Redmond v Director General, NSW Department of Health, on behalf of the... [2012] NSWIRComm 147 | Case summary

Inadequacy of reasons 26The first observation we make about the passages extracted above from the impugned decision is that they make no reference to the appellant's evidence. There is only a global reference in the first paragraph acknowledging that the Commissioner had taken into account the respective submissions of the parties, the affidavit evidence, the oral evidence of witnesses and an overall assessment of the appellant's evidence in the final paragraph extracted. Secondly, there is no reference in the findings (and conclusions reached) to the evidence of Mr and Mrs B contained in their records of interview which were exhibited to Mr Rochford's affidavit. Thirdly, the Commissioner made a wrong finding of fact in relation to Officer Gourlay's file note. It was tendered into evidence as an exhibit to Mr Rochford's affidavit. Submissions were advanced by the appellant as to each of those considerations as factors warranting the acceptance of the appellant's account of the treatment of Mr B and the granting of the appellant's application at first instance. For example, the evidence of both Mr and Mrs B and the contents of Officer Gourlay's file note were the subject of written submissions by the appellant in the proceedings below, particularly as to the confirmation of the appellant's account of the treatment of Mr B. 27Further, apart from a reference to other patients' records completed by the appellant in which a sensitivity to morphine was indicated and references to aspects of Ms Horgan's evidence, there are no reasons given which might have revealed the bases for the Commissioner's conclusions to the effect that the evidence supported Ms Horgan's version that fentanyl was administered intravenously by the appellant and that the respondent had satisfied the onus of proving that the appellant "had seriously misconducted himself in the treatment of Patient B". The Commissioner described the applicant's evidence as "evasive, ever-changing and adapted to the evidence that was put before him" without offering an explanation as to that conclusion, without referring to any aspect of his evidence which might have provided a foundation for the conclusion or referring to any competing evidence (which was available in the proceedings). 28Given the brevity of the findings and the lack of reasons for making the findings, it is not possible for the appellant, or for the Court, to either understand or determine the process undertaken by the Commissioner which led to her findings, or why her findings were made as to either her preference for Ms Horgan's account or her acceptance that the appellant had engaged in the impugned conduct. 29We shall elaborate upon these matters as part of the discussion of the cases of the parties below. 30In support of the ground of appeal concerning the inadequacy of reasons, the appellant relied on the decision of the Court of Appeal in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. The decision of the Court of Appeal, we note, arose in the context of a failure by the trial judge to take into account, when assessing the credibility of the appellant (the plaintiff below), the evidence of other witnesses which was not challenged and which corroborated the appellant's account before the trial judge. 31The respondent contended that the appellant's reliance on Beale was misplaced. According to the respondent, the current case, unlike Beale, did not involve the Commissioner rejecting the appellant's evidence and credibility in the face of corroboration at critical points by three other witnesses. Instead, the current case involved making an assessment of two different witnesses, and the Commissioner accepted one account and rejected the other. Moreover, it was contended she gave reasons for her preference for the evidence of Ms Horgan. The respondent also relied on another distinguishing feature of the decision in Beale, which was the trial judge's failure to make any reference to the corroborative evidence as part of the inadequacy of reasons complaint. Here, it was contended, no such point arises. 32It was also contended by the respondent that the obligation to give reasons arises by the judicial status of the Court. In contrast, the Commission is not a Court. Support for the contention was said to be found in Beale in the decision of Meagher JA at 441.6. We will return to separately consider that particular issue. 33In that part of the decision, Meagher JA made the following observations with regard to the requirement to provide reasons for decision: It is well-settled that a judge or magistrate at first instance in particular cases has an obligation to provide reasons for the judgment given: Pettitt v Dunkley [1971] 1 NSWLR 376. That obligation arises as a matter of judicial duty: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 2 NSWLR 378 at 386; but only as a normal, not universal incident of the judicial process: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. It does not arise from legislation as it does in the field of administrative law: see, eg, Administrative Decisions (Judicial Review ) Act 1977 (Cth), s 13; Administrative Appeals Tribunal Act (Cth) 1975, see 28, 37 and 43. In the administrative field there is, at common law, no obligation on primary decision-makers to provide reasons for a decision: Public Service Board of New South Wales v Osmond. 34Those observations were immediately followed, however, by remarks made by his Honour as follows: With regards statutory administrative tribunals, it is, in Australia, undecided whether there is a general rule of law imposing a duty to provide reasons: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465 at 479. 35Meagher JA went on to consider the purpose for providing reasons for decision. A primary reason identified by his Honour was the fact that a party seeking an appeal may generally only appeal where the trial judge has made an error of law: at 441. (We note, in the present context, that a decision as to whether a dismissal was harsh, unreasonable or unjust involves mixed errors of fact and law (as opposed to the exercise of a discretion): Commissioner of Police v Evans [2006] NSWIRComm 170 per Walton J, Acting President, at [1] with whom Staff J agreed.) That issue was considered by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281, where his Honour said: In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough. 36In this case, other matters were relied upon by the appellant in addition to his credibility and the credibility of Ms Horgan in relation to the contested issue as to whether the misconduct had, in fact, occurred. One such matter was the evidence of Mr and Mrs B. The content of Officer Gourlay's file note was another matter. As we have noted, both matters were addressed by the appellant in written submissions and were before the Commissioner for her consideration having been tendered as exhibits to Mr Rochford's affidavit. 37Returning to the decision in Beale, other purposes for providing reasons were identified by Meagher JA. These were, in summary: a) a failure to provide sufficient reasons can lead to a real sense of grievance that a party does not know or understand why the decision was made. b) the requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability. c) the provision of reasons exposes the trial judge to review and criticism and it facilitates and encourages consistency in decisions. d) the provision of reasons saves time for appeal courts, both in reducing the number of appeals and in reducing the time taken in considering appeals. 38We pause to acknowledge that the requirement to provide reasons does not, in turn, make it necessary to refer to all of the evidence led in the proceedings and to indicate which of it is accepted or rejected (Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, cited with approval by Meagher JA in Beale at 442). 39 Meagher JA, while recognising that the content of the obligation to provide reasons is not the same for every judicial decision, identified three fundamental elements of a statement of reasons (at 443). These were: (a)relevant evidence should be referred to, although there is no need to refer to the relevant evidence in detail. However, where certain evidence is important or critical to the proper determination of the matter and is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to; (b)a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. Where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he came to accept the one over the other. This does not require explicit findings to be made on each disputed piece of evidence; (c)a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons, or the process of reasoning, should be understandable and, preferably, logical. 40These requirements provide a guide to the examination of whether adequate reasons were provided in the decision below, although they may be approached less rigorously than a judicial decision. What must be ultimately determined for the purposes of resolving this issue in the appeal is whether the impugned decision adequately discloses the steps involved in the reasoning which led to the result or conclusion reached by the Commissioner (vis á vis the assessment of the veracity of both the appellant and Ms Horgan's evidence and the determination to accept the conclusion of the respondent that the appellant had misconducted himself). 41With regard to the first element, the evidence of Mr and Mrs B was clearly relevant evidence lending some support to the appellant's version of events. According to Ms Horgan's version of events, the appellant administered fentanyl intravenously and subsequently administered the drug intranasally. According to Mr B, the administration of fentanyl intranasally occurred after the methoxyflurane was administered. Mr B's evidence suggests a different sequence of events from Ms Horgan's account. Importantly, Mr B makes no mention of fentanyl being administered intravenously. Mrs B, who was interviewed at a later time and whose recollection of events was not clear, did recall "the whistle" (the administration of methoxyflurane) and the administration of "something" intranasally. Like Mr B, she also made no mention of fentanyl being administered intravenously via the cannula, although, according to her, she was not present throughout the whole of the process. Of greater significance was the appellants' version of events. Commissioner Tabbaa, apart from setting out the respective party's submissions on these issues, made little or no reference at all to that evidence and made no attempt to analyse it with a view to resolving the two competing versions. 42According to the respondent, the Commissioner did deal with the competing arguments and made findings. In support of the contentions, the respondent sought to rely on various passages from that part of the decision which sets out the respective submissions of the parties. As we have already noted, however, apart from setting out those submissions no findings were made and no attempt was made by the Commissioner to resolve any of the issues raised in the submissions and to explain how she reached her conclusions as to the veracity of the appellant's evidence or reached a conclusion, in the light of the evidence we have described above, that the appellant had engaged in an act or acts said to constitute misconduct warranting determination. The passages in the decision relied upon by the respondent to make out the contentions reflect no more than recitation of the evidence and the respective arguments. 43The respondent asserted that the present case is distinguishable from Beale in that it involved Commissioner Tabbaa making an assessment of two different accounts of the same events given by two witnesses. We would agree that this was a critical matter before the Commissioner for her determination but we do not agree that an assessment, or any proper assessment, was made of the two different versions. Such an assessment, if it had been undertaken, would have involved a consideration of the appellant's evidence and some explanation as to why the Commissioner did not accept his version of events. Mere reliance on demeanour, without recourse to any of the underlying material facts or any resolution of the issues, is not sufficient: see, for discussion of reliance on demeanour in making credibility findings, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at 329-330 per Kirby J. 44It follows from the foregoing remarks that Meagher JA's fundamental elements of a statement of reasons are not addressed in the decision. No material findings of fact are set out in the decision with regard to the appellant's version of events. There is no proper basis upon which either of the parties or the Full Bench can discern how it was that Commissioner Tabbaa accepted Ms Horgan's version of events over the appellant's account. No reasons are provided as to why the Commissioner made the finding that the appellant's evidence "was evasive, ever changing and adapted to the evidence that was put before him". 45Lee v Energy Australia (No 4) [2011] NSWIRComm 120 is another authority which touches upon the issue of the content of reasons in the decision-making process. The decision was an appeal from the decision of a Commissioner on a preliminary point. There are a number of similarities between the present case and Lee (No 4). Like the present case, the Commissioner, in Lee (No 4), extensively set out the issues in the proceedings and the submissions of the parties, but made no attempt to reconcile the competing submissions of the parties and gave no reasons for the resolution of the ultimate question (here, whether the respondent had discharged its onus that the appellant had engaged in misconduct). At [137] of the decision in Lee (No 4), the Full Bench observed: The 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'. 46The Full Bench also adverted to some important considerations which, in our view, provide support for the existence of an obligation upon a Commissioner to provide reasons when exercising the jurisdiction of the Commission to determine an application for relief against unfair dismissal. In this regard, the Full Bench said (at [130]): Even 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. 47By analogy, the proceedings before Commissioner Tabbaa were inter partes and affected significant individual rights. The respondent's decision to dismiss the appellant from his employment was the most severe form of penalty that could be imposed. It was based on the allegation of misconduct made against him by Ms Horgan. The appellant was entitled to know why Ms Horgan's version was preferred over his version. More was required than the setting out of adverse factual findings made against him. The appellant was entitled to know the material facts which provided the basis for the conclusion. The absence of reasons makes it impossible for the Full Bench to assess what was taken into account by the Commissioner in concluding that the misconduct had been established by the respondent to the requisite standard (which was the civil standard: beyond the balance of probabilities). The onus for establishing the misconduct was on the respondent. That onus could not be discharged satisfactorily by reference only to the evidence of Ms Horgan and the acceptance of that evidence by the Commissioner without any examination of the evidence relied upon by the appellant and without any attempt made to resolve the competing versions (and submissions made as to the same). 48Also relevant to our observations on the content of reasons is the decision of the Court of Appeal in Ainger v Coffs Harbour City Council [2005] NSWCA 424. McColl JA (with whom Mason P and Hunt AJA agreed) provided the following commentary on the adequacy of reasons (at [47] [48] and [53]): [47] Adequacy of reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA. [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". ... [53] Although the primary judge made passing reference to some of the evidence upon which the appellant relied, he gave no reasons for apparently according it little or no weight. Significantly, his Honour failed to address the theory of the appellant's case, turning as it did on the respondent's role in creating and failing to rectify the trip hazard she had encountered. This omission leads to the inference that he failed to examine all the material relevant to the question whether the respondent had breached its duty of care (see TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 at [150] per Spigelman CJ) - so that there was an "error in the process of fact finding". 49Adopting the terminology employed by McColl JA at [53], Commissioner Tabbaa failed to address the appellant's case theory which was that he did not administer fentanyl intravenously to Mr B and, therefore, the respondent had failed to discharge its onus in establishing that the misconduct had occurred. 50The issue which remains for our consideration is whether the obligation or the requirement to provide reasons extends to the hearing of an application for relief against unfair dismissal in the Commission (we have commenced our discussion of this issue above). 51According to the respondent, Commissioner Tabbaa was not required to give reasons because the Commission is not a Court. In support of this contention, the respondent relied on the remarks of Meagher JA in Beale at 441.5 in the passages we have extracted earlier. The respondent also relied on the principles espoused in Public Services Board (NSW) v Osmond (1986) 159 CLR 656 as discussed by Meagher JA in Beale at 441.6. The Full Bench was not directed to any particular passage, or passages, from Osmond. 52Counsel for the respondent did not draw to the attention of the Full Bench authority of this Commission which stands squarely against the contentions advanced by the respondent in this respect. 53In Lord v Flight Centre (No 2) [2006] NSWIRComm 282, a Full Bench of the Commission, following an earlier Full Bench decision in Webb v Goulburn Masonic Village [2004] NSWIRComm 258; (2004) 136 IR 309, concluded that, in proceedings under Pt 6 of Ch 2 of the Act (such as the present), the determination of applications made under s 84 of the Act by non-judicial Members of the Commission required the provision of reasons for the decision. (It was also decided that the reasons for decision must be adequate, such that the decision will disclose the steps in reasoning which led to the determination of the proceedings.) 54The relevant passages from the judgment in Lord are as follows (at [13] to [14]): 13 The need for reasons to be given has often been discussed. It is a particularly important requirement, in circumstances where a case is dismissed, without the parties being heard. In Webb v Goulburn Masonic Village (2004) 136 IR 309, it was observed: 33 As to the issue regarding the failure of the Commissioner to give adequate reasons for his decision, there are numerous cases that address the requirement on judges to give adequate reasons for their decisions: Petitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271-272 per Mahoney JA and at 280-281 per McHugh JA; Yates Property Corporation Pty Ltd (in liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA; Mifsud v Campbell (1991) 21 NSWLR 725 per Samuels JA at 728. The statements regarding the requirement to give adequate reasons have been approved in a number of decisions of the Commission: Woolworths Ltd v National Union of Workers, NSW Branch (unreported, Fisher CJ, Hungerford and Peterson JJ, CT96/1060, 1065 and 1074, 12 July 1996); Lismore Challenge Ltd v Lavis (1999) 88 IR 230 at 235; WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Allen Taylor & Co Ltd (1999) 92 IR 392 at 393. 34 In Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 459, the Full Bench held: Although the failure of a judicial officer to provide adequate reasons may constitute an error of law (see Pettit v Dunkley (1971) 1 NSW LR 376 at 388), the extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271 -273 per Mahoney JA and at 280-281, per McHugh JA, and Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA). It is not always necessary for a judicial officer to expose every step in his or her chain of reasoning. 35 In Lorna Britton and Riverstone Public School (unreported, Matter No IRC 5504 of 1998, IRC of NSW, Schmidt J, Sams DP and McLeay C, 6 May 1999), an appeal involving an unfair dismissal from Commissioner Buckley, the Full Bench, after referring to Woolworths Ltd v National Union of Workers, NSW Branch and Soulemezis, observed that: It also follows that where reasons which are given are brief, they nevertheless must deal with the particular issues of fact and law which call for determination in the case ... What is required is for reasons to be given in relation to the issues which require the Commission's determination in the particular case. 36 We also refer to Entertainment Distributors Company Pty Limited v Burnard (1993) 49 IR 446 at 452, an appeal from a decision of Conciliation Commissioner McMahon and Monier PGH (Holdings) Ltd v Horsey (1998) 86 IR 63 at 72-73. 37 In Edwards v Giudice (1999) 169 ALR 89 Marshall J (with whom Moore J agreed, Finkelstein J not finding it necessary to determine) made certain findings regarding the obligation on a non-judicial member of the Australian Industrial Relations Commission ("AIRC") to give adequate reasons for any decision. At [44] to [46] his Honour stated: 44 In a seriously contested case before a tribunal which is required to afford procedural fairness and act judicially, an arbitrator is obliged to disclose the steps involved in the reasoning which leads to a particular result. There does not appear to be any obligation expressed in the Act to require a member of the Commission to give adequate reasons for a decision. It does not thereby follow, however, that in some cases such as strongly contested ones where a final order of significant consequence may be made that full reasons should not be given. 45 As Deane J said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366: A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made. 46 The obligation to give adequate reasons may more readily arise when a right of appeal lies from the order which gives effect to the decision at first instance, as is the case in the instant circumstances. Indeed a statutory right of appeal was considered by the New South Wales Court of Appeal as being a relevant "special circumstance" in the context of the portion of the judgment of Gibbs CJ in Osmond cited above: see Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 per Priestley JA, with whom Powell JA agreed (at 734-5), and per Handley JA at 739. 38 In Edwards v Giudice the Full Bench of the Federal Court was concerned with decisions by a member of the AIRC pursuant to s 170 CG of the Workplace Relations Act 1996 (Cth). Whilst that provision is different from the counterpart provisions in ch 2 Pt 6 of the Industrial Relations Act 1996 (for example s 170CG(3) makes it mandatory for the AIRC to have regard to certain matters whilst s 88 of the Industrial Relations Act leaves it to the discretion of the Commission to take similar matters into account, if appropriate) we, nonetheless, consider that there is an obligation upon non-judicial members of this Commission to "disclose the steps involved in the reasoning which leads to a particular result" in those cases where there is a duty to accord procedural fairness or natural justice. Such cases include applications under s 84 of the Act. 39 The extent to which reasons are required will, of course, depend on the nature of the case and it will not always be necessary to provide "a detailed and exhaustive analysis of each and every matter raised in a proceeding" (Entertainment Distributors at 452). However, in the present case, the Commissioner did not provide an adequate analysis as to what led him to dismiss the appellant's application. Coupled with the Commissioner's reliance on material that was not in evidence, his failure to provide adequate reasons amounted to a breach of procedural fairness. 14 We endorse those observations and indicate further, that the Commissioner was here required to give reasons explaining why the proceedings were dismissed for want of prosecution, albeit in the circumstances the reasons would have been short. 55The Full Bench decisions in Lord and Webb were both cognisant of the High Court authority in Osmond. Whilst the respective Full Benches did not directly discuss the application of Osmond (in the context of proceedings under Pt 6 of Ch 2 of the Act), both decisions expressly relied upon the judgment of the majority of the Federal Court in Edwards v Giudice (1999) 169 ALR 89 in reaching their conclusions. Edwards considered the obligation for reasons, in the light of Osmond, in decisions given under Federal industrial legislation providing a right of action for (loosely speaking) unfairly dismissed employees. 56In Edwards, the Federal Court concluded that the statement of the common law as to the provision of reasons in administrative decisions in Osmond did not preclude an obligation of a non-judicial Member of the Australian Industrial Relations Commission ("AIRC") to give reasons for decision in determining, by arbitration, an application under s 170CE of the Workplace Relations Act 1996 (Cth) prosecuted upon the basis that a termination was harsh, unjust or unreasonable. We will return to the judgment in Edwards, but it is clear that the decision of the majority distinguished Osmond because of the nature of the arbitral processes before the AIRC and the statutory provisions governing the exercise of that power (including the provision of a conditional appeal from determinations made in the exercise of that power). 57In Webb, the Full Bench adapted the reasoning in Edwards to proceedings under Pt 6 of Ch 2 of the Act to reach the same conclusion. This was followed in Lord. (Whilst not presently applicable to this aspect of our reasoning, we note that we would agree with those conclusions, having regard to the provisions of the Act governing unfair dismissal proceedings, including various provisions governing the procedure to be adopted by the Commission in such matters.) 58It follows that the undeveloped reference to Osmond by the respondent offers no proper basis for us to revisit (or depart from) previous authority in this Commission at a Full Bench level that reasons are required for arbitral decisions made under Pt 6 of Ch 2 of the Act (we might add that the failure to give adequate reasoning will effectively vitiate any such decision). 59Nor, in our view, does the respondent's reliance upon the passage from the judgment of Meagher JA in Beale (at 441) warrant any departure from the authorities to which we have referred. This is for two reasons. First, it is true that Meagher JA stated, with regard to statutory administrative Tribunals, it is, in Australia, undecided whether there is a general rule of law imposing a duty to provide reasons (see [32] of this decision above). However, that aspect of his Honour's judgment cites as authority the judgment of Wilcox J in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR at 497. 60In Our Town FM, Wilcox J discussed the difference between the approach at common law in Australia, vis á vis the judgment of the High Court in Osmond, and the United Kingdom to conclude that it is open whether the approach in the United Kingdom (requiring the provision of reasons in decisions of the statutory Tribunal) should be taken as the law with respect to an Australian Tribunal. However, his Honour qualifies his opinion by stating that this position only applies where there is no statutory command to give reasons. The judgment in Edwards and the decision of this Commission in Lord both consider a particular statutory context, being one in which reasons will be required. 61The second consideration relates to Meagher JA's further observation in relation to statutory administrative Tribunals immediately following the passage we extracted in [32] above), which was as follows (at 441): Despite the fact that the obligation on courts to provide reasons may have a different origin, the former being an incident of judicial duty and the latter being a legislative requirement, there is no reason in principle or as a matter of policy why the content of reasons for both types of decision should not be similar, if not the same: they essentially serve the same purpose. 62Bearing in mind those considerations, we do not consider it appropriate to revisit (or depart) from earlier authority of this Commission that a non-judicial Member of the Commission will be required to provide reasons when determining an application under Pt 6 of Ch 2 of the Act. Based on the application of those authorities, we reject the contention advanced by the respondent in this respect. We do propose, however, to make some further observations. 63We make the following observations in relation to the requirement to give reasons in decisions given under Pt 6 of Ch 2 of the Act: (1)The requirement to give reasons in decisions determining unfair dismissal applications (or related proceedings concerning victimisation) has been consistently applied by Full Benches of this Commission after Webb and Lord; see, more recently, Ambulance Service of NSW v Buchtmann [2007] NSWIRComm 18 at [49] and [50] and Lee v Energy Australia (No 4) [2011] NSWIRComm 120 at [134] to [137]. (2)The judgment of the High Court in Osmond concerned an appeal to the Public Service Board of NSW from a refusal to appoint Mr Osmond by way of promotion to a vacant position as chairman of the Local Lands Boards. The Public Service Board considered that appeal under s 116 of the Public Sector Act 1979 and refused the appeal without giving reasons. The consideration by the High Court as to whether reasons were required revolved primarily around the nature of an appeal under s 116 and, in particular, the absence of any statutory provision which required the Board to give reasons for its decision or a statutory basis for appeal from such a decision. A contrast was drawn to an appeal from the Board to the Government and Related Employees Appeal Tribunal (as it then was) established under the Government and Related Employees Appeal Tribunal Act 1980. Hence, statutory provisions may alter the position at common law by obliging, in administrative decisions, the giving of reasons (661 and 664 per Gibbs CJ; 672 and 673 per Wilson J and 676 per Deane J). (3)The discussion in Osmond as to the requirement, or otherwise, to give reasons in administrative proceedings applies to both administrative and quasi-judicial decision makers: Soulemezis at 261 (per Kirby P). The judgment of the Chief Justice in Osmond should be construed, in a judicial context, as indicating the requirement to give reasons where there is a right of appeal so that the right of appeal might be properly exercised (Soulemezis at 269 per Mahoney JA). McHugh JA in Soulemezis (at 280) observed that more elaborate reasons were required where legislation gives a right of appeal against a decision than where no appeal lies. He further observed that "even in cases where a court is given a statutory power to vary existing rights and duties, it must exercise the power in accordance with principles and not arbitrarily" (at 278). We note, in that latter respect, that this quotation from his Honour's decision described the nature of the exercise of statutory power under s 84. (4)The extract from the judgment of Marshall J appearing in the Full Bench judgment in Webb at [37], as adopted in Lord at [13], was preceded by three passages of his Honour's judgment, the first two of which referred to passages from the judgment of the Chief Justice and Deane J in Osmond, and the third stating "The Commission, although an administrative Tribunal, does arbitrate on the claims of competing parties in a quasi-judicial setting. It is obliged to act judicially and afford procedural fairness to persons with business before it" (at [43]). No lesser requirements governed the proceedings before Tabbaa C: see Lee (No 4) at [160(5)] and CGEA Transport Limited T/as Southtrans v Transport Workers' Union of Australia [2001] NSWIRComm 287; (2001) 110 IR 211 at [33] to [35]. (5)Attention should also be given to the judgment of Moore J in Edwards. His Honour identified that the power exercised by the AIRC in Edwards was one conferred by s 170CG of the Workplace Relations Act 1996 (Cth). That power involved the process of hearing and determination which was quasi-judicial in character because the Commission was required to ascertain relevant facts and adjudicate upon whether the established facts resulted in a contravention of the standards, namely, that the termination would not be unjust or unreasonable. The comparisons with the requirements of s 84, in this respect, are reasonably obvious, although the statutory obligation or criteria for the intervention of the Tribunal in the case of a dismissal was expressed differently. (6)As to the requirements for reasons in this context, Moore J found in Edwards (at [10] and [11]): 10 I should mention one further matter. While the Full Bench did not say so expressly, it appears to have proceeded on the basis that Commissioner Tolley had a duty to give reasons which addressed material issues of fact and law. It was correct in taking this approach. The powers exercised by the Commission in relation to an application under s170CE in an arbitration involve the vindication of personal rights conferred by the WR Act. The proceedings result in inter partes orders: see s170CI. As is apparent from the passage quoted from Re Australian Industrial Relations Commission, (supra) the exercise of those powers gives rise to quasi-judicial proceedings with a conditional right of appeal. An appeal is by leave. Though it was decided in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 that there is no general obligation to give reasons, there are many cases where the obligation does arise: see Fleming v R (1998) 158 ALR 379 at para22 and particularly when a right of appeal exists: see T v Medical Board of South Australia (1992) 58 SASR 382, Re Saunders [1993] 2 QdR 335 and Attorney General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729. 11 A comparatively recent decision of the Court of Appeal, R v Civil Service Appeal Board, ex parte Cunningham [1991] 4 AllER 310, addressed whether the Civil Service Appeal Board of the United Kingdom was obliged to give reasons in relation to its consideration of penalty in a claim for unfair dismissal. Lord Donaldson said in at 319: "Any other conclusion would reduce the board to the status of free-wheeling palm tree". In my opinion the subject matter of the power to arbitrate under s170CG, when taken together with the conditional right of appeal conferred by s45 and the grounds of appeal in s170JF, point to the conclusion that the Commission is, when determining an application under s170CE by arbitration, obliged to give reasons for its decision which deal with the material legal and factual issues presented for determination and which deal with the matters the Commission must consider because of s170CG(3) and the relevant provisions of s170CH. The power conferred by s45(6)(b) is, in my opinion, not directed to the provision of reasons by the primary decision maker against whose decision or order an appeal is brought. That provision is intended to facilitate the hearing of an appeal where the Full Bench seeks to investigate itself issues that were not investigated or investigated fully at the original hearing. (7)Allowing for a different statutory context, we consider these reasons operate with the same force in the context of an exercise of arbitral power under Pt 6 of Ch 2 of the Act. (8)Reference should also be made to the decision of a Full Court of the Federal Court of Australia in Soliman v University of Technology, Sydney [2012] FCAFC 146 which is also applicable in the present context. Those proceedings concerned a claim by Dr Soliman that disciplinary action taken against him by the University of Technology, Sydney was in breach of an agreement. After a series of interlocutory proceedings, that matter was ultimately resolved by Vice-President Watson of Fair Work Australia in Soliman v University of Technology, Sydney [2010] FWA 8639 and, on appeal, by a Full Bench of Fair Work Australia: Soliman v University of Technology, Sydney [2011] FWAFB 1427. One question arising in those proceedings was whether the reasons provided by the Vice-President were adequate. The Full Court made the following observations regarding the requirement to give reasons (at [42] and [43]): 42 Second, in the absence of an express statutory requirement there is no general common law duty to provide findings or reasons for an administrative decision: Public Service Board (NSW) v Osmond (1986) 159 CLR 656. See: Akehurst, "Statements of Reasons for Judicial and Administrative Decisions" (1970) 33 Modern Law Review 154 43 Third, notwithstanding the absence of an express statutory requirement to provide reasons, a requirement to do so may be implied in circumstances where (for example) there is a right of appeal or a right to seek judicial review: Osmond (above) at 666-667 per Gibbs CJ. See: Campbell, "The duty to give reasons in administrative law" [1994] Public Law 184. But where the "legal rights as between an employee are determined", the decision in Osmond has been confined to "administrative decision-making and not to the exercise of judicial power": Campbelltown City Council v Vegan [2006] NSWCA 284 at [109]-[110] ; 67 NSWLR 372 at 394-395 per Basten JA. Handley JA (with whom McColl JA agreed) there expressed a broader view, namely that there was an "implied duty to give proper reasons" where "there is an appeal from an administrative decision maker to a panel or from an expert to a panel of experts": [2006] NSWCA 284 at [24] ; 67 NSWLR 372 at 377. (9)As to the relevant provisions of the Act, including the obligations to give reasons for decisions made under Pt 6 of Ch 2 of the Act, we do not repeat the earlier analysis undertaken in Webb and Lord as to the provisions of s 88 of the Act and the availability of an appeal from a decision of the Commission made under that Part of the Act. Nor do we repeat our earlier discussion as to the nature of the proceedings which were before Tabbaa C. In the broad, the matter involved inter partes proceedings requiring adjudication as to questions of fact and law or the application of facts to the law in quasi-judicial proceedings. The resolution of the proceedings involved, at least, questions involving serious personal rights of the appellant relating to his application to restore his employment and livelihood. The obligation to provide reasons for why misconduct had been established, for example, is starkly brought into focus in this appeal. Further, without reasons, or adequate reasons, this Full Bench cannot review, in any meaningful way, the decision of the Commissioner. (10)We would wish to mention, however, other provisions of the Act which may also bear upon this question without ultimately ruling on their applicability. First, s 162(2) deals with the procedures the Commission may adopt in its proceedings. Section 162(2)(h) provides that the Commission may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious. An incident of that function must be the provision of reasons as to whether the proceedings may be so characterised. Secondly, s 163(1)(c) provides that the Commission "is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms". It appears to us, by implication, the Commission, in acting in accordance with those requirements, must not act arbitrarily, and in so doing, thereby provide reasons for decision. A hallmark for the requirements of s 163(1)(c) would seem to require the Commission to give a reasoned and rational consideration to the merits of the cases provided by parties before it, demonstrated through the giving of reasons for decision. Finally, the reference to reserving a decision in s 177 would seem to bring with it the notion of a procedural step of delivering and publishing a judgment in which reasons may be provided by the Commission. That is the normal practice for decisions given under Pt 6 of Ch 2 of the Act in this jurisdiction. 64Given these matters, we conclude that the Commissioner's failure to provide adequate reasons constituted an appealable error which requires correction.

Redmond v Director General, NSW Department of Health, on behalf of the Ambulance Service of New South Wales

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