upon two principal errors. First, it was contended that his Honour fell into error in treating the application to call further evidence as analogous to an application by the appellant to "reopen" its case after judgment. Secondly, his Honour, as the new trial judge, had not had the benefit of hearing the oral evidence from the various experts and, further, one of Walker Corporation's experts had since died and the other was unavailable. (b) The "reopening analogy" 81 In respect of the first contention, it will be necessary to consider shortly the manner in which his Honour did adopt such an analogy, but it is helpful to consider why the analogy is said to be wrong, as a matter of principle. Once the judgment of the trial court has been set aside there are extant proceedings which have yet to be finally determined. Superficially, they are proceedings in which both parties have closed their cases, but further steps may be required before the case is reserved for judgment. In such a case, the moving party may have presented evidence on three different bases, but succeeded on one which is later found not to have been open, as a matter of law. What should happen next may depend upon whether the matter can be remitted to the judge who first considered it. 82 In other circumstances, the moving party may have succeeded on the sole basis upon which he or she presented a claim and may now wish to proceed on another basis. Whether that should be permitted will probably not depend to any great extent on whether the matter goes back to the earlier trial judge, or to a new judge. 83 It is readily apparent that a range of different issues are raised by these hypothetical cases: the range of issues could readily be multiplied by more specific examples. In each case, the term "reopening" may be apt to identify the kind of application in question, but the outcome must depend upon the nature and circumstances of the particular application. That being said, the language of "reopening" is widely used. Thus, in Murphy v Overton Investments Pty Ltd [2004] HCA 3; 216 CLR 388 at 416, the High Court made the following comments in respect of proceedings under the Trade Practices Act 1974 (Cth): ... 84 The words quoted at the end of [76] referred to the Federal Court Act , s 22 and thus emphasised the power of the trial court to resolve such questions in accordance with its statutory remit. 120His Honour continued consideration of the notion of a re-opening in an evaluation of the actual discretion undertaken by the Land and Environment Court to allow the further evidence, as follows (at [89] to [92]): 89 Thirdly, his Honour saw merit in approaching the circumstances of the remitter on a principled basis. In that context, he referred to the principles discussed in his own earlier decision in Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79 at [11]-[17]. He was later to say that even if the Mosca general guidelines are put to one side, he would decline to permit reliance on additional evidence: at [28]. That approach recognised in Mosca a further confinement of the correct approach, but one which was not applied in the circumstances of the case. Accordingly, no detailed consideration of the principles identified in Mosca is required. 90 Nevertheless, because they were the subject of criticism on the part of Walker Corporation, it is appropriate that those criticisms should be acknowledged. In Mosca at [12], his Honour made the following statement, apparently in respect of a remittal where no "rehearing" had been prescribed: "The considerations relevant to the exercise of the discretion are, in my view, normally similar to those which are to be taken into account when a party applies to re-open a case and adduce further evidence after judgment has been delivered. Such leave to re-open should only be granted 'in very limited circumstances': ... De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 ...." 91 His Honour gave some further content to such circumstances at [13]: "In circumstances where leave is sought to re-open the proceedings following delivery of judgment, the appeal rules relating to fresh evidence, whilst not determinative, provide a 'useful guide' as to the manner in which the discretion should be exercised: Smith v NSW Bar Association (1992) 176 CLR 256 at 266-7 ...." 92 It is sufficient for present purposes to say that the aptness of the analogy is by no means self-evident, in two respects. First, once the initial judgment has been set aside as erroneous, the more obvious analogy is with reopening prior to delivery of judgment. Alternatively, that may be seen as the appropriate analogy in so far as the proposed further evidence relates to matters which have not been properly decided, as opposed to those findings which are apparently unaffected by the appellate reversal. Secondly, the circumstances of remittal may involve a degree of complexity not found in an application to reopen a trial. The danger of relying upon analogy is that it will distract attention from the specific circumstances of the particular case. Appropriate guidelines promote uniformity of approach and are desirable; guidelines adopted by analogy may be helpful in some situations, but not in others. 121Young JA, in Walker Corporation , made some particular observations about the nature of an order of remitter under s 57(2)(a) of the Land and Environment Court Act 1979 as follows (at [115] to [118]): 115 When an order under s 57(2)(a) is made to remit the matter to the Land and Environment Court, that Court then needs to reconsider the whole case aided by the decision of this Court on the points of law considered by this Court. 116 The Land and Environment Court may not merely say, "The Supreme Court have told me I'm wrong in finding for the defendant, so I find for the plaintiff" to paraphrase what a magistrate was found to have done, wrongly, in In re Grover (1886) 3 WN (NSW) 52. 117 In particular I endorse what Basten JA has said that the approach of the Land and Environment Court on remitter will be different depending on the circumstances of each case. That Court needs to consider how in the changed atmosphere it should proceed to reach a just result. 118 In my view, when so proceeding the Land and Environment Court does not proceed according to the strict guidelines dealing with reopening cases after judgment. It exercises a broad discretion as to how the matter is to be concluded in a fair and just way. Probably no better guidelines can be laid down than those uttered by Biscoe J in the present case at [24]: "... the undisturbed findings stand and all that seems to be called for is a determination of the outstanding issues on the existing evidence in accordance with law - subject to the admission of any further evidence and any leave to amend, which lie in my discretion ... ." 122Young JA also made some observations, in a different context to the one presently being considered, as to whether the Supreme Court had a power to remit a matter to a different judge and, if so, what principles were properly to be applied in that respect. His Honour relevantly stated (at [119] to [120]): 119 The Court certainly has power to remit a matter to a different judge. My researches have not discovered any overriding principle as to when it does so, but there are guidelines in the authorities. The key question is whether there will be a perception of a fair trial if the case is remitted to the judicial officer who previously heard it. 120 As Kirby J said in Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 at 556, a direction to remit to a fresh person: " ... is not uncommon in the exercise of appellate or judicial review jurisdiction where a conclusion is reached that a rehearing by the same decision-maker would be unlawful (where the decision is set aside for reasons of actual or apparent bias) or otherwise undesirable (in the interests of justice)." 123His Honour's discussion of guidelines is obviously applicable to a determination of the Court of Appeal remitting a matter to a trial court. Nonetheless, some of those observations are presently relevant (at [121]): The guidelines include the following: ... (4) It must always be borne in mind just what is the extent of the power of the appellate court to order remitter: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 at 87 per Basten JA and see Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482, 494. ... (6) If there has been stringent criticism of the judge or tribunal member in the appeal court, the appearance of justice might recommend that the matter be remitted to a fresh mind: Brackenreg v Comcare Australia (1995) 56 FCR 335 at 352 per Sheppard J. 124Having regard to those authorities, we have reached the following conclusions as to the remittal to Bishop C in Lee (No 2) and the requirements then reposing in the Commissioner as to the application to admit fresh evidence. 125When leave to appeal is granted under s 188 of the Act, the powers of the Full Bench on appeal, are specified in s 192, as follows: 192 Powers on appeal (1) On an appeal under this Part to a Full Bench of the Commission, the Full Bench may (in accordance with this Act): (a) confirm, quash or vary the decision of the Commission concerned, or (b) direct a member of the Commission to take further action under this Act to carry its decision on the appeal into effect, or (c) refer the matter back to the member of the Commission, with such directions or recommendations as the Full Bench considers appropriate. 126Whilst s 192(1) does not refer to a re-trial or remittal, per se , in our view, such a power must be implicit under s 192(1)(c) (and possibly s 192(1)(b)). If the power to remit is available to an appellate court which conducts an appeal by way of re-hearing which may review findings of fact: Walker Corporation (at [37]). It is unnecessary to consider the question of power further, as no issue in that respect was raised during the course of the proceedings in Lee (No 2) or these proceedings. 127The order for a remittal in Lee (No 2) did not, by its terms, constitute an order for a trial or re-trial (see Murphy at [75]). So much may be garnered from the form of the order which uses the words "in accordance with this decision" which, when taken with other commonplace terminology, such as "according to law", should not be construed as constituting a legal basis for a party to the remitted proceedings being entitled to tender such admissible evidence as it considered fit. 128It follows that a party seeking leave to call fresh evidence in the remitted proceedings must make an application to do so. The order of remitter, per se, does not bring with it a view by the appellate tribunal whether leave should or should not be granted upon the making of such an application. We consider that the application so made is an application for leave to adduce further evidence. 129That conclusion should not be taken, however, as an acceptance of the submission advanced by Mr Trew QC that the Commissioner was required to determine whether the respondent would or would not be committed to re-open its case. As Basten JA pointed out in Walker Corporation , that approach may "distract attention from the specific circumstances of the particular case" (at [92]). We consider Mr Trew's submissions to effectively contend for the establishment of a criteria equivalent to the re-opening of a case after judgment. We consider that approach to be productive of error (see Young JA in Walker Corporation (at [118]). As Young JA pointed out in Walker Corporation , what needs to be considered is "how in the changed atmosphere it should proceed to reach a just result" and, in doing so, the Commission would exercise a broad discretion as to "how the matter is to be concluded in a fair and just way". 130Even though the proceedings were fundamentally industrial in character, thus bringing with them some measure of informality (getting to the gist of the issues as described in Coal & Allied Mining Services Pty Ltd v Lawler at [25]), the proceedings were inter parte and affected significant individual rights. There was required a sufficient level of formality of process to reflect the subject matter of the proceedings. The proceedings were brought under s 210. That section concerned some fundamental protections afforded persons who seek to exercise certain rights and, hence, they are essential to the proper administration of the Act. 131What the Commissioner was required to consider was whether the respondent had made out a case for the grant of leave to adduce the further evidence (in the remitter proceedings), having regard to the then applicable circumstances of the case, in a way that was just and fair in all the circumstances. Particular to those considerations was whether the respondent had advanced and established the grounds for the admission of the evidence, having regard as well to the case in opposition advanced by the appellant. 132This brings us to the particular challenges to the decision of Bishop C in the remitter proceedings. 133It was critical to the appellant's contention at first instance that the respondent had not established a sufficiently cogent basis or explanation, supported by relevant evidence (as to the grounds for that application), to warrant the re-opening of the proceedings. That central thesis of the appellant's case was not, however, sufficiently addressed or resolved in the reasons for decision of Bishop C. 134As McColl J stated in Ainger v Coffs Harbour City Council [2005] NSWCA 424 (at [48] ): 48 The primary judge was not obliged to spell out every detail of his process of reasoning ( Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 171, 182), however he was obliged to expose his reasons for resolving a point critical to the contest between the parties: North Sydney Council v Lygon (1995) 87 LGERA 435 at 442 per Kirby ACJ; Soulemezis at 270 per Mahoney JA, at 280 per McHugh JA. This obligation lay upon him to enable the parties to identify the basis of his decision and the extent to which their arguments had been understood and accepted: Soulemezis at 279 per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 at [129] it was necessary that the primary judge " 'enter into' the issues canvassed and explain why one case was preferred over another". (See, to similar effect, Webb at [33] to [39] and WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Limited (No 2) [2001] NSWIRComm 319; (2001) 110 IR 447 at [23] to [27]). 135The Commissioner reasoned that the applicable legal principles stated by the Full Bench in Lee (No 2) had not been comprehended by the respondent (or the Commission) (notwithstanding an acknowledgement that the appellant had raised the relevant test in her final submissions). She concluded that, in the absence of a determination of the merits of the appellant's application by the Full Bench, the respondent should be permitted to call further evidence so that the matter would not be determined by "default". 136Not only did this not address the seminal issues raised by the appellant, the reasons misunderstood what was fundamentally required to be considered in the remitter proceedings vis vis the receipt of evidence. 137The assessment of the adequacy of reasons does require an examination of the whole of the decision below, and not just the seminal areas of judgment (often appearing in the conclusion of the decision) attacked on appeal. However, in this case, despite an extensive setting out of the issues in the proceedings and the submissions of the parties by the Commissioner, there was no form of reconciliation of the competing arguments or reasons given for the resolution of the ultimate question raised for adjudication. The Commissioner's attention seems, rather, to have been focussed upon her prior error, as found in Lee (No 2) . Erroneously, the Commissioner seems to have been influenced by the notion that the Full Bench decision required the admission of evidence so as to avoid the decision in Lee No 2 reaching a result by 'default'. 138The appellant also contended that there was an error of fact below in that the Commissioner reasoned that the first time the appellant had raised the subject issue, "why in particular Ms Lee was chosen for redeployment rather than Mr Kelly or Mr Newbery" was during her final oral submissions. 139The Commissioner reasoned that the oral submissions of the appellant constituted "the first time that the issue was articulated in those terms". She also stated that "that issue was not the focus of the totality of the evidence in the light of the very specific allegations she had made" and that the appellant did not raise the issue in cross-examination. 140This was the extent of the Commission's analysis of the competing submissions of the positions as to the receipt of further evidence as to the subject issue. 141The Commissioner was correct in concluding that the appellant raised the issue "in those terms" for the first time in her final submissions. However, the implication arising from the Commissioner's decision is that the appellant raised the subject issue at no earlier time in the proceedings. That was incorrect. In our view, the appellant did raise the issue in her application and her statement of evidence, even though the issue was not raised with the same clarity and definition identified in the final submission. 142Further, the Commissioner had regard to an irrelevant consideration by also having regard to whether "that issue" (being the subject issue) was the focus of "the totality of the evidence in the light of the very specific allegation [the appellant] had made" and that the appellant did not raise the issue with Mr Locking in cross-examination. It was for the respondent to call evidence to discharge the reverse onus in the proceedings and not for the appellant to raise that issue in evidence either in chief or in cross-examination. 143These conclusions demonstrate clear appealable error. However, the question remains as to whether orders upholding the appeal should be made, particularly if orders ultimately made at first instance were correct, even though for the wrong reason (or based upon a miscarriage of the proceedings): Australian Co-operative Foods Limited v S W & J D Reilly & Sons Pty Limited [2011] NSWCA 148 at [70] per Basten JA. This consideration connects neatly to the joint contention of the parties that the Full Bench should, for itself, in the disposition of the appeal, determine whether the evidence sought to be led by the respondent in the first instance proceedings should be admitted (in the event the appeal were to be upheld). 144We will commence this analysis by an examination of the bases advanced by the respondent for the receipt of the additional evidence. 145In these proceedings, the respondent essentially proffered three reasons for the admission of the evidence in question: 1.The remitter of the proceedings left open the question as to whether the subject evidence would be admitted or not. That fell within the discretion of the Commission, which was not bound to act in any formal matter (s 163(1)(a)), was not bound by the rules of evidence, could inform itself on any matter in any way that it considered just (s 163(1)(b)) and was to act according to equity, good conscience and the substantial merits of the case without regard to the technicalities or the legal form (s 163(1)(c)). 2.The admission of the subject evidence was justified having regard to the way in which the subject issue was articulated by the appellant at first instance. Even though the appellant specified that she would be the only employee to be redeployed in her application and evidence, a fair reading of her application in full and the evidence she gave demonstrated that it was the "act of redeployment which she had complained about". Thus, the proceedings at first instance were directed to the issue of why the applicant was redeployed and not the specific question as to why the appellant was chosen for redeployment over Mr Newbery and Mr Kelly. It is not entirely clear what submission the respondent advanced as to why it did not take the step to deal with the requisite issue after, as it conceded, the appellant raised the subject issue in final submissions . 3.This was not a case where there was a deliberate decision by the respondent not to call Mr Locking as to the subject issue. Mr Locking was called in any event and addressed his evidence as to the issue raised by the appellant. There was no tactical decision not to call the evidence to deal with the subject issue but, rather, a mistaken apprehension of the law or facts of the case. 4.The admission of the evidence would not substantially lengthen the proceedings. There is no issue of hardship warranting the refusal to admit the evidence. 146The submissions put on behalf of the respondent at first instance were of a different character. First, it was suggested that if the evidence were not to be admitted, then the respondent would be denied an opportunity to present its case because it would not have an opportunity to rebut the presumption. Secondly, the Full Bench could have excluded the subject evidence by determining the matter in the appeal proceedings but chose not to do so, despite an application by the respondent for the Full Bench to determine the application itself. If the Full Bench had intended to exclude the evidence it would have decided the matter for itself. Thirdly, the respondent thought it had brought enough evidence in the first instance proceedings to be successful, given its original understanding of those proceedings, and, should now be permitted to call further evidence because the Full Bench had decided a different basis upon which the matter should be determined as a matter of law. 147In our view, the submissions advanced by the respondent in the remitter proceedings in favour of the admission of evidence give no proper basis for the grant of that application. The submissions could only have the effect of drawing the Commissioner into error by contending that there was an implication in the Full Bench decision that the additional evidence would be permitted and that the respondent had an obligation only to offer little, if any, basis or explanation for the re-opening of the proceedings other than that fact. 148However, the submissions on appeal do raise some cogent considerations, such as, whether the conduct of the proceedings by the appellant at first instance may have explained or excused the deficiency in the evidentiary case of the respondent. That submission is buttressed by a contention that, in truth, the respondent sought no forensic or tactical advantage by failing to call that evidence (when it had produced Mr Locking for evidence in the proceedings). These submissions need to also be examined as a matter of merit and also in the light of the submissions by the appellant that there was no evidence to sustain them as facts that could be relied upon in an exercise of discretion by the Commission to admit the evidence as to the subject issue. 149These submissions have to be weighed against the conclusions earlier reached in this decision that the record of the original proceedings demonstrates that the subject issue was raised by the appellant in the original proceedings, albeit in not an entirely clear fashion at earlier stages of the proceedings prior to final submissions. Other considerations might also impact upon the adjudication of this matter, such as questions of hardship or prejudice, but the entirety of these matter are best considered after a review of the relevant law so far as it applies to the application to bring in fresh evidence in these proceedings. 150Section 163(1) of the Act provides as follows: 163 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 151Each of the paragraphs of s 163(1) are relevant in the exercise of a discretion to admit the further evidence as to the subject issue. 152As to s 163(1)(c) and the requirement for industrial tribunals to consider matters in proceedings brought under industrial legislation according to "equity, good conscience and the substantial merits of the case", we note that that expression has antecedents in the earliest forms of such legislation and has been the subject of consideration by courts and tribunals over a long period. 153In Re Long Service Leave (Engine Drivers Award) [1961] AILR Rep 308, Gallagher J stated : Statutory provisions requiring certain courts or tribunals to act in accordance with equity and good conscience have long been in existence. In England as far back as 1606 the Commissioners constituting Courts of Request or Courts of Conscience were given power to adjudicate between the parties 'as they shall find to stand with equity and good conscience.' ('An act for the recovering of small debts and for the relieving of poor debtors in London' - 3 James I.C. 15, section II). In New South Wales in 1842 by the Act, 6 Vict. No. 15, Courts of Request were empowered to hear and determine matters 'in a summary way and according to equity and good conscience' (10 A.L.J. 349), and upon the advent of compulsory arbitration, provisions of like nature were inserted both in the Industrial Arbitration Act 1901 (N.S.W.) and the Commonwealth Conciliation and Arbitration Act 1904. The Shorter Oxford English Dictionary defines 'equity' as meaning: 'The quality of being equal or fair; impartiality; evenhanded dealing; that which is fair and right.' "Conscience' is defined in the same dictionary as 'a faculty or principle which pronounces upon the moral quality of one's action or motives approving the right and condemning the wrong; conscientious observance.' The dictionary of English Law prepared under the general editorship of the late Earl Jowitt includes under the heading 'equity' (Vol. 1 p. 724), the following statement: 'In its primary sense equity is fairness or that rule of conduct which in the opinion of a person or class ought to be followed by all other persons. Taken broadly and philosophically, equity means to do to all men as we would they should do unto us - (to live honestly, not to hurt another, to give to each his due). ...Equity in the sense of fairness is frequently opposed to law and legality, because that which is fair does not always constitute a legal claim or defence.' The plain and ordinary meaning of the words 'substantial merits of the case' would appear to be 'real merits of the case'. (Shorter Oxford English Dictionary. The Dictionary of English Law.) The meaning of the 'equity and good conscience' provision as contained in the Industrial Arbitration Act 1901 (N.S.W.), arose for consideration in Colliery Employees' Federation v. Northern Colliery Proprietors' Association (1903 A.R. 182 at 185)... 154In the last mentioned decision in his Honour's judgment, Colliery Employees' Federation v. Northern Colliery Proprietors' Association [1904] AR (NSW) 182 at 185, Cohen J stated (at 185): In my opinion, apart from the question of estoppel, and without for one single moment suggesting that there was any intention on the part of either the applicants or the respondents in the application of May last, to say anything but what they believed to be true, or to suppress anything which they believed had existence, it seems to me that to set aside the resolution which is now questioned would be very unfair indeed, and against "equity and good conscience" - which, to my mind, has a much larger meaning than the somewhat narrow construction which Mr Campbell invites the Court to place upon these words, so as to limit the Court purely "equitable" doctrines, as administered in the Equity Court; but the words "equity and good conscience' leave this Court, in my opinion, in the position that, whilst not infringing any positive law of the country, it may do that which it believes to be right and fair and honest between man and man. 155In Walkley v. Dairyvale Co-operative Ltd (1972) 39 SAIR 330 at 357, Olsson J, after undertaking an exhaustive analysis of authorities bearing upon s 51 of the Industrial Code 1967(SA), found (at 357 to 358): In my view the fundamental concepts which emerge from the Industrial Code read in the light of the decided cases are as follows:- (1) ... (2) That is not to say that the tribunal may not or should not take established principles of law and equity into consideration (and, indeed, in appropriate circumstances even decide certain cases solely upon the footing thereof as being the most just approach) but it must, in the final analysis, test its conclusion solely in the light of the express statutory mandate. Cf. Irvine v. Shell Company of Australia Limited (1969) LXIX A R 187. (3) The wide discretionary power conferred is, in a sense, self limiting in terms of procedure. Whilst informal procedures and evidence may usually be adopted, nevertheless, everything done (or omitted) must stand the test of the established principles of natural justice. Examples of this aspect have been recited above and do not require repetition. But note Irwin v. South Brisbane Gas and Light Company Limited (1947) Q.J.P. 143 as to onus of proof in relation to money claims. (4) The very nature of the proceeding will have a direct bearing upon the exercise of discretion under the statute, both in procedural and substantive respects. Thus, for example, cases involving penal or quasi penal consequences may well be treated on a basis of evidence, standard of proof and principle substantially different from arbitral claims or non penal actions. (5) The tribunal is not empowered to disregard an absolute statutory directive which bears upon the subject matter and manifestly is not intended to be read down in light of a general power of conscience. 156Olsen P had reason to consider similar provisions to those found in the Industrial Code in H.G. Collett Pty Ltd v Alsop (1982) 49 SAIR 309. However, it is unnecessary to further explore this decision in the light of some observations made by White J in Griggs v Noris Group of Companies [2006] SASC 23; (2006) 148 IR 427 at [51] and [52]. (We shall return to Griggs shortly.) 157We also refer to the observations of Jennings SJ of the Industrial Relations Court of South Australia in Bewley v Linfox Interstate Transport (1998) 85 IR 135 where his Honour stated (at 139): This Charter (which has been the subject of judicial interpretation as set out hereunder) requires the Court to consider not only what may be called the strict legalities of the matter, but must extend its consideration, in appropriate cases, to whether or not in all the circumstances of the case, the procedure and the substance of the matter have been dealt with in a manner consistent with equity, good conscience and the substantial merits of the case. 158The expression received further consideration in Griggs . In that matter, the Supreme Court of South Australia considered s 154 of the Industrial and Employers Relations Act 1994 (SA). White J (with whom Perry J and Layton J (as to the interpretation of s 154) agreed) described the issue before the Court, in so far as it concerned s 154, as follows (at [14]): The Magistrate did not rest his finding in favour of the appellant on any contractual entitlement. Instead, the Magistrate invoked s 154 of the IERA which provides: (1) In exercising its jurisdiction, the Court or the Commission- (a) is governed in matters of procedure and substance by equity, good conscience, and the substantial merits of the case, without regard to technicalities, legal forms or the practice of courts; and (b)is not bound by evidentiary rules and practices but may, subject to subsection (2), inform itself as it thinks appropriate. (2) The Court and the Commission must observe the rules of natural justice. 159His Honour then undertook a lengthy discussion as to the meaning of the various expressions found in s 154 in the following passages of his judgment (at [31] - [32]; [35]; [37] - [38] and [53]): 31 A stipulation that a decision-maker is to act in accordance with equity and good conscience and the substantial merits of the case is not uncommon. Such a stipulation, or an equivalent, appears in many statutes vesting powers in a court, tribunal or a statutory decision-maker. The expression has its origins in the legislation in the 16th Century establishing the Courts of Requests and Courts of Conscience. The reference to "equity" is not a reference to the equitable principles developed by the English Courts of Chancery - but a reference to the good sense and natural justice of the matter. At times, it has been held that the expression means that the decision-maker is empowered to do whatever it might think appropriate to achieve fairness between the litigants. For example, in Colliery Employees' Federation v Northern Proprietors' Association20 Cohen J said: " ... the words "equity and good conscience" leave this Court, in my opinion, in the position that, whilst not infringing any positive law of the country, it may do that which it believes to be right and fair and honest between man and man ... .21" 32 However, it is now accepted that the meaning of the expression "equity and good conscience and the substantial merits of the case" varies according to the context in which it is used. In particular, it is necessary to have regard to the nature of the decision-maker and the nature of the decision to be made. In Santos Ltd v Saunders Legoe J said, in respect of the then comparable provision in s 88(a) of the Workers' Rehabilitation and Compensation Act 1986: "Similar provisions appear in legislation relating to the setting up of administrative tribunals in a number of different Acts in recent times. No doubt such provision is to be adapted to the particular type of tribunal which is directed to proceed in that way. The nature of the application under consideration in the proceedings will likewise vary from case to case.22" Likewise, in Qantas Airways Ltd v Gubbins, Gleeson CJ and Handley JA said:23 "The words "equity, good conscience and the substantial merits of the case" are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found ... . " The varying content which s 154(1) may have in the cases to which it applies is evident from its own terms. It is expressed to apply to both the IR Court and to the Industrial Relations Commission (the Commission). It is to be expected that the content and application of s 154(1) will be more limited in those cases in which the IR Court is, for example, exercising the jurisdiction to hear and determine a question of law referred to it by the Commission (IERA s 12(a)), than it will be in those cases in which the Commission is exercising its jurisdiction to make awards regulating remuneration and other industrial matters (IERA s 26(b))... 35 This brief survey of the composition and jurisdiction of the IR Court is sufficient to indicate that it is established as a court of law and that it is expected to apply the principles of the common law and of statutes in the resolution of the claims which come before it. It is reasonable to suppose that it is expected to act judicially in the determination and enforcement of the rights of the parties who appear before it. It does not have an arbitral function, ie, in establishing new rights and entitlements. In my opinion, the application of s 154 is to be determined with those considerations in mind... 37 The second matter to note is that s 154 provides that each of the IR Court and the Commission are "governed" in matters of procedure and substance by equity, good conscience etc. Although in some contexts, the word "govern" is used to mean the exercise of a restraining influence or the holding of something in check, in this context, it indicates, in my opinion, that the IR Court and the Commission are to act in accordance with equity, good conscience, etc. This is the effect of a number of decisions of the IR Court.30 In my opinion, those decisions are, in that respect, correct. 38 The third general observation is that the direction that the IR Court and Commission are governed in the exercise of their jurisdiction by equity, good conscience etc relates both to matters of procedure and substance. The reference to "substance" indicates that the IR Court and Commission are to have regard to equity, good conscience and the substantial merits of the case in relation to the issues of substance which arise in matters before them and not just in the matters of evidence or procedure which may arise. Further, the presence of s 154(1)(b) and s 154(2) indicate that s 154(1)(a) is intended to encompass more than the ability to receive evidence not otherwise admissible in courts of law and more than a requirement to observe the requirements of procedural fairness... 53 There is one final comment which I would wish to make before leaving this aspect of the appeal. Both the Full IR Court and the Magistrate referred to s 154 as vesting in the Court a discretion. The Full IR Court went on to say that the exercise of the discretion could be disturbed on appeal only in accordance with the principles established in House v The King.38 For myself, I do not regard s 154 as vesting a discretion in a court, or at least a discretion of the kind to which the appellate principles discussed in House v The King apply. It is a statutory direction to the Court as to the way in which it should exercise its jurisdiction.39 It is a provision which governs all proceedings in the IR Court and Commission although, as noted above, its precise meaning and application in any given case will vary. Accordingly, where the IR Court is hearing an appeal from a decision involving the application or possible application of s 154 it should not be constrained by the principles established in House v The King as to the circumstances in which it is appropriate to interfere with the decision at first instance. 160For the purposes of these proceedings, we derive from these authorities the following:

1. The resolution of a procedural question in arbitral (or other industrial proceedings involving the exercise of such a power or function) must be undertaken in a manner consistent with equity and good conscience (including the requirement to afford procedural fairness). In other words, the Commission is required to act in conformity with those requirements in the resolution of the procedural issue raised by this matter.
2. This requirement extends to matters which concern evidence or information that the tribunal may contemplate relying upon in reaching its decision.
3. The satisfaction of those requirements will require the Commission to make its evaluation of a subject procedural question based upon good sense and fairness and by searching for a just result.
4. Despite the informality of process dictated by s 163(1)(a) and (b), the tribunal may not simply adopt literally any procedure considered reasonable and fair in industrial proceedings. There can be no denial of the appellant's proposition that, even though the Commission is not bound by the rules of evidence, this does not result in the Commission being able to act without any evidence whatsoever. This has been stated as a principle from the earliest times of industrial arbitration. Thus, in Re Tramway Employees (Melbourne) Award 1949 (1951) 72 CAR 26 , Kelly CJ, Dumphey and Wright JJ observed that "if a tribunal were to so act, obvious injustices and insecurities would result" (at 27) (see, as applied by the Full Bench of the Industrial Relations Commission of South Australia in Re Clerks (South Australia) Award Casual Provisions Appeal Case [2001] SAIRComm 7; (2001) 107 IR 355) at [78]).
5. The Commission must act judicially: see Coal & Allied at [25]. 161What then of the complaint made by the appellant (unresolved by the Commissioner) that there was no probative evidence to find the respondent's case for leave. 162The appellant complained that the bases relied upon by the respondent for the admission of fresh evidence had no evidentiary foundation, and the course which should have been taken by the respondent was to provide evidence in support of its contentions, most particularly from those persons making forensic decisions in the proceedings. 163As we have previously identified, the application by the respondent is pressed upon four grounds. The first of those grounds concerns the question as to whether the respondent misunderstood the case brought by the appellant at first instance. However, we do not consider there is any foundation to the appellant's contentions in this respect. 164It is true that there was an absence of evidence from officers or representatives of the respondent as to forensic decisions (if any) taken by them as to the subject issue. However, it does not follow that there was a complete absence of any evidentiary foundation for the respondent's submission. That is because the record of proceedings itself provided such an evidentiary foundation. Whatever formal issues might otherwise arise in that respect (if, in fact, they do arise), they are constrained by the terms of s 163(1)(b) and (c). The Commission may have regard to the record of the proceedings before the Commissioner in order to determine that aspect of the respondent's contention just as the former Commonwealth Court of Conciliation and Arbitration, when regard was had to similar provisions to those found in s 163(1)(c), could have had regard to all of the evidence heard in earlier industrial proceedings (which were a nullity) in a fresh plaint brought in later proceedings: Federated Engine-Drivers' and Fireman's of Australia v The Broken Hill Proprietary Company Limited (1913) 16 CLR 245 at 261 (per Griffith CJ). 165The second issue raised by the appellant is of greater difficulty. Here, the complaint is that there was no evidence to sustain the respondent's contention that its approach to the original proceedings was based upon non-tactical decisions. 166The best evidence in the resolution of this contention would, no doubt, lie in the evidence of any relevant officer of the respondent or other person representing the respondent as to the motivation of the respondent in the original proceedings. However, it does not follow that there is no evidence about that matter, as we consider that we are entitled to have regard to the record of proceedings in order to make such an assessment. 167A review of the record of the proceedings in this matter, in our view, establishes a sufficient evidentiary foundation to conclude that the decision taken by the respondent in this case was non-tactical in the sense that it did not make a deliberate decision to evade dealing with the subject issue. The axis of this conclusion lies in Mr Farrell's approach in putting final submissions on behalf of the respondent. It is evident from our earlier conclusions that, whilst the appellant did raise the subject issue earlier in the proceedings, it was not expressed with anywhere near the same clarity and comprehensiveness as was expressed in her final submissions. It is possible that Mr Farrell's decision to not grapple with the issue, after the submission was made by the appellant near the close of her submissions, might indicate a tactical decision (not to grapple with that issue), but we consider it more probable, when consideration is given to the entire record of the proceedings, this was no more than a mistake or error on behalf of the advocate. 168Mr Farrell's opening words in final submissions when asked by the Commissioner whether he would need a "few moments" were: No, I'm pretty much okay. Ms Lee claims she was victimised because she made a complaint about an unsafe workplace. Her complaint was as a result of a single remark made by a manager when due to issues outside her control, work on the two field computing projects in her section were stalled and she refused to accept other duties offered. 169This, when combined with a review of the respondent's conduct of the proceedings, indicated that the respondent had proceeded upon a mistaken view of the law and made erroneous judgments as to the conduct of its case. Not too much regard should be had to the fact but, as often occurs in industrial proceedings, lay advocates appear, such as Mr Farrell, who may not have the same forensic abilities as legal representatives. We think this is the more probable explanation than the decision was made for tactical reasons, particularly when it would have been a relatively easy step for the respondent to lead additional evidence as to the subject issue from Mr Locking (who gave evidence at first instance in any event) as to the subject issue. We do not suggest that this is the best evidence of the proposition, but there is sufficient evidence, in our view, to reach that conclusion. 170Thus, we consider that it was, in the circumstances of this matter, open for the Commission to come to a conclusion that the respondent had proceeded upon a mistaken decision as to the legal basis upon which the proceedings were to be resolved. We consider that this misunderstanding contributed to the manner in which the appellant constructed her case prior to final submissions. 171There is no evidence directly from the appellant that it was, in fact, the misunderstanding of its representative that led to its failure to call evidence on the subject issue, but there was sufficient evidence to enable the Commission to conclude that there was a misapprehension as to the appellant's case and that the lack of precision and clarity of her earlier statements in the proceedings had the reasonable prospect, in the absence of some clarification or particularisation, or misleading the respondent in a manner evident from its conduct of the proceedings. That clarification came only with the final submissions of the appellant. Again, whilst the preferable course would have been for the respondent to call evidence on the point at that juncture (or after an adjournment), we consider that the record of proceedings does not show a tactical approach by the respondent to ignore or overlook the subject issue, when confronted by that matter in the appellant's final submissions. Rather, the record reveals a failure to appreciate the dimensions of the shift (by a clear stated approach) in the proceedings. It was the omission of tactics or, perhaps, a tactical error which, on the balance of probabilities, led the advocate for the respondent not to make an application for adjournment (or other appropriate application) to protect the respondent's position. 172These conclusions, in our view, were entirely open to the Commissioner given the latitude provided by s 163 to enable her to get to the heart of the issue in the proceedings in a manner that is fair in all the circumstances. We should emphasis that, if the record of proceedings did not offer an evidentiary foundation (in the sense contemplated by s 163), then the only conclusion which could be reached is that leave would be refused because there would be no evidence to establish the grounds relied upon by the respondent. However, this is not the case here. 173The discussion of those matters then brings us to the final resolution of the issues raised in this appeal. 174We were referred to the principles stated by Clarke JA (with whom Mahoney JA and Meagher JA agreed) in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 as to the re-opening of to introduce fresh evidence. Although we have depreciated the use of the notion on re-opening in the present context, we consider that the Court of Appeal judgment in Urban Transport, nonetheless, provides some useful indicia for the consideration of leave in this matter. We refer, in that respect, to the following passage from the judgment of Clarke JA (at 478): The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel. 175What then is the proper determination in the interests of justice in this matter? 176On any view, the matter is finely balanced. Nonetheless, we have come to the view that leave should have been granted to admit (subject to objections as to form) the evidence, which the respondent sought to lead in the proceedings before Bishop C, and, therefore, the decision of Bishop C may be confirmed on a different basis to that adopted in the reasons given by the Commissioner. We have reached this conclusion for the following reasons:

Orders 180We order as follows: 1.Leave to appeal is granted. 2.The appeal is dismissed. 3.The matter is referred to Macdonald C to determine the proceedings in IRC 1371 of 2009 in accordance with this decision, with a direction for expedition.

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