Secretary of the Treasury (Department of Justice - Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of NSW on behalf of Richard Woelfl

INTERLOCUTORY DECISION 1The issue for determination in these interlocutory proceedings is the scope of a remitter from the Court of Appeal following that Court's decision in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 ("Woelfl (No 3)"). The remitter is to be heard by the Full Bench on 16 September 2014. However, an issue has arisen between the parties as to its scope and it has been determined that the issue should be decided in advance.

Brief overview 2Mr Richard Woelfl, a correctional officer at Grafton Correctional Centre, was threatened with dismissal after disciplinary charges were laid against him and two other officers. The charges related to misconduct by the officers in allowing a prisoner apparently bashed by his cell-mate to crawl to an adjacent cell; failing to promptly obtain medical assistance for the prisoner; and failing to investigate and establish a crime scene in the cell where the prisoner was originally found. The prisoner eventually died from his injuries. 3The Public Service Association and Professional Officers' Association Amalgamated Union of NSW ("PSA") brought proceedings in the Industrial Relations Commission to challenge the threatened dismissal of the officers: Pearcey and Others and Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 ("Woelfl (No 1)"). Those proceedings found that dismissal would be harsh, unreasonable or unjust and that the appropriate penalty for Mr Woelfl was a demotion. The employer successfully appealed this decision to the Full Bench of the Industrial Relations Commission: Department of Attorney General and Justice - Corrective Services and Richard Woelfl and others [2013] NSWIRComm 73 ("Woelfl (No 2)"). 4The PSA, on behalf of Mr Woelfl, sought judicial review of the Full Bench decision. In Woelfl (No 3) the Court of Appeal held that the Full Bench failed to identify the element of misconduct it regarded as "serious", assess its seriousness and weigh that against the consequences for the applicant of proposed dismissal. The absence of any reference to that essential function by the Full Bench indicated that it was probably not undertaken. The Court of Appeal remitted the appeal and cross-appeal to the Full Bench to be determined according to law.

Woelfl No 1 5In Woelfl (No 1) Harrison DP helpfully summarised his findings regarding Mr Woelfl at [229]-[246]: [229] In July 2011 Mr Schipp advised Officer Woelfl that he was considering dismissal in respect to failure to establish a crime scene and other matters set out above (para 49) and additional charges relating to failure to inspect cell 219. [230] The most serious charge laid against Officer Woelfl is that he was grossly negligent in the performance of his duties in not assisting Mr Klum [the deceased inmate] from cell 219 to cell 225 and leaving him there for eight minutes when it was clear that he required medical attention. [231] I find these allegations not substantiated on the evidence. [232] Mr Klum was offered assistance, which he refused. It became obvious to the Officers present that Mr Klum did not want to be touched. This attitude is consistent with the fear and anxiety Mr Klum told Dr Petroff that he experienced in gaol. [233] It is entirely probable that, had the Officers pressed assistance upon Mr Klum against his will, he may have resisted, making matters worse. [234] The charge of misconduct in leaving Mr Klum in cell 225 for eight minutes is not sustained on the evidence. [235] Officer Woelfl acted immediately to obtain medical assistance for Mr Klum. The fact that he had to telephone for approval and then wait for the nurse to arrive is a matter of Departmental procedure, not the construction of Officer Woelfl. [236] Having regard to the uncontested fact that correctional officers are not permitted to render medical assistance, Officer Woelfl had no option but to call for assistance. [237] The evidence is that calling directly for an ambulance is a rare and unusual event and that the standard operating procedure is to call the nurse. [238] On close examination of the CCTV images of Mr Klum moving from cell 219 to cell 225 it is clear that he was not injured in this process. [239] It is appropriate to make the distinction that Mr Klum was not made to crawl, he was allowed to crawl, and that this was limited to the movement from cell 219 to cell 225. [240] It was entirely reasonable for Mr Klum to be given a brief time in cell 225 to compose himself prior to the next part of the move to the observation cell, which included navigating a stairwell, for which Mr Klum was afforded assistance which by then he was prepared to accept. [241] Officer Woelfl was faced with a difficult set of circumstances and made judgements as he was required to do, which are supportable. [242] The remainder of the charges against Officer Woelfl address the failure to investigate cell 219, establish a crime scene, and reporting of the incident. [243] I accept the evidence of Mr Schipp that all of these matters have their foundation in the failure to make a proper observation of cell 219. [244] As the Senior Officer in charge, Officer Woelfl was responsible for these errors of judgement, none of which I note go to the care and wellbeing of Mr Klum. [245] Failure to investigate, establish a crime scene and report, amounts to misconduct which warrants sanction. This misconduct is not, in my assessment, serious and wilful misconduct warranting termination of employment. [246] The Department has a range of sanctions open to it and of those I determine, having regard to all of the circumstances, including the exemplary service record of Officer Woelfl, that demotion to a lower grade is the appropriate penalty. 6The Deputy President made the following order under s 89(7) of the Industrial Relations Act 1996 ("IR Act") in relation to Mr Woelfl: (3) In Matter No IRC 12/506 the Department of Attorney General and Justice - Corrective Services shall not terminate the employment of Officer Richard Woelfl arising from the events subject to these proceedings. Mr Woelfl is to be returned to employment as a Corrective Services Officer with the Department of Attorney General and Justice - Corrective Services at Grafton Correctional Facility subject to demotion to a lower grade.

Woelfl No 2 7In Woelfl (No 2) Walton J, Vice President relevantly found as follows: [81] From the original allegations, the Department found three sets of charges made out against officer Woelfl (see [42] above). The Department also found the further allegations were established. In substance, Harrison DP found the charges concerning the investigation and establishment of and reporting upon a crime scene were made out and constituted misconduct (the PSA challenged these findings in the cross-appeal but at the hearing of the matter discontinued those grounds). His Honour rejected the charges concerning movement between cells 219 and 225 and obtaining medical assistance. [82] I do not accept the submissions of the PSA to the effect that the test of 'serious and wilful misconduct' did not govern his Honour's disposition of Officer Woelfl's application. His Honour drew a distinction between 'misconduct' and 'wilful and serious misconduct' (in [245] of his decision) and applied the latter test in adjudicating upon Officer Woelfl's application to restrain his dismissal. [83] The PSA contended that, in truth, his Honour concentrated upon whether the officer had engaged in misconduct in [245] of his decision because it was this expression he employed in the first sentence of that paragraph (in which he referred to Officer Woelfl's failures). However, this submission cannot be accepted. The Deputy President expressly found that the conduct of Officer Woelfl should not warrant dismissal because, even though it was considered 'misconduct', it did not satisfy the higher test of 'serious and wilful misconduct'. The conclusion at [245] of the decision at first instance was central to Deputy President Harrison's adjudication with respect to the application made on behalf of Officer Woelfl. It was attended by appealable error in two respects. First, whilst it was relevant for his Honour to consider whether Officer Woelfl had engaged in misconduct, for the purposes of considering the application brought under s 89(7), the erection of a test, in this respect, as to whether the conduct constituted serious and wilful misconduct was erroneous (for reasons earlier discussed). Secondly, the distinction drawn by the Deputy President between 'misconduct' and 'serious and wilful misconduct' was the fulcrum upon which his Honour made orders restoring Officer Woelfl's employment to a demoted position, a decision which was beyond power. [84] What the Deputy President was required to do was to evaluate whether, notwithstanding the misconduct found, he may, nonetheless, find that the threatened dismissal of Officer Woelflwas harsh, unreasonable or unjust. I do not consider the Deputy President properly made that assessment. Whilst he did identify the unproven misconduct concerning the movement of Mr Klum and his medical assessment were the more serious charges, he did not evaluate the gravity of the proven misconduct or why, given its significance, a finding activating relief under s 89(7) should be made. This is because he was misled, in the exercise of his power, between the false dichotomy (for the purposes of his adjudication) of 'misconduct' and 'serious and wilful misconduct'. [85] This constitutes, in my view, a firm basis upon which leave may be granted to appeal and the appeal from the decision of Harrison DP upheld. [86] I do not consider there is any proper basis to, nonetheless, reach a conclusion that orders should be made in favour of Officer Woelfl under s 89(7). After close examination of the DVD of CCTV footage and the evidence in the proceedings as to Officer Woelfl's conduct, I have come to that view for three reasons:

1. The misconduct of Officer Woelfl was serious on its face;
2. The officer held a senior position in the Department and his misjudgments were fundamental to the discharge of his duties;
3. Whilst I agree that it is mere speculation that a different course of conduct by Officer Woelfl may have improved Mr Klum's prospects for survival, it is clear that proper adherence to procedure would have been more consistent with the duty owed by the Department to Mr Klum including ensuring proper and (in this case) more urgent medical treatment. [87] As to the cross-appeal concerning Officer Woelfl, whilst the grounds concerning the imposition of conditions were technically made out, given the conclusion I have reached in relation to the Department's appeal, I propose to grant leave to appeal but dismiss the appeal. 8Walton J proposed the following orders regarding the disposition of the appeal and cross-appeal insofar as it concerned Mr Woelfl: 1. In Matter No IRC 1226 of 2012: a) Leave to appeal is granted; b) The appeal is upheld; c) Order (3) in paragraph [265] of Pearcey v Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 is set aside. ... 5. In Matter No IRC 1244 of 2012: a) Leave to appeal is granted; b) The appeal is dismissed. 9Staff J agreed with the reasons for decision and orders of Walton J. Haylen J dissented in relation to the orders proposed regarding Officer Woelfl. His Honour found as follows: [103] What were the officers faced with when they went to the cell after Klum had raised the "knock-up" call? When asked about why he had made the call, Klum said that he was sick and when asked what was wrong he said he was bleeding from his mouth and nose, spinning out and could not get up. The evidence establishes the following: at knock-up, there was a only a small amount of blood on Klum; the injuries appeared to be superficial and did not suggest a serious assault; it appears that Klum had the presence of mind to wash himself and to put his jumper on; Klum did not disclose at that point that he had been the subject of an assault, nor that he had been bleeding profusely; Klum did not contest what was said by Johnson, nor did he ask to be kept away from Johnson; the nurse's observations made sometime after Klum was removed from the cell reported his injuries as a small laceration to the right eyebrow; it was only sometime after, whilst in observation and before the ambulance arrived, that Klum indicated that he wished the matter reported to the Police; in the observation area, Klum was considered to be coherent and was able to walk "unaided" and participate in conversation with officers taking reports as well as with ambulance staff; Klum participated in an incident report during which he required a police investigation into the events of the night, but made no specific complaint about Correctional Officers. [104] In the light of these matters, the following conclusions were reached: the Deputy President's consideration of the medical records indicated that they recorded only a minor incident based on the observations recorded by the nurse; the Deputy President formed the view that the charges in respect of reporting were substantially based on the view that the event was reported as a minor event when it should have been given significant event status; from the evidence, the Deputy President found that Klum had functional capacity referring to the fact that the prisoner had put on his jumper for the move to the other cell. That conclusion is also supported by the fact that he had washed himself and therefore potentially decreased the amount of blood on him that was visible, or able to be seen by the officers when they came to the cell; the Deputy President concluded that Woelfl was faced with a difficult set of circumstances and made judgements, as he was required to do, which were supportable. That conclusion was made specifically in relation to moving Klum to the observation cell and the assistance Klum was finally given when he was prepared to accept it when moving down the stairwell to the observation area. [105] The officers gave evidence of a reluctance to enter a cell, especially at night on a knock-up call. Woelfl and the other officers had been subjected to assaults during their career and it is not unreasonable that they would be cautious, if not suspicious, of a knock-up call in the early hours of the morning. The Deputy President accepted that Klum had rejected an offer of assistance from another officer when he crawled across the floor to a nearby cell after being removed from the cell occupied by Johnson and himself. A decision was promptly made to call the nurse but there was no nurse on duty (due to a management decision) and the nurse had to be called in. Apparently, only the nurse could order an ambulance. [106] There were then the personal matters to be considered concerning Officer Woelfl. They included: the officer had commenced employment in April 1986 and had 24 years unblemished service; he had been awarded an Exemplary Conduct Medal for Bravery in January 1990. He had been involved in an inmate stabbing incident and had been assaulted a number of times by prisoners and was aware of the risks of entering a cell; he had acted as an Assistant Superintendent and a Senior Assistant Superintendent on numerous occasions; the Deputy President found his service record demonstrated his good character and his character was supported by two witnesses whose evidence was not challenged; during the period of his suspension, he had lost thousands of dollars by being unable to participate in overtime and other work attracting penalty rates. [107] This recitation of events and personal history was a strong part of Officer Woelfl's case. On an overall consideration of the matter he appears, at most, to have made an error of judgement for which he has already paid dearly: with the benefit of hindsight he might have taken steps to examine the cell. More realistically, there was nothing about the circumstances that suggested that Klum had been the subject of a brutal attack by his fellow cell-mate. In all the circumstances, it is difficult to see that any error of judgement was sufficiently serious to warrant termination. For reasons already canvassed in the Vice President's decision, the condition placed on the return to work of Officer Woelfl (the demotion) was beyond jurisdiction.

Woelfl No 3 10Basten JA delivered the principal judgment in Woelfl (No 3), Ward JA and Bergin CJ in Eq agreeing. At [62]-[71] his Honour stated: [62] In the first of his brief reasons, Walton J categorised the misconduct of the officer as "serious on its face": at 86. Complaint was made that this proposition failed to identify which element of the misconduct accepted by the single member was being relied on. This omission was significant, the applicants submitted, because it was necessary for it to be balanced against mitigating factors. [63] The second reason involved two elements: the first was that the officer held a "senior position" in the Department. So he did, in the sense that he was the senior officer on duty at Grafton prison at the time of the events leading to Mr Klum's death. The second element was the reference to Officer Woelfl's "misjudgments" which were described as "fundamental to the discharge of his duties". An issue was raised as to the use of the term "misjudgments", on the basis that they too were not identified with precision and did not accord with a finding of "misconduct". It is true that they were not clearly identified, but read in context, namely that they were fundamental to the discharge of the officer's duties, the term should be understood as referring to the misconduct of a serious kind referred to (although not specified) in reason (1). The fact that the elements of misjudgement were not identified may demonstrate the inadequacy of the reasons: it does not necessarily demonstrate that the judge had misunderstood either the evidence, the issues or the statutory test. [64] The third reason was the subject of careful scrutiny. The applicants submitted that there was no identification of the "procedure" which had not been adhered to, in circumstances where the facts revealed that departmental procedures had been adhered to, to the letter. Further, whereas the Department undoubtedly owed a duty to Mr Klum with respect to his health and safety following an apparent attack upon him, the inference that Officer Woelfl had failed in his duty to obtain timely medical assistance had been rejected by the single member. [65] Finally, the applicants complained that Walton J failed to discuss the elements of the tripartite test and, in particular, failed to refer to the subjective elements which might have rendered dismissal harsh, unreasonable or unjust, such as Mr Woelfl's long service and "exemplary service record", which were relied on by the single member in determining that the appropriate penalty was demotion. [66] There is some irony in the complaint that Walton J did not identify the terms of the misconduct held to be "serious on its face" and failed to address aspects of Mr Woelfl's long service and "exemplary service record", which would have been relevant to determining whether the statutory test was satisfied. The irony lies in the fact that it was a similar failure on the part of the Deputy President which led the Full Bench to intervene. However, even if that error were made good, it would be necessary to determine whether it constituted jurisdictional error. [67] These challenges, cumulatively, have substance. On one view, the critical findings supporting the seriousness of Mr Woelfl's conduct were those set out at [21] above: the other adverse findings followed from them. Thus, the failure to establish a crime scene resulted directly from the failure to investigate the cell, because it was primarily such an investigation which should have led to the conclusion that a serious crime may have been committed and to the incident being reported: see single member at [242]. Indeed, such an investigation might also have supported what was described by the single member as the "most serious charge" against Officer Woelfl, namely not assisting Mr Klum from cell 219 to cell 225. The knowledge of blood loss would have suggested that Mr Klum was not feigning injury, would have warranted the conclusion that he was crawling because he was unable to walk, would have suggested the need to call an ambulance immediately and would have provided important information to be supplied to whichever medical service attended first. [68] These further conclusions were not drawn and there was no challenge to the failure to draw them. Nevertheless, it is clear from this material that the misconduct comprised in the finding of failure to investigate was properly described as "serious", although precisely why called for articulation. Despite lengthy sections in the reasons setting out the history of the various charges and the findings made by the single member, at no point did Walton J set out the findings quoted at [21] above. Had that been done, and had the relevant element of the misconduct been identified, it would have been open to infer that those matters led to the conclusion that the first charge at least was "serious on its face". [69] Not only was that material not referred to, but the omission was compounded by the reference in the second reason to "misjudgments" and in the third reason to a lack of "adherence to procedure". The failure to investigate, which was the subject of a "further allegation", did not in its terms allege a failure to follow procedure, but breach of duty of care to the prisoner. However, on the findings of fact, it can only have been that duty which could have resulted in "more urgent medical treatment" and been consistent with the duty owed by the Department to Mr Klum. [70] Even if it might properly be inferred from the somewhat scant references in the reasons that Walton J identified the serious misconduct in the way suggested above, that was only part of the exercise required in determining the availability of relief under s 89(7). It was also necessary to weigh in the balance any "mitigating circumstances": Electricity Commission of NSW (Pacific Power) v Krump [1993] NSWIRComm 30 (Fisher P, Hungerford J and Connor CC). The length of prior employment, the employment record and favourable character considerations may all be relevant to determining whether relief should be granted. Further, in reaching a final determination, it was necessary to consider separately the possibility that dismissal might be "harsh", although not unjust or unreasonable: Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410 at 465 (McHugh and Gummow JJ). Noting that in many cases the concepts will overlap, McHugh and Gummow JJ also pointed out that termination of employment "may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." [71] Despite the fact that the Full Bench intervened because it determined that the single member had not addressed the correct issue, and despite the fact that it had, in broad terms, identified the questions to be determined, there must have been a real issue as to whether, given Mr Woelfl's long and favourable record, the misconduct in the present case was sufficient to warrant termination. The absence of any reference in the reasons to the long and favourable record of service suggests that the necessary weighing exercise was not undertaken. There may have been a subconscious concern that it would be quite unsatisfactory for an apparently avoidable death in custody to have occurred and yet no one be held responsible. That is not to suggest that some such false reasoning was explicitly adopted, but only to identify a possible explanation for the apparent absence of focus on the critical questions. What is clear is the need to identify the element of misconduct and assess its seriousness and weigh that against the consequence of proposed dismissal. The absence of any reference to that essential exercise indicates that it was probably not undertaken. 11In his conclusions Basten JA stated: [72] In these circumstances, the applicants have made good their challenge to the decision of the Full Bench which, accordingly, must be set aside. Because that step is not taken on the basis that the Full Bench erred in intervening, but on the basis that it erred in its redetermination of the matter, the matter should be remitted to the Commission for reconsideration according to law. [73] That leaves a question as to the status of the order of the single member which, in so far as it contains a rider in relation to demotion, cannot stand in its present form. However, there remains a live issue as to whether it should be upheld at all, the appeal of the Secretary remaining undetermined. The better course is for this Court merely to remit the appeal to a Full Bench. The interlocutory regime with respect to Mr Woelfl originally ordered by Boland J in the Commission appears now to be in force by agreement. [74] The Court should make the following orders: (1) Set aside decisions (1) and (5) made on 30 August 2013 by the Full Bench of the Industrial Relations Commission in matters IRC 1226 and 1244 of 2012. (2) Remit the appeal and cross-appeal in those matters to a Full Bench of the Industrial Relations Commission to be determined according to law. (3) Order the respondent to pay the applicants' costs in this Court.

Questions regarding the remitter 12When the remitter came back before Boland AJ for directions, and after the parties made certain submissions, his Honour put four questions to the parties: (a)what is the issue or issues to be determined by the Full Bench arising from the decision of the Court of Appeal, (b)does a question arise as to the relevance of the tripartite test under s 84 in an application under s 89(7), (c)how should the Full Bench be constituted and why, (d)should there be interlocutory proceedings, and if so, what should those interlocutory proceedings deal with? 13The parties responded in writing. As to the first question, the PSA initially submitted: In relation to (a), the Court of Appeal did not disturb the findings of the Full Bench to the effect that Mr Woelfl had engaged in misconduct, but rather found error in the majority Full Bench decision of 30 August 2013 in its approach to assessing the appropriate orders to be made, having regard to the fact that Mr Woelfl had been found to have engaged in misconduct - see paragraph 71 of Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112. In its order the Court of Appeal remitted "...the appeal and cross-appeal in those matters to a Full Bench of the Industrial Relations Commission to be determined according to law". As the only matter identified by the Court of Appeal about which the Full Bench did not make a determination according to law was in relation to the appropriate relief to grant to Mr Woelfl, the only matter that requires redetermination "according to law" is that issue. The PSA referred to Repatriation Commission v Lionel Nation [1995] FCA 1277; (1995) 57 FCR 25 as supporting its position. 14As to the second question, the PSA submitted the Commission was required to consider the tripartite test (harsh, unreasonable or unjust) in considering the substantial merits of the claim, including in relation to whether or not to grant the remedy available under s 89(7). 15As to the third question, the PSA had no issue with the constitution of a Full Bench that did not comprise any of members who sat on the Full Bench in Woelfl (No 2). In that respect, it may be noted two of those members, Haylen J and Staff J, have retired. 16As to the fourth question, the PSA submitted that the first question should be determined in interlocutory proceedings if necessary. 17The Secretary of the Treasury (Department of Justice - Corrective Services NSW) ("appellant") answered the first question as follows: it is apparent that Basten JA was of the view that Walton VP should have spelled out with greater particularity the "misjudgments" to which his Honour was referring at [86(2)] of his decision and why the misconduct should be regarded as serious. The Secretary of the Treasury (Department of Police and Justice - Corrective Services NSW) ("CSNSW") respectfully invites the Full Bench to issue a supplementary decision articulating these matters. ... CSNSW submits that what is required is an articulation of the reasons as to how the Full Bench majority weighed the seriousness of the misconduct committed by Mr Woelfl and the mitigating factors of his employment record and the consequences for him of the proposed dismissal. These matters in relation to Mr Woelfl were expressly referred to in the decision of Harrison DP at [77]-[91]. However, CSNSW notes that the evidence of Mr Woelfl's service record was tendered primarily to support his claims about the dangers of entering a cell and about inmates feigning illness, in order to explain his claim that he thought Mr Klum was pretending to be incapacitated and why he didn't conduct an inspection of cell 219. In his dissenting decision Haylen J, at [106], does refer to Mr Woelfl's service record and character. The majority of the Full Bench, no doubt, considered Haylen J's dissenting decision, and the matters referred to therein, before finalising their own decisions. Staff J addressed the dissenting decision of Haylen J directly. CSNSW respectfully invites the Full Bench to include in a supplementary decision, express reference to Mr Woelfl's service record and the consequences of dismissal for him and how those matters weighed against the seriousness of the misconduct. CSNSW maintains its submission that the seriousness of the misconduct committed by Mr Woelfl was not outweighed by those considerations such as to render the proposed dismissal harsh, unreasonable or unjust. 18As to the second question, the appellant answered it in the negative. It submitted s 89(7) gives the Commission express power to make a final order restraining a particular threatened dismissal. The claim concerned is an application under s 84, substituting for the word "dismissal" the phrase "threatened dismissal". The test, therefore, remained that set out in s 84. The relevance of that test was accepted at all stages of the proceedings. 19As to the third question, the appellant submitted that the Full Bench should be constituted by Walton P, Staff J and one other member (noting that Haylen J and Staff J have retired from the Commission). 20As to the fourth question, the appellant indicated it did not intend to raise any matters of an interlocutory nature prior to the hearing of the substantive issues. 21The appellant observed that at the directions hearing before Boland AJ on 22 April 2014, counsel for the PSA foreshadowed an application to put on some further evidence on the question of the impact on Mr Woelfl personally of dismissal. It was noted his Honour stated that the appropriate course might be to file a motion seeking to have additional evidence received by the Full Bench. The appellant submitted: The notion that further evidence should now be received discloses a fundamental misunderstanding on the part of the PSA with respect to the outcome of the proceedings in the Court of Appeal, which turned entirely upon the adequacy of reasons given by the Full Bench majority in its decision of 30 August 2013. It appears that the PSA believes that the remittal of the matter to a Full Bench of the Commission has opened the way for a complete rehearing of the appeal. CSNSW is strongly opposed to such a course and submits that there is nothing in the Court of Appeal judgment which would warrant the taking of such a course. The issue of further evidence, if pressed by the PSA, should be dealt with on an interlocutory basis. 22Subsequently, the PSA filed a supplementary submission in which it stated it had become apparent that its submissions on the remitter were unsustainable (as, indeed, were those of the employer). The reasons for the change in the PSA's position was expressed as follows: 1. The Court of Appeal was considering only the Full Bench majority decision, and it is Orders 1 and 5 of the majority decision that the Court of Appeal set aside. 2. Notwithstanding this, it is likely that in remitting "the matters" the Court of Appeal intended to remit the matters in their entirety for re-hearing of both appeals. 3. The reference to "those matters" in Order 2 of the Court of Appeal's orders must be a reference to the appeals in their entirety given the way in which "matters" is used in Order 1. 4. Notwithstanding the authority cited in the PSA's submissions filed on 23 May 2014, there are other authorities that have been identified by the PSA to the effect that the use of the word "matter" in remitting means the whole proceedings, not simply the matter litigated in the appeal jurisdiction: see Peacock v Repatriation Commission [2007] FCAFC 156. 5. As in Peacock, the terms of the remittal by the Court of Appeal in this matter are unqualified. See also Leichhardt Council v Roads and Traffic Authority of New South Wales (No 3) [2009] NSWLEC 3. 6. The Court of Appeal's orders use broad language, and have the effect of remitting the appeals in their entirety. 23The appellant responded that up until the PSA filed its supplementary submission the positions of the parties were consistent in that both parties put to Boland AJ that the remittal from the Court of Appeal was limited to the issue of remedy in light of the Court's findings, firstly, that the absence of any reference in the reasons of the Full Bench to Mr Woelfl's "long and favourable record of service suggests that the necessary weighing exercise was not undertaken", and, secondly, that the absence of any reference to the "essential exercise" of identifying the elements of misconduct and assessing its seriousness and weighing that against the consequence of proposed dismissal "indicates that it was probably not undertaken" (Woelfl (No 3) at [71]). 24The appellant submitted the PSA has belatedly formed the view that, having lost on the critical issue of serious misconduct before the Full Bench and before the Court of Appeal, its best forensic advantage lay in having a full rehearing of the appeal before a differently constituted Full Bench. It was submitted there was nothing in the judgment of the Court of Appeal that would support such an outcome. 25The appellant contended that the PSA was wrong in submitting the Court of Appeal "was considering only the Full Bench majority decision, and it is Orders 1 and 5 of the majority decision that the Court of Appeal set aside." It was observed the Court of Appeal gave specific consideration to the dissenting decision of Haylen J at [35]-[36] of its judgment. 26The appellant further submitted that despite the clear statement made by the Court of Appeal that the decision by the majority of the Full Bench that Harrison DP committed appellable error was open to it, the PSA now seeks to pursue a course that would necessarily require a reopening of that very decision. This was not a course that is now open to the PSA, regardless of the composition of the Full Bench that will deal with the remittal. 27The appellant referred to the PSA's contention that "it is likely that in remitting 'the matters' the Court of Appeal intended to remit the matters in their entirety for rehearing of both appeals". In support of this proposition, the PSA cited [72]-[74] of Woelfl (No 3). It was submitted those paragraphs do not assist the PSA: The reference to "these circumstance" in paragraph 72 of the Court of Appeal judgment is a reference to the previous paragraph 71 in which the Court made its limited finding of jurisdictional error, confined as it was to the suggest (sic) and/or probable failure of the Full Bench to weigh against the seriousness of Mr Woelfl's misconduct, his long and favourable record and the consequence of proposed dismissal. It follows, therefore, that the remittal to the Full Bench is confined to correcting this jurisdictional error by weighing the seriousness of the misconduct against these two factors. 28The appellant submitted the authorities relied upon by the PSA of Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256 ("Peacock (No.2)") and Leichhardt Council v Roads and Traffic Authority of New South Wales (No 3) [2009] NSWLEC 3 did not assist the PSA. 29Additionally, the appellant submitted the PSA was estopped from re-agitating the findings made by the Full Bench majority except on the limited basis set out in the judgment of the Court of Appeal: see Allchin v Commissioner of Police [2009] NSWIRComm 113. It was further submitted that s 179 of the IR Act prevented these findings from now being called into question: Tempo Services Ltd v Strezouski [2005] NSWIRComm 329; (2005) 146 IR 411. Further, that: The Court of Appeal has, in this case, confirmed that the Full Bench majority's finding of appellable error on the part of Harrison DP attracts the protection of s.179 (Court of Appeal judgement at [33]). Similarly, the findings of the Full Bench majority set out at paragraph 35(ii) above are, subject to what is said below, also protected by s 179. CSNSW accepts that s 179 does protect jurisdictional error (Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010)). However, the limit of the Court of Appeal's finding of jurisdictional error on the part of the Full Bench was that the absence of any reference in the reasons of the Full Bench to Mr Woelfl's "long and favourable record of service suggests that the necessary weighing exercise was not undertaken" and, secondly, that the absence of any reference to the "essential exercise" of identifying the element of misconduct and assessing its seriousness and weighing that against the consequences of proposed dismissal "indicates that it was probably not undertaken" (Court of Appeal judgment at [71]). This finding of jurisdictional error does not disturb the findings of the Full Bench majority...and does no more than require the Full Bench, on remittal, to undertake the weighing exercise which the Court of Appeal has assumed was probably not undertaken.

Appeal and cross-appeal 30At the outset, we need to make it clear that the Full Bench in Woelfl (No 2) had before it an appeal by the Secretary of the Treasury (Department of Attorney General and Justice - Corrective Services NSW) against the decision of Harrison DP in Woelfl (No 1) (Matter No IRC 1226 of 2012) and a cross-appeal by the PSA (Matter No IRC 1244 of 2012). 31In the cross-appeal it was asserted that the Deputy President had erred in making findings of misconduct against Mr Woelfl and in making an order demoting Mr Woelfl. 32In relation to the cross-appeal as it affected Mr Woelfl, Walton J determined that: [87] As to the cross-appeal concerning Officer Woelfl, whilst the grounds concerning the imposition of conditions were technically made out, given the conclusion I have reached in relation to the Department's appeal, I propose to grant leave to appeal but dismiss the appeal. 33Thus, given Walton J had determined in the appeal that Mr Woelfl was guilty of misconduct and there was no basis to make orders under s 89(7), his Honour dismissed the cross-appeal.

Issue for determination 34The issue to be determined in these interlocutory proceedings is, as we have indicated, the scope of the remitter. That is, whether the remitter is limited to addressing the error identified by Basten JA at [71] of Woelfl (No 3), namely, the failure to "identify the element of misconduct and assess its seriousness and weigh that against the consequence of proposed dismissal" or whether the appeal and cross-appeal are to be wholly reconsidered.

Relevant authorities 35In Peacock (No.2) the Full Court of the Federal Court was called upon to consider the scope or extent of a remittal to the Administrative Appeals Tribunal by Dowsett J in earlier proceedings (Peacock v Repatriation Commission [2004] FCA 1449; (2004) 40 AAR 143 ("Peacock (No.1)"). It may be noted that the relevant provisions of the Administrative Appeals Tribunal Act 1975 are as follows: Section 44 Appeals to the Federal Court of Australia from decisions of the Tribunal Appeal on question of law (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. ... Powers of Federal Court (4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. (5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court. 36These provisions provide a right of appeal to the Federal Court on a question of law, and for an order by the Federal Court remitting the case to be heard and decided again. The appellant submitted these provisions stand in stark contrast to the limited supervisory jurisdiction of the Court of Appeal over the Industrial Relations Commission, which is confined to the identification and correction of jurisdictional error. 37In Peacock (No.1) Dowsett J found that the Tribunal had misunderstood subs 24(1)(c) of the Administrative Appeals Tribunal Act, the critical legislative provision it was required to follow, as well as the binding authority of Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 26 AAR 93. In those circumstances, Dowsett J set aside the decision of the Tribunal and ordered that the matter be remitted to the Tribunal for further consideration in accordance with law: at [39]. The appellant noted that this was a different form of order to the order of the Court of Appeal in the present case. 38In Peacock (No.2), the Full Court, whilst accepting that Dowsett J might have limited the matter he was remitting for further consideration, found that his Honour had not done so. At [18] the Full Court stated: [18] We accept that Dowsett J might have limited the matter he was remitting for further consideration, but we think that it will be a rare case in which such a limitation can be inferred from reasons for judgment when the terms of the remittal itself are unqualified. Not only are we unable to see any qualification limiting the remittal in the present case, it seems to us that the terms of Dowsett J's reasons for judgment contain at least one indication to the contrary. When discussing the application of s 24(1)(c) his Honour said this: The respondent had conceded, and the Tribunal had found, that he satisfied the requirements of par 24(1)(b) of the Act. Although the questions are not identical, I cannot see how, on the present evidence, that finding can be reconciled with the Tribunal's conclusion that the applicant was not prevented by his conditions from performing clerical or administrative work during the claim period. One way of avoiding the problem of reconciliation would be a reconsideration of the concession. There is no reason to believe that his Honour intended to exclude that opportunity. 39We note the observation by the Full Court that "it will be a rare case in which such a limitation can be inferred from reasons for judgment when the terms of the remittal itself are unqualified." 40At [19] the Full Court referred to the decision in Nation: [19] ...The applicant relied on Repatriation Commission v Nation (1995) 57 FCR 25. In that case the Full Federal Court held that a remittal of "the matter" was sufficiently ambiguous to permit resort to surrounding circumstances. The Court held that the terms of the reasons made it clear that the remittal was restricted. However, in that case it had been accepted since 1983 that the veteran's sinusitis condition had been war-caused. The only matter decided by the Commission to which the appeal and remittal related was whether another condition, anxiety neurosis, was also war-caused. Accordingly, the remittal did not permit the veteran's entitlement arising from his sinusitis to be reconsidered. This case is quite different. It is argued here that the remittal excludes matter that was before the Commission when it made its decision under review. 41In Nation, Beaumont J, with whom Black CJ and Jenkinson J agreed, stated at [37]-[45]: (1) Did the Tribunal err in law by entering upon a consideration of the sinusitis question? [37] As has been seen, the orders made by the court in its first judgment included an order that "the matter" be remitted to the Tribunal to be heard and determined according to law after admitting such further evidence as it considered appropriate. [38] The source of the Court's jurisdiction in this area is s.44 of the Administrative Appeals Tribunal Act. By s.44(1), a party to a proceeding before the Tribunal may appeal to the Court, on a question of law, from any decision of the Tribunal in that proceeding. By s.44(3), the Court has jurisdiction to hear and determine such appeals. By s.44(4), the Court shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. By s.44(5), without limiting the generality of s.44(5), the orders that may be made by the Court include an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court. [39] Although the Court's order referred to the "matter" rather than the "case", it appears that an order of the kind provided by s.44(5) was intended. As a matter of power, s.44(4) would, in any event, have authorised an order in the terms of the order made. [40] The more difficult question is whether, upon its true construction, the order should have been read down, as Northrop J has now held, so as to have remitted to the Tribunal only that part of the claim as was concerned with the alleged sequela, that is, the question whether the neurosis was war-caused. [41] The rule in England is that when a judgment is clear as to its terms, not even the pleadings nor the history of the action may be utilised to construe the judgment contrary to its clear meaning (see Halsbury's Laws of England, 4th ed., Vol. 26 at 273). Where, however, the judgment or order is ambiguous, it may be permissible to resort to extrinsic material, including the reasons for judgment, to resolve the ambiguity (see Gordon v Gonda (1955) 1 All ER 762 at 765, 768). [42] A similar approach has been taken in this country. If, as in the case of "speaking" order (see, e.g., I.C.I. Australia Operations Pty. Ltd. v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248 at 262) its true meaning is "immediately plain", the terms of the order will speak for themselves. If this is not the case, the true meaning may be ascertained according to ordinary rules of construction (see Australian Consolidated Press Ltd. v Morgan [1965] HCA 21; (1965) 112 CLR 483 per Windeyer J at 503; McNair Anderson Associates Pty. Ltd. v Hinch [1985] VicRp 30; (1985) VR 309 at 311-2; cf. Kwikspan Purlin System Pty. Ltd. v Federal Commissioner of Taxation (1986 2 ATC 4602 at 4605; Australian Energy Limited v Lennard Oil N.L. (No. 2) (1988) 2 Qd R 230 at 232; Sharpe v Goodhew, Drummond J, 11 December 1992, unreported, at 10-12; Australian Securities Commission v Skase, Drummond J, 13 January 1993, unreported, at 16-17). Under the ordinary rules of construction, evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has "a plain meaning" (see Codelfa Construction Pty. Ltd. v State Rail Authority of N.S.W. [1982] HCA 24; (1982) 149 CLR 337 per Mason J at 352). [43] In my opinion, the language of the order of remitter was susceptible of more than one meaning. The word "matter" could have meant the whole question being the determination of the respondent's claim for a further pension. But it could also have meant the specific dispute then agitated before the Court, that is, the sequela issue. Although, "matter" is sometimes used, in the constitutional sense, to describe the whole of a dispute dealt with by the judicial process, the language of the Veterans' Act indicates that, in other contexts, "matter" can have a narrower meaning. For instance, as has been noted, by s.18(1), it is provided that it is the duty of the Commission, inter alia, to determine all "matters" relevant to the determination. By s.18(2), certain provisions are made where the Board, the Tribunal or a court makes a decision remitting to the Commission "a matter" being the assessment of the rate of the pension, or the fixing of the date from which a decision is to operate. [44] It follows from the ambiguity of the order of remitter that resort may be had, in aid of its true interpretation, to the surrounding circumstances. Those circumstances included, of course, the reasons for judgment. When regard is had to those reasons, it appears clearly that the meaning to be given to "matter" in the present context is the more restricted one, that is, the sequela question. That was the only issue tendered for determination by the Court. There was no issue that the sinusitis was war-caused. [45] It follows that I agree with Northrop J that the Tribunal went beyond its jurisdiction in embarking upon the sinusitis issue. 42The decision of the Full Court of the Federal Court in Nation represents a line of authority that suggests that an ambiguity in the order must first be identified before resort is had to the reasons for judgment. There is, however, a second line of authority that suggests regard must always be had to the reasons for judgment and, therefore, it is not necessary to first find ambiguity. 43The second line of authority was identified by J Tarrant in his article "Construing undertakings and court orders" (2008) 82 ALJ 82. The cases referred to by Tarrant were: Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78; Australian Energy Ltd v Lennard Oil NL [No 2] [1988] 2 Qd R 230; Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58; Polyaire Pty Ltd v K-Aire Pty Ltd [No 4] [2007] SASC 36 per Besanko J; and Re Sharpe [1992] FCA 616 per Drummond J. 44More recently, Campbell JA (Handley AJA agreeing, Basten JA not disagreeing) in AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; (2010) 78 NSWLR 302 expressed the opinion at [98] that: [98] The preferable view of the law is that an order of an administrative Tribunal, like an order of the court, can be construed in the light of the circumstances surrounding the making of the order, regardless of whether there is any ambiguity in the words of the order itself. 45His Honour continued: [99] There have been some cases that have held that there must be ambiguity before surrounding circumstances are resorted to to construe an order (McNair Anderson Associates Pty Ltd v Hinch [1985] VicRp 30; [1985] VR 309 at 312 per Southwell J, Repatriation Commission v Nation [1995] FCA 1277; (1995) 57 FCR 25 at 33 per Beaumont J (with whom Black CJ Jenkinson J agreed); Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; (2005) 62 NSWLR 653 at 655 per Young CJ in Eq, and see PW Young, "Construing Court Orders" (1998) 72 ALJ 117). However, those cases were influenced by what was thought to be the approach to interpretation of contract adopted by Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337, especially at 352. There is some puzzle about whether Mason J in Codelfa consistently adhered to the view that it was only if there was ambiguity that one could resort to surrounding circumstances as an aid to construction of a contract: Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 at [17], [243]-[261]. In any event, in the time since Codelfa was decided in 1982, the High Court has moved away from requiring ambiguity before surrounding circumstances can be used as an aid to construction of a contract - the steps in that move are traced in Franklins v Metcash at [14]-18], [239]-[305]. Thus, the principles whereby extrinsic evidence can be used to construe a contract no longer provide analogical support for court orders being construed by reference to extrinsic evidence only if the order in question is ambiguous. [100] The Full Federal Court in Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 at 78-79 approved the use of surrounding circumstances to construe an order, and in particular approved the use of the reasons for judgment as an available aid to interpretation even of an order of a court framed in unambiguous language (quoting the decision of the Full Court of the Supreme Court of Queensland in Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230) "because they form part of the context in which the order was made". [101] In Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 Hodgson JA (with whom Tobias J agreed) said at [28], in a part of his judgment dealing with construction of an order that had not been made by consent, that "in the case of orders made for reasons given in a judgment, one can have regard to the judgment and to other surrounding circumstances, including the pleadings". [102] In Athens, Santow JA (with whom Tobias JA also agreed) made an important observation at [129]: "The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order. A court order derives from its originating judgment, as a transfer of land derives from the underlying contract. The order must therefore conform to the judgment, with only such latitude as the judgment allows." [103] Santow JA (at [133]) preferred the line of authority whereby: "[133] ... the meaning of words in an order should in an appropriate case be considered by reference to the reasons for judgment, themselves finding their context in the overall proceedings: see for example Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 QdR 230 at 232; Kwikspan Purlin System Pty Ltd v Federal Commissioner of Taxation (1986) 93 FLR 263 at 267; Ecrosteel Pty Ltd t/as Packs Business Form Brokers v Pefor Printing Pty Ltd (Santow J, 12 November 1997, unreported)." [104] In Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; (2003) 129 FCR 558 at [27] Allsop J (as His Honour then was) accepted that, to resolve by a process of construction an ambiguity in a court order, it can be appropriate to consider a wider range of material than those relied on in Athens, namely "the reasons, the pleadings and, if necessary, the evidence and how the case was conducted". See generally the helpful discussion by Professor Tarrant in "Construing undertakings and court orders" (2008) 82 ALJ 82. 46The weight of authority would appear to support the proposition that an ambiguity is not required before resort is had to the reasons for judgment.

Court of Appeal's orders and reasons 47Turning to the orders in Woelfl (No 3), the orders themselves are unambiguous. Order 1 refers to matters IRC 1226 and 1244 of 2012, which are the appeal and cross-appeal. Order 2 remits "the appeal and cross-appeal in those matters to a Full Bench of the Industrial Relations Commission to be determined according to law." That is, the whole of the appeal and cross-appeal were remitted to the Full Bench to be determined, not according to the Court of Appeal's decision and not on some narrow issue, but broadly, according to law. 48Despite the plain terms of the orders, the Court of Appeal's reasons for judgment inject some uncertainty into what the Court intended. On one view the reasons tend to suggest that the matters to be reconsidered by the Full Bench are only those in respect of which error was identified. The reasons for judgment in Woelfl (No 3) suggest a narrow scope of the remittal in three ways. First, in relation to the appeal, the principal ground was that Harrison DP had erred in applying the test of "serious and wilful misconduct" so as to warrant termination of employment and in doing so erred in not finding Mr Woelfl had committed misconduct such as to render the threatened dismissal neither harsh, unreasonable nor unjust. Walton J essentially found this ground was made out. His Honour stated in Woelfl (No 2): [83] The PSA contended that, in truth, his Honour concentrated upon whether the officer had engaged in misconduct in [245] of his decision because it was this expression he employed in the first sentence of that paragraph (in which he referred to Officer Woelfl's failures). However, this submission cannot be accepted. The Deputy President expressly found that the conduct of Officer Woelfl should not warrant dismissal because, even though it was considered 'misconduct', it did not satisfy the higher test of 'serious and wilful misconduct'. The conclusion at [245] of the decision at first instance was central to Deputy President Harrison's adjudication with respect to the application made on behalf of Officer Woelfl. It was attended by appealable error in two respects. First, whilst it was relevant for his Honour to consider whether Officer Woelfl had engaged in misconduct, for the purposes of considering the application brought under s 89(7), the erection of a test, in this respect, as to whether the conduct constituted serious and wilful misconduct was erroneous (for reasons earlier discussed). Secondly, the distinction drawn by the Deputy President between 'misconduct' and 'serious and wilful misconduct' was the fulcrum upon which his Honour made orders restoring Officer Woelfl's employment to a demoted position, a decision which was beyond power. [84] What the Deputy President was required to do was to evaluate whether, notwithstanding the misconduct found, he may, nonetheless, find that the threatened dismissal of Officer Woelfl was harsh, unreasonable or unjust. I do not consider the Deputy President properly made that assessment. Whilst he did identify the unproven misconduct concerning the movement of Mr Klum and his medical assessment were the more serious charges, he did not evaluate the gravity of the proven misconduct or why, given its significance, a finding activating relief under s 89(7) should be made. This is because he was misled, in the exercise of his power, between the false dichotomy (for the purposes of his adjudication) of 'misconduct' and 'serious and wilful misconduct'. 49Basten JA referred to what Walton J said at [24] of Woelfl (No 3) and went on to observe that whilst it was open to find there was no error committed by Harrison DP, it was also reasonably open to find there was error: at [35]-[36]. In other words, it was open to Walton J to find error in the way that his Honour did and, by implication, it was open for his Honour to find misconduct. 50Secondly, Basten JA considered that "the misconduct comprised in the finding of failure to investigate [the cell] was properly described as 'serious', although precisely why called for articulation" (at [68]). There his Honour seems to be indicating there was misconduct and it was serious. 51Thirdly, the error found by the Court of Appeal was not that the majority in Woelfl (No 2) had made no finding of error or that the finding regarding error at first instance was wrong. Rather, the error found by the Court of Appeal was an error by the majority in re-determining the matter, namely, "a failure to identify the element of misconduct and assess its seriousness and weigh that against the consequence of proposed dismissal" (At [71] per Basten JA). It also seems there was an error in failing to "consider separately the possibility that dismissal might be 'harsh', although not unjust or unreasonable" (at [70] per Basten JA), although it is not entirely clear whether his Honour was proposing some form of separate consideration of harshness or that a consideration of harshness is part of the balancing exercise where the consequence of the proposed dismissal is to be weighed against the seriousness of the misconduct. 52It is arguable, therefore, that in making its orders the Court of Appeal did not intend for the Full Bench on remittal to start from scratch, so to speak. 53However, despite the contra-indications in the Court of Appeal's reasons for judgment, we do not consider that they can prevail in the face of orders that are entirely unambiguous. Moreover, there are indications in the Court of Appeal's reasons that support a conclusion that, despite the narrowness of the Court of Appeal's finding regarding error, the intention was that the matters to be "reconsidered" were the whole of the appeal and cross-appeal. One indication is to be found at [72] of Woelfl (No 3) where Basten JA stated "...the decision of the Full Bench... must be set aside." It would have been open to the Court of Appeal to set aside only that part of the majority's decision in respect of which error was found. Instead, the whole of the decision in the appeal was set aside. 54A further indication is that although Basten JA found that Walton J's finding of error by Harrison DP was open to him, he also found that Haylen J's finding was equally open, namely, that "it seems likely that the Deputy President was considering the seriousness of the conduct alleged as established on the evidence, in applying the requirements of s 84, namely, whether dismissal for the alleged conduct was harsh, unreasonable or unjust." In other words, Basten JA was not aligning himself with either position. 55Additionally, if it is said the remitter is only of narrow scope and confined to the majority's errors identified by the Court of Appeal, that would seem to leave the dissenting judgment of Haylen J extant. That could not have been the intention of the Court of Appeal and supports a conclusion that the Court remitted the appeal in its entirety for reconsideration. 56As for the cross-appeal, the PSA did not press the grounds asserting that Harrison DP erred in finding misconduct on the part of Mr Woelfl: see Woelfl (No 2) at 66. The other grounds concerned the Commission's power to order demotion. Walton J found in the PSA's favour that there was no such power. Remittal of the cross-appeal would seem to lack any utility at all unless the PSA is permitted to renounce its previous position and resurrect grounds 1 and 2 of the cross-appeal. That may be open to the PSA. In Peacock (No.2) at [16]-[17] the Full Court of the Federal Court stated: [16] A similar order was made when this Court made a remittal order to the Refugee Review Tribunal in Wang v Minister for Immigration and Multicultural Affairs [No. 2] [2001] FCA 448; (2001) 108 FCR 167. On appeal from that decision, Gleeson CJ, in the majority, said this (Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 at 522): The Full Court ordered that the decision of the Tribunal be set aside, and the matter be remitted to the Tribunal to be determined in accordance with law. The consequence of that order was that the Tribunal, in dealing with the remitted matter, would be obliged to determine, in the light of the circumstances existing at the date of such new determination, and of the information before the Tribunal at that time, all questions of fact and law relevant to the respondent's claim to refugee status. The Chief Justice read the order as a remittal of the whole matter to be heard and decided again. [17] Another example is the order made by the High Court of Australia in Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115 that "the matter be remitted to the Tribunal to be determined according to law". Prior to the further hearing of Roncevich the respondent sought to raise a factual issue which had previously been conceded. The applicant sought to have the issue excluded. Although the Tribunal made remarks relating to the propriety of the Commission raising a factual matter previously conceded in two hearings and on appeal, including an appeal to the High Court, it held that it was open to the Commission to raise the matter (Roncevich and Repatriation Commission [2006] AATA 660; (2006) 91 ALD 662 at 665-666: President Downes J, Deputy President Hack SC, Brigadier Ermert). The Tribunal reached its "conclusion by reference to the statutory task that the Tribunal performs and also by reference to the decision of the High Court in Wang". The crux of the High Court's finding in Wang was that findings of fact made in the first hearing did not carry over to the second hearing. Prior concessions cannot be in any different category. 57Whether it is open to the PSA to now pursue grounds I and 2 of the cross-appeal is a matter for the Full Bench to determine on the remitter.

Conclusion 58In light of the foregoing analysis we conclude that the remitter will involve a reconsideration of all of the issues raised in the appeal and cross-appeal, subject to whether the PSA is to be permitted to rely on grounds 1 and 2 of the cross-appeal. 59Given this conclusion about the effect of the Court of Appeal's orders, the appellant's contentions regarding estoppel and the effect of s 179 of the IR Act have no application. In relation to s 179 of the IR Act, the appellant conceded that s 179 does protect jurisdictional error (Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531). However, it was submitted the limit of the Court of Appeal's finding of jurisdictional error on the part of the Full Bench was that the absence of any reference in the reasons of the Full Bench to Mr Woelfl's "long and favourable record of service suggests that the necessary weighing exercise was not undertaken" and, secondly, that the absence of any reference to the "essential exercise" of identifying the element of misconduct and assessing its seriousness and weighing that against the consequences of proposed dismissal "indicates that it was probably not undertaken" (Woelfl (No 3) at [71]). 60It was further submitted the findings of the Full Bench majority that were protected by s 179 were as follows: 1) The misconduct of Mr Woelfl was serious on its face; 2) The officer held a senior position and his misjudgments were fundamental to the discharge of his duties; 3) Proper adherence to procedure would have been more consistent with the duty owed by CSNSW to Mr Klum, including ensuring proper and (in this case) more urgent medical treatment (Full Bench decision [86]). 61The difficulty with this proposition is, "what misconduct and what misjudgments are protected"? As Basten JA found, the majority did not identify the element of misconduct that was "serious on its face" (we note that contrary to Basten JA's finding at [68] that at no point did Walton J set out Harrison DP's findings of misconduct, Walton J did, in fact, set them out at [56] of the Full Bench decision). Whilst Basten JA stated at [63] that the term "misjudgments" should be understood as referring to the misconduct of a serious kind, the misconduct itself was not articulated. In relation to procedure, Basten JA found that the majority's failure to identify the element of misconduct that was "serious on its face" was compounded by the reference to "misjudgments" and to a lack of "adherence to procedure" (at [69]). 62The consequence of our findings is that the parties will need to provide the Full Bench on the remitter with all of the material that was before the original Full Bench. The Full Bench hearing the remitter does not have access to that material other than the applications to appeal. That material will need to be provided at least seven days prior to the hearing of the remitter. 63In relation to the PSA foreshadowing that it may seek to have the Full Bench receive further evidence, the PSA will need to file a motion to that effect with supporting affidavit. If such an application is made it will be determined by the Full Bench at the hearing of the remitter.

Orders 64The Full Bench makes the following orders: (1)The remitter ordered by the Court of Appeal in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 will involve a reconsideration of all of the issues raised in the appeal and cross-appeal, subject to whether the PSA is to be permitted to rely on grounds 1 and 2 of the cross-appeal. (2)The parties will file sufficient copies of all of the material that was before the original Full Bench at least three days prior to the hearing of the remitter. (3)In the event the PSA wishes to seek leave to have the Full Bench receive further evidence pursuant to s 191(2) of the Industrial Relations Act 1996, the PSA shall file a motion to that effect with supporting affidavit. If such an application is made it will be determined by the Full Bench at the hearing of the remitter. (4)Liberty to apply.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 September 2014