Ryano Pty Ltd v New South Wales Department of Education and Training

Apprenticeship and Traineeship Act 2001 Industrial Arbitration Act 1940 LEGISLATION CITED: Industrial and Commercial Training Act 1989 Supreme Court Act 1970 Workmen's Compensation Ordinance 1949 (NT)

Allesch v Maunz (2000) 203 CLR 172 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 Coulter v The Queen [1988] HCA 3; (1988) 164 CLR 350 CASES CITED: Dare v Dietrich (1979) 26 ALR 18 Fox v Percy (2003) 214 CLR 118 Iain Charles McFarlane Smith v Appeal Panel under the Industrial and Commercial Training Act 1989 [1999] NSWIRComm 14 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 Topman v State Rail Authority of New South Wales [2004] NSWIRComm 272

Mr J J Priestley of counsel (Appellant) LEGAL REPRESENTATIVES: Somerville Laundry Lomax, Solicitors

RYANO PTY LTD v DEPARTMENT OF EDUCATION AND TRAINING

Application under section 55 of the Apprenticeship and Traineeship Act 2001 by Ryano Pty Ltd for leave to appeal and appeal against a decision of the Vocational Training Appeal Board given on 24 September 2008

1 In an amended application filed on 29 April 2009, Ryano Pty Ltd ('the appellant') sought leave to appeal and to appeal from a determination and order of the Vocational Training Appeal Panel made on 24 September 2008 ('the determination') and 14 November 2008 ('the order'). The effect of the determination was to declare the appellant to be prohibited from entering into apprenticeships and traineeships under the Apprenticeship and Traineeship Act 2001, as an employer, for an indefinite period. 2 The appellant was a company that had been carrying on the business of cabinet making since 1994. It operated a small workshop/factory in the regional area of Ballina. The family business was conducted by Mr John Ryan and his wife Lesa. 3 In December 2007 the appellant engaged a young man named Byron Nolan. Initially it was on a work experience basis but that became, on 21 January 2008, full time employment. Subsequently Mr Nolan became an apprentice to the appellant with the relevant training contract being signed on 19 February 2008. 4 On 28 April 2008 Mr Nolan's apprenticeship was terminated during the probationary period of three months. There was no question about the legitimacy of that termination. As at the date of termination, the evidence was that there was no complaint of any description to any person. In May 2008, the Construction Forestry Mining and Energy Union ('the CFMEU') wrote to the Commissioner for Vocational Training listing seven alleged failings by the appellant to discharge its obligations under Mr Nolan's apprenticeship. 5 On 19 June 2008 Mr Damon McCarthy, a Training Advisor with the Department of Education and Training, made a complaint under s 39(1)(b) of the Apprenticeship and Traineeship Act 2001 ('the Act'). That provision is in the following terms: (1) A complaint that a party to an apprenticeship or traineeship has failed to discharge his or her obligations under the apprenticeship or traineeship may be made:

(b) by an industry training officer who is a public servant.

6 The complaint indicated that Mr McCarthy had discussed the CFMEU's allegations with the appellant and having done so Mr McCarthy made certain recommendations as follows: [T]hat the Vocational Training Tribunal conduct a hearing to determine whether the employer RYANO Pty Ltd failed to meet their obligations under the Apprenticeship and be marked as a Prohibited Employer. 7 However, in a report by Mr McCarthy dated 16 June 2008 he recommended as follows: I recommend that the employer RYANO Pty Ltd be marked as a 'High Risk' employer. Mr Ryan has disputed the extent of the allegations made by Byron Nolan and has provided limited structured off and on the job training.

In regards to their current apprentice Luke Williams the 'High Risk' status will provide an opportunity for State Training Services to counsel Mr Ryan and allow us to facilitate further meetings to discuss the issues raised by Luke. Should Mr Ryan not fulfil his obligations we can then look at recommending Mr Ryan be placed as a 'Prohibited Employer'. 8 Mr McCarthy's report of 16 June 2008 was emailed elsewhere within the Department, firstly to a Mr Andrew Mavrakakis who then emailed it to John Spierewka. Mr Spierewka was the chair of the Vocational Training Tribunal. Mr Spierewka informed Mr McCarthy by email dated 18 June 2008 that he had looked at the original complaint by the CFMEU and considered that 'further action is warranted'. Mr Spierewka noted that the apprentice was not currently in an apprenticeship and could not, therefore, be the complainant. Consequently, he indicated in his email: We however can deal with this matter as a training officer complaint, under: · S39(1)(b), relating to a party failing to discharge their obligations under the apprenticeship; or · S39(2), relating to a party failing to comply with requirements under the Act. 9 Then followed Mr McCarthy's report referred to earlier dated 19 June 2008, in the form of the complaint under s 39(1)(b). In an email sent by Mr McCarthy to Mr Spierewka on 20 June 2008 by which he forwarded the revised report, Mr McCarthy stated 'I still believe that the employer should be marked as High Risk not Prohibited'. 10 On 25 July 2008 the Vocational Training Tribunal, chaired by Mr Spierewka, considered Mr McCarthy's complaint. On 31 July 2008 the determination of the VTT was made. The finding was that, subject to further submissions permitted by s 53 of the Act, the appellant was to be declared a prohibited employer indefinitely. The submissions pursuant to s 53 did not achieve any change in the Order. 11 On 12 August 2008 the appellant filed an appeal with the Vocational Training Appeal Panel ('the Appeal Panel') pursuant to s 54 of the Act. The hearing of the appeal took place on 24 September 2008. The Appeal Panel determined, inter alia, to give notice to the appellant of its intention to make an order declaring the appellant a prohibited employer indefinitely under s 53(1)(a) of the Act and providing 21 days to the appellant to make submissions with respect to the proposed order. Despite submissions from the appellant, on 14 November 2008 the Appeal Panel made a Prohibited Employer Order against the appellant in the following terms: ... that Ryano Pty Ltd be declared to be prohibited from entering into apprenticeships and traineeships under the Apprenticeship and Traineeship Act 2001, as an employer, for an indefinite period. 12 Subsequently, the appellant appealed to the Industrial Court of New South Wales pursuant to s 55 of the Act, which is in the following terms: (1) An appeal from a decision of the Appeal Panel may be made to the Industrial Relations Commission in Court Session (the Commission ), but only by leave of the Commission. (2) An application for leave to appeal under this section must be made within 6 months after the appellant is notified of the Appeal Panel's determination or within such further period as the Commission allows. (3) In dealing with the appeal, the Commission: (a) may exercise any function that could have been exercised by the Appeal Panel in making the determination the subject of the appeal, and (b) is not bound by the rules of evidence, but may inform itself in any manner it thinks fit. (4) The decision of the Commission is final and is to be given effect to as if it were the decision of the person or body in respect of whose decision, determination, action or failure to act the appeal has been made. APPEAL GROUNDS 13 The grounds of appeal may be summarised under five headings: (i) Denial of natural justice. (ii) Unreasonableness of Appeal Panel determination. (iii) Failure of Appeal Panel to give reasons. (iv) The matter should not have proceeded as the parties agreed to resolve the matter (s 50 of the Act). (v) The determination was manifestly excessive. SETTLEMENT

14 At the outset of the hearing of the appeal the Court indicated that it had taken the opportunity to read the material that had been filed in the proceedings including the written submissions of the parties. Having done so, the Court indicated it had reservations about the process adopted before the Tribunal and the Appeal Panel and inquired of the parties whether there was any prospect of the matter being settled. The parties indicated they were prepared to explore that prospect. 15 In the result, a settlement was reached and the consent orders are set out at the conclusion of these reasons. CONCERNS 16 Notwithstanding settlement, Mr T J Dixon of counsel for the respondent submitted: Given what has fallen from your Honour this morning in relation to the comment on the process in the appeal panel below, and given the very large issue that was raised in relation to the nature of the jurisdiction, my instructions are that my client has obviously broad concerns that go beyond the matter that is before your Honour today, and would obviously see some utility in some sort of decision being made on those matters, number one being the nature of the jurisdiction, the appellate jurisdiction to this Court and secondly the bare minimum requirements that the appeal panel tribunal would have to adopt as far as their processes go to discharge the obligations to do with procedural fairness. There has been no great direction in relation to those matters. It's obviously, from what has fallen from your Honour, a matter that needs to be addressed and in my submission it's appropriate that the Court above those in the hierarchy would give guidance in relation to those. 17 Mr J J Priestley, counsel for the appellant, questioned the utility of what was proposed, but did not demur from what was put by Mr Dixon. 18 The Court acceded to Mr Dixon's request, especially given that the parties had made extensive submissions regarding the nature of the appeal. I should make it clear however, that in relation to the concerns I had about the processes before the Tribunal and the Appeal Panel, if the matter had proceeded to hearing those concerns may well have been overcome by the respondent. As to the prospect of settlement, I had noted in the papers that the representative of the appellant had advised the Appeal Panel that the matter could be settled. I understand, of course, that there was no obligation on the Appeal Panel to countenance a settlement, but it did not seem to me, from the record of the proceedings that the Appeal Panel gave the settlement proposal serious consideration. In the result the settlement on appeal is little different to what was originally proposed before the Appeal Panel. 19 In relation to the proceedings before the Tribunal, the concern I had was that the chair of the Tribunal, Mr Spierewka, had effectively initiated the proceedings before the Tribunal by proposing the course he did to Mr McCarthy, notwithstanding Mr McCarthy's obvious reluctance to initiate proceedings under s 39(1)(b) of the Act. Mr Spierewka's involvement at this stage was not revealed to the appellant until a summons to produce was issued by the appellant. Mr Spierewka's involvement in initiating the proceedings raised questions of apprehended bias. 20 Additionally, there had been a great deal of correspondence between the Appeal Panel and other persons, including correspondence from Mr Nolan's mother who made representations to the Project Officer, Vocational Training Tribunal Unit on her son's behalf and a letter from the local member of Parliament to the 'Presiding Officer' of the Appeal Panel on behalf of Mr and Mrs Ryan. As far as I am able to ascertain none of this material was made available to the opposing party and whether the Appeal Panel had regard to any of the correspondence is not known. Moreover, I can find no correspondence from the Appeal Panel, or an executive officer with the relevant authority, indicating to the sender that correspondence about matters the Appeal Panel was required to adjudicate upon was inappropriate. The correspondence only came to light as a result of a summons to produce issued by the appellant. 21 In relation to the proceedings before the Appeal Panel I note that the appellant had been provided only with a copy of the facsimile message of 11 July 2008 enclosing the CFMEU's letter of 13 May 2008, the 19 June 2008 complaint of Mr McCarthy and the Determination of the Tribunal. Counsel for the appellant complained that: (i) Ryano had not been told anything beyond the allegations reduced to 7 matters set out in the document of Mr McCarthy of 19 June 2008; (ii) those allegations were never at any time prior to 24 September particularised, and were never at any time at all particularised in writing. For example the 19 June document (page 7) does not state a single date that any one of the alleged failures occurred, nor is any other particular provided; (iii) Ryano was unaware of, and had not been served with, any evidence; (iv) Ryano had not been provided with any statement of any person given in support of the complaint being made whether it be by the apprentice concerned or other people. Indeed it would seem that such a statement may not have even existed until very shortly before 24 September; (v) Ryano was not provided with any material that was available to the investigator apart from the letter of the CFMEU which in itself is no evidence at all because it is simply a document setting out allegations. 22 It also appears from the material filed by the appellant that the Appeal Panel had in its possession two statements, one from Mr Nolan and one from Mr Williams that the appellant had not previously seen. Neither Mr Nolan nor Mr Williams were present at the hearing and available to be questioned by the appellant regarding the statements allegedly made by them. Further, the statements contained allegations that had not been previously put to the appellant including allegations by Mr Williams who was not a party to the proceedings. For the appellant, sworn evidence had been filed and served none of which was challenged. 23 It is to be accepted that the Tribunal and the Appeal Panel are not bound by the rules of law governing the admission of evidence and may inform itself on any matter in such manner as it thinks fit (s 44(1)). Further, a hearing must be conducted with as little formality and legal technicality as the circumstances of the case permit (s 44(2)). It may also be accepted the Tribunal and the Appeal Panel play an important role in the protection of apprentices. 24 What concerned me, however, and why I raised for consideration the prospect of settlement (noting that the appellant and Mr Nolan had indicated to the Appeal Panel they were prepared to settle the matter) was that the appellant had been penalised quite severely in being declared a Prohibited Employer for an indefinite period in circumstances where the Appeal Panel had received statements from Mr Nolan and Mr Williams that the appellant had not previously seen and which contained allegations against the appellant that had not previously been made. Moreover, the makers of the statements, Mr Nolan and Mr Williams, were not available for any questions to be asked of them either by members of the Appeal Panel or by the appellant. 25 It may be that the appellant should have sought an adjournment upon being presented with the statements and sought the Panel's approval to have Mr Nolan and Mr Williams present in order that they could be questioned. Given that there was the prospect of the appellant being declared a Prohibited Employer by the Appeal Panel (the Tribunal already having done so), I would have thought it would have been appropriate for the Appeal Panel to exercise its power to require Messrs Nolan and Williams to attend and either give sworn evidence and/or to answer questions: (ss 46(1); 47(1)). 26 Nevertheless, I have not had to deal with these matters in a determinative sense because the appeal was settled.

Submissions for the respondent 27 On the question of the nature of the appeal, it is not a matter free of difficulty. In Topman v State Rail Authority of New South Wales [2004] NSWIRComm 272 at [19] and [20] Staff J observed: [19] The matter proceeded before me as an appeal by way of re-hearing. A consideration of the following provisions point in favour of the appeal being an appeal by way of re-hearing. Firstly, the Court is empowered to exercise any "function" that could have been exercised by the Appeal Panel: s 55(3)(a). Secondly, the Court "is not bound by the rules of evidence but may inform itself in any matter it thinks fit": s 55(3)(b). Thirdly, an appeal to the "Appeal Panel is to be dealt with by way of a new hearing and fresh evidence or fresh information may be given on appeal": s 54(2). Fourthly, the proceedings before the Tribunal and the Appeal Panel were conducted in an informal manner with no affidavits being filed and no exhibits being formally tendered and no transcript being taken of the proceedings.

[20] However, in view of the decision that I have ultimately reached in this matter, it is not necessary to decide this question. 28 The respondent submitted that the better view is that the Industrial Court's jurisdiction under s 55 involves a search for error in the decision of the Appeal Panel. That is, the jurisdiction involves a rehearing of the case within the third general category of 'appeals' discussed in Fox v Percy (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at [20] (references omitted): Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu , where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word "rehearing". The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term "appeal", or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case. 29 The respondent noted that at [27] of the joint judgment in Fox v Percy, when discussing the nature of the jurisdiction of the Court of Appeal under s 75A of the Supreme Court Act 1970, the Court made it clear that an appeal by way of a rehearing involves a search for error: Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

30 It was submitted that such a 'rehearing' does not involve a completely fresh hearing by the Court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits: Fox v Percy at [22]. 31 Reference was made to Allesch v Maunz (2000) 203 CLR 172 where the High Court considered the difference between a rehearing and a hearing de novo (at [23]): For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. 32 Mr Dixon submitted the starting point in resolving an issue of statutory interpretation was the text of the legislation: Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 at [68]. It was submitted the textual and contextual factors which inform the proper construction of s 55 include, inter alia, the following: (i) Subsection 55(1) provides that an appeal may be made, but only by leave of the Industrial Court. Leave would not typically be required in the parties were to start afresh ( de novo ); (ii) The provisions in s 54 which expressly provide for a "new hearing" before the Appeal Panel are not reproduced in s. 55 of the Act; (iii) The decision of the Industrial Court is intended to be 'final': s 55(4); (iv) The reference to 'function' in s 55(3) must be understood in light of s 64 of the Act, and does not mean that the appellate jurisdiction of the Court is the same as that of the Appeal Panel; (v) Any construction which involves a hearing de novo under s 55 would lead to a result that a party could conceivably have three fresh attempts at running its case. It is difficult to discern any policy basis for such a legislative outcome; (vi) Any specialist input from Appeal Panel members would be lost on a new hearing before the Commission: see clause 11 of the Apprenticeship and Traineeship Regulation 2005 ; NSW Legislative Council Hansard of 10 May 1989 at p 7878; 11 May 1989 at p 8090; (vii) Previous decisions of the Commission have made clear that the members of the Appeal Panel are compellable witnesses if hearings are treated as de novo: see Ryan v NSW DET [2006] NSWIRComm 178 (26 June 2006) at [86]; cf R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36; Iain Charles McFarlane Smith v Appeal Panel under the Industrial and Commercial Training Act 1989 [1999] NSWIRComm 14 (29 January 1999) per McKenna C. That is a situation which should be avoided; (viii) The fact that s 55(3) provides that the Commission is not bound by the rules of evidence but may inform itself in any manner it thinks fit is not fatal to the conclusion that the appeal is by way of rehearing: see ss 163 and 191 of the Industrial Relations Act 1996; (ix) Review of decisions of administrative bodies which involves the search for error may nevertheless involve the receipt of fresh materials (as in s 55(3)(b)) not before the original decision maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419; (x) A determination by the Tribunal and the Appeal Panel is intended to be reduced to writing: see for example ss 51(6), (7); 52(2)(a) of the Act; cf s 38 of the Act; (xi) The fact that a single member of the Court is exercising appellate jurisdiction is not fatal to the posited construction: see for example s 194 of the Industrial Relations Act which contemplates appeals to single members of the Commission: Ski Industry (State) Award and Another Award [1999] NSWIRComm 224 (14 May 1999) .

33 Mr Dixon submitted these factors militated in favour of a construction of s 55 which provides for an appeal by way of rehearing in which the Court is (only) able to exercise its jurisdiction upon the establishment of an appealable error. Once error is identified, the Court is able to exercise the broad powers conferred under the Act to correct the error and dispose of the matter: Fox v Percy at [44].

34 Counsel observed that prior to the introduction of the Industrial and Commercial Training Act in 1989, matters relating to apprenticeships and trainees were within the jurisdiction of the Industrial Commission of New South Wales under the Industrial Arbitration Act 1940. The Industrial and Commercial Training Bill as introduced in Parliament and the Second Reading by the Hon E P Pickering in the New South Wales Legislative Council (Hansard, 10 May 1989 at p7869), reflected the then Government's intention to codify matters relating to apprentices and trainees in the one statute. There was to be no role for the former Industrial Commission. The motive of the Government, it was submitted, was to separate 'training matters' from 'industrial matters'. However, as a result of amendments moved by the then Opposition, certain appeal rights were inserted by amendment in the committee stages. The intent underlying the amendment (that is, whether it was intended to provide for an appeal by way of rehearing) was not readily apparent from the debate, it was submitted. The right of appeal so inserted survived to become s 88 of the Industrial and Commercial Training Act 1989: see Iain Charles McFarlane Smith v Appeal Panel under the Industrial and Commercial Training Act 1989 [1999] NSWIRComm 14.

35 Counsel for the respondent submitted that s 88 of the 1989 Act was changed, arguably significantly, in 2001. In the Second Reading Speech introducing the Bill which became the 2001 Act, Mr J Aquilina, the then Minister for Education and Training, stated as follows: The functions of the tribunal and appeals panel remain the same as under current legislation. Taking into account the strong views of many during consultation, I can confirm that right of appeal by leave to the Industrial Relations Commission will be retained.

36 It was submitted that the changes to the Act in 2001 including: (i) the introduction of the need for leave to appeal; (ii) the introduction of the reference to the Commission in Court Session; and (iii) the removal of the analogy to 'determination of industrial matter', together represented a change of significance to the structure of the 1989 Act. Submissions for the appellant 37 Mr Priestley for the appellant submitted that the proper interpretation of s 55 of the Act dictated that this was not the type of appeal that needed to identify an error to be successful. This is demonstrated by the provisions of s 55(3). By that provision, the Commission may exercise any function that could have been exercised by the Appeal Panel. It was submitted that included the functions available to the Appeals Panel pursuant to s 54, including s 54(2), so that the Commission may exercise the function of conducting a new hearing and may take in fresh evidence or fresh information. If the Commission was to exercise the functions of the Appeal Panel then it certainly would not need to find error, it was submitted.

38 Even if the foregoing was not accepted on the basis of the matter being a new hearing, then the decision of Staff J in Topman supported the view that error need not be found. Whilst his Honour did not ultimately decide the question in that case, his leanings were fairly clear, counsel submitted. At [16] and [17] the following authorities were cited, with the conclusion being, it was submitted, that on an appeal such as the present, no error need be found: [16] In Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 the High Court gave consideration to the approach to be adopted in relation to an "appeal". Gleeson CJ, Gaudron and Hayne JJ held at [13]: If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing. [17] In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621-622, Mason J, with whose judgment Barwick CJ and Stephen J agreed said: Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo , although there is no absolute rule to this effect...

39 Mr Priestley submitted it was notable that there was no express provision in s 55 that required an error of law to be found. Reference was also made to Fox v Percy at [20] quoted above. 40 Counsel concluded by submitting that given the breadth of the powers s 55 provides to the Court and given the informality that the Act seeks to promote, these were factors that pointed in favour of this not being a case where error needs to be found. CONSIDERATION

41 The respondent contended that the Industrial Court's jurisdiction under s 55 of the Act involves a search for error in the decision of the Appeal Panel and involves a rehearing of the case within the third general category of 'appeals' discussed in Fox v Percy, namely, an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so. The appellant contended the appeal was a hearing de novo, that is, the matter is heard afresh and a decision is given on the evidence presented at that hearing. 42 The question is whether an appeal to the Industrial Court from the Appeal Panel is an appeal: (i) in the strict sense where the court's function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal: Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [12]; or (ii) by way of rehearing whereby the appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance: Coal & Allied at [13]; or (iii) by way of a hearing de novo whereby the matter is heard afresh and a decision is given on the evidence presented at that hearing: Coal & Allied at [13]. 43 In Coal & Allied at [14] the Court (Gleeson CJ, Gaudron and Hayne JJ) stated (references omitted): Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance. 44 As Fox v Percy confirms, an appeal is a creature of statute and the nature of the appeal is a matter of statutory construction in each case. 45 As to the statutory provisions that are relevant in these proceedings: (i) section 55(1) provides that an appeal may be made, but only by leave of the Industrial Court; (ii) the provisions in s 54 which expressly provide for a 'new hearing' before the Appeal Panel are not reproduced in s 55 of the Act; (iii) the Court may exercise any function that could have been exercised by the Appeal Panel in making the determination the subject of the appeal: s 55(3)(a); (iv) section 55(3)(b) provides that the Court is not bound by the rules of evidence but may inform itself in any manner it thinks fit; (v) the decision of the Industrial Court is intended to be 'final': s 55(4); (vi) the Appeal Panel is constituted by at least four persons appointed by the Director General and must consist of at least a public servant employed within the Department, at least one person appointed to represent registered training organisations, at least one person appointed to represent employers, and at least one person appointed to represent employees (s 62); (vii) the Appeal Panel is not bound by the rules of law governing the admission of evidence but may inform itself on any matter in such manner as it thinks fit (s 44(1)); (viii) A hearing must be conducted with as little formality and legal technicality as the circumstances of the case permit (s 44(2)); (ix) A hearing must be conducted in the absence of the public (s 44(3)); (x) the Appeal Panel may from time to time adjourn a hearing to such time, date and place, and for such reasons, as it considers fit (s 44(4)); (xi) A party to a complaint is not entitled to be represented by an Australian legal practitioner except with the consent of the Appeal Panel and of each of the other parties to the hearing. However, the Crown, an industrial organisation and a corporation may be represented by a legal practitioner and where that is so any of the other parties to the hearing is entitled to be represented at the hearing by a legal practitioner (s 45); (xii) The presiding member: (a) may require a person: (i) to attend a hearing for the purpose of giving evidence, or (ii) to produce to the Appeal Panel any document that is relevant to a hearing,

at a time, date and place specified in a notice served on the person, and

(b) may require a person who attends a hearing to be sworn for the purpose of giving evidence on oath, and

(c) may administer an oath to a person who attends a hearing for the purpose of giving evidence (s 46). (xiii) The presiding member may require a person who attends a hearing to answer any question that is reasonably related to the hearing. A person may refuse to answer a question on the ground that the answer might tend to incriminate the person (s 47(1) and (2)); 46 In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621 Mason J (with whose judgment Barwick CJ and Stephen J agreed) stated: The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo. On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance. But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing. 47 The nature of the proceedings before the Appeal Panel fits more comfortably with the first description supplied by Mason J in Sperway Constructions. A hearing before the Appeal Panel must be conducted with as little formality and legal technicality as the circumstances of the case permit. The Appeal Panel is not bound by the rules of law governing the admission of evidence. The Appeal Panel may inform itself on any matter in such manner as it thinks fit. A hearing must be conducted in the absence of the public.

48 In the same case, Jacobs J referred to the court's discretion in determining the scope of the appeal. His Honour said at 629: In the absence of statutory provision or of rules governing the procedure of established practice, the adoption of one or another of the courses open, a rehearing de novo or a rehearing on the material before the person or body from whom the appeal is brought with the reception of further evidence, involves the exercise of a judicial discretion applying principles of fairness and reasonableness. The procedure adopted will depend largely on the nature of the appeal - whether it is from an administrative tribunal on a question of fact, or the decision of a judicial tribunal on such a question. It will also depend upon the questions in issue in the appeal. Moreover, it may be fair to allow a respondent in the tribunal at first instance to produce further evidence but it may not always be fair to allow the moving party to reframe the case which he made before the tribunal at first instance, a principal of fairness which recalls the old Chancery rules which I have explored. 49 In Dare v Dietrich (1979) 26 ALR 18 the Federal Court considered an appeal from the decision of an arbitrator acting under the Workmen's Compensation Ordinance 1949 (NT). Section 26 of the Ordinance provided that an appeal may be on a question of law or fact or both and 'may be in the nature of a re-hearing'. Section 6D of the Ordinance provided that, subject to the Ordinance, the Tribunal's procedure was within its own discretion, that the Tribunal will act without regard to technicalities and legal forms and that the Tribunal is not bound by the rules of evidence 'but may inform itself on any matter in such manner as it thinks fit'. 50 In holding that the rehearing may be a hearing de novo, Deane J (with whom Muirhead and Lockhart JJ agreed) observed at 32-33: Section 6 D of the Ordinance provides that, subject to the Ordinance, the Tribunal's procedure is within its own discretion, that the Tribunal will act without regard to technicalities and legal forms and that the Tribunal is not bound by the rules of evidence "but may inform itself on any matter in such manner as it thinks fit". These provisions make it clear that, while the Tribunal is, no doubt, under an obligation to act with judicial detachment and fairness, the proceedings before the Tribunal are not governed by the ordinary principles relating to the determination of disputed questions of fact by a judicial tribunal. They confirm that the appeal to the Supreme Court from a decision of the Tribunal calls for an exercise of original jurisdiction by the court and was intended, where disputed questions of fact are involved, to provide for a judicial review, conducted in accordance with those ordinary principles, of the decision of the Tribunal. The statement in s 26 of the Ordinance that "the appeal may be in the nature of a re-hearing" should not be construed in a narrow technical sense as meaning no more than that the appeal is to be determined as at the date of its hearing. The statement should be construed as conveying that the re-hearing may be a hearing de novo upon which it is for the Supreme Court to pronounce anew on the rights of the parties as disclosed by the evidence before it (see generally, Phillips' case, supra).

As the use of the word "may" indicates, this does not mean that it will be necessary or desirable in every case for the parties to present their evidence afresh to the Supreme Court so that the appeal may be a re-hearing de novo in every sense. Where questions of law or inferences from undisputed facts are involved, it may well be both convenient and appropriate for the evidence before the Supreme Court to consist of the record (if there be one) of proceedings before the Tribunal.

51 In my opinion, an appeal from the Appeal Panel to the Court could not be an appeal in the strict sense where the court's function is limited to determining whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given. Nor is it a rehearing on the evidence at first instance supplemented by further evidence admitted on appeal. 52 On appeal, the Court may exercise any function that could have been exercised by the Appeal Panel in making the determination the subject of the appeal and may inform itself in any manner it thinks fit. The term 'function' is defined in the Dictionary of the Act as including 'power, authority and duty'. Such a function includes the taking of fresh evidence or fresh information. The decision of the Court is final and is to be given effect to as if it were the decision of the Appeal Panel. There are no limitations upon the nature of the appeal in the Act and the powers of the Court in disposing of the appeal are wide.

53 Section 55 of the Act effectively places the Court in the position of the Appeal Panel. In my opinion, an appeal from the Appeal Panel is a hearing de novo, consistent with what Deane J found in Dare v Dietrich. It follows that there is no requirement for the Court to find error. 54 The appellant relied on the fact that leave is required and that leave would not typically be required if the parties were to start afresh. I do not think that necessarily follows. No authority was cited in support of the proposition. The requirement for leave was explained by Deane and Gaudron JJ in Coulter v The Queen [1988] HCA 3; (1988) 164 CLR 350 at 359: The requirement that leave or special leave be obtained before an appeal will lie is a necessary control device in certain areas of the administration of justice (e.g. appeals to a second appellate court) in this country. As a filter of the work which comes before some appellate courts, it promotes the availability, the speed and the efficiency of justice in those appeals which are, in all the circumstances, appropriate to proceed to a full hearing before the particular court. It also represents a constraint upon the overall cost of litigation by protecting parties, particularly respondents, from the costs of a full hearing of appeals which should not properly be entertained by the relevant court either because they are hopeless or, in the case of a civil appeal to a second appellate court, because they do not possess special features which outweigh the prima facie validity of the ordinary perception that the availability of cumulative appellate processes can, of itself, constitute a source of injustice. In these circumstances, it is neither surprising nor regrettable that the application for leave or special leave to appeal has, in this country, become a generally accepted and standard part of ordinary curial procedures. In a case such as the present where the application for leave to appeal was from a criminal conviction or information to a first court of appeal exercising general supervisory appellate jurisdiction, the requirement of leave effectively represents no more than a means of efficiently disposing of prospective appeals which would obviously fail since it is difficult to envisage circumstances where a competent application for leave to appeal to such a court could properly be refused in a case where the conviction should be set aside if leave were to be granted and the appeal were to proceed to a full hearing.

On the other hand, the application for leave or special leave to appeal commonly possesses a number of special features which set it apart from at least some other judicial proceedings. First, it involves the exercise of an extremely wide judicial discretion. Second, and notwithstanding that refusal of the application ordinarily involves the final determination of the particular litigation, that wide discretion can commonly be exercised without the provision of detailed or, sometimes, any reasons. Third, if the application is to the court which will hear the appeal if leave is granted, there is a risk that the ordinary appearance of judicial disinterest in the outcome of proceedings may be, albeit wrongly, seen as qualified in that the workload of what will ordinarily be an already overburdened bench will vary according to the number of successful applications. Fourth, it is inevitable that a refusal of leave will be sometimes seen by an unsuccessful applicant as a decision to close the doors of the court in his face rather than as an examination and reasoned rejection of his claim that he has been the victim of a miscarriage of justice in the court or courts below. The effect of these special features of judicial proceedings dealing with applications for leave to appeal is not to lessen the importance of the ordinary safeguards of the administration of justice. To the contrary, the effect is to emphasize the importance that they be observed. Among those safeguards is the ordinary rule that judicial proceedings should take place in open court (see, e.g., Scott v. Scott [1913] AC 417, at pp 476-478; Dickason v. Dickason [1913] HCA 7; (1913) 17 CLR 50, at p 51; McPherson v. McPherson (1936) AC 177, at p 200; Rex v. Hamilton (1930) 30 SR (N.S.W.) 277, at p 278; Russell v. Russell [1976] HCA 23; (1976) 134 CLR 495, at pp 520, 532; Attorney-General v. Leveller Magazine Ltd. [1979] AC 440, at p 450). 55 Nothing in what their Honours there said suggests that the purpose of leave is only to allow the appeal court the opportunity to search for error and if error is found to refuse leave. Leave is a device that acts as a filter, and is quite appropriate in the circumstances here because there has already been one appeal, that is to the Appeal Panel. Leave allows the Court to consider whether the appeal is hopeless or whether, for instance, there is a public interest to be served in allowing the appeal. 56 In expressing the opinion as I do that the appeal is a hearing de novo, I am conscious of the fact that an appeal would constitute the third hearing of the matter. Nevertheless, there is the very wide judicial discretion to refuse leave if there is no proper basis to grant leave. Further, although parties to the appeal would be entitled to adduce fresh evidence, it may be possible that the parties are able to agree that the evidence before the Tribunal, or some of it, be tendered as evidence upon the appeal, thereby abbreviating the appeal process.

57 I note also what Deane J said in Sperway Constructions: As the use of the word "may" indicates, this does not mean that it will be necessary or desirable in every case for the parties to present their evidence afresh to the Supreme Court so that the appeal may be a re-hearing de novo in every sense. Where questions of law or inferences from undisputed facts are involved, it may well be both convenient and appropriate for the evidence before the Supreme Court to consist of the record (if there be one) of proceedings before the Tribunal.

58 Similarly, s 55(3)(a) provides that the Court 'may exercise any function that could have been exercised by the Appeal Panel…', which suggests that it will not be necessary in every case that the appeal is a hearing de novo in every sense. 59 Finally, the Court should make it clear that leave to appeal is granted in this matter. ORDERS

60 On 13 October 2009, the following orders were made by consent and are now confirmed: 1. The determination and orders made by the Vocational Training Appeal Panel on 14 November 2008 is hereby set aside.

2. The determination and orders made by the Vocational Training Tribunal on 25 July 2008 is hereby set aside.

3. That the appellant be marked a 'High Risk Employer' for a period of 12 months commencing on the date hereof and expiring on 12 October 2010.

4. That within 28 days of the date hereof the appellant make an application for apprenticeship in relation to Daniel Graveson, date of birth 4 October 1990.

5. The Court notes that the appellant agrees with the respondent on the above orders and consents to, the above orders in consideration of and in reliance on the representation of the respondent, that the respondent shall not bring any complaint or other action in relation to the employment of the said Daniel Graveson provided that order 4 is complied with, the facts of which are in dispute between the parties.

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