Sophia McGinn and Department of Family v Community Services

Procedural History

1. Mrs McGinn made two applications for reinstatement pursuant to section 84 of the Industrial Relations Act 1996 (NSW) (the Act). The first of those (IRC 2017/29854) in which the applicant alleged a threatened dismissal, was conciliated by Commissioner Stanton. The Department of Family and Community Services (the "respondent") filed a motion seeking to strike out that application on jurisdictional grounds. Stanton C listed the motion for hearing. The applicant discontinued the proceedings before the motion was heard. Mrs McGinn referred to this event in her chronology filed on this appeal as follows: "Commissioner Stanton declared the conciliation failed but accepted the respondent's flawed jurisdictional challenge that the Commission does not have power to hear threatened dismissal."
2. The second unfair dismissal application (IRC 2017/141480) was conciliated by Commissioner Murphy. It was not able to be resolved. Murphy C made directions to prepare the matter for hearing. Later, the respondent made an application to vary the timetable to provide some additional time to file its evidentiary material. Mrs McGinn opposed that application. Commissioner Newall, to whom the matter had been allocated for hearing, made directions in chambers varying the dates by which the respondent was required to file and serve and the applicant was to file and serve in reply. The revised directions were communicated to the parties in writing by the Registrar.
3. Mrs McGinn interpreted the Registrar's notification as suggesting that the Registrar had made the revised directions. She protested that he had no power to do so. The Registrar explained that Newall C had made the directions in chambers. Mrs McGinn did not accept that explanation and sent an email to me, as Chief Commissioner, protesting.
4. I caused a response to be sent to Mrs McGinn confirming that I had inspected the file and that Newall C had indeed made the revised directions in chambers. The applicant did not accept that reply. Ultimately the applicant was advised that, if she wished to pursue the issue further, she should do so by application to Newall C. It appears no such application was made to the Commissioner. At the hearing below, Mrs McGinn made no objection to the admission of the three statements tendered by the respondent. The applicant cross examined each of the respondent's witnesses. In his judgment the Commissioner refers to, and accepts, evidence of each of those witnesses.
5. Although the Grounds of Appeal, set out in the applicant's Application for Leave to Appeal and Appeal, raise no allegation of error in admitting the statements into evidence, Mrs McGinn does note in her Chronology that: "Commissioner Newall accepted the witness statements when no leave was granted to amend the timetable"
6. Notwithstanding the absence of objection and the apparent acceptance by Newall C of the statements, Mrs McGinn declined to include in the appeal book which she filed, the three witness statements tendered by the respondent as, she maintained in her correspondence with the respondent, they had not been filed in accordance with the original timetable and no leave had been granted by Newall C permitting reliance upon that material at the hearing.
7. On the filing of her appeal book it had been noted by the Registrar that the applicant had filed only one copy, notwithstanding that the appeal was to be heard by a Full Bench of three members of the Commission. Mrs McGinn insisted that Rule 8.8 of the Industrial Relations Commission Rules 2009 (NSW) (the "Rules") referred to filing "an appeal book" and therefore she was only required to file one copy. (She had not noticed Rule 2.6 of the Rules nor, to be fair, was it drawn to her attention.) To avoid doubt, on 11 August 2017, I issued a direction requiring the applicant to file three additional copies of the appeal book.
8. The respondent wrote to the Commission on 23 August drawing attention to the omission of the witness statements, as well as the respondent's written submissions, and indicated that, as the applicant persisted in her attitude that the material was not before the Commission, it would file an appeal book containing that material. The respondent also drew attention to the absence from the appeal book of the transcript of the first day of hearing. It was on that day Newall C heard the evidence of all of the witnesses including, of course, the applicant.
9. On 25 August 2017 I wrote to Mrs McGinn drawing attention to the requirements of the Rules, in particular Rule 8.8 (b), to include in the appeal book the transcript of the proceedings below. In that correspondence I directed her to file by 8 September 2017 four copies of a supplementary appeal book containing the transcript. I also noted the additional copies of the appeal book required by my direction of 11 August 2017 had not yet been filed and directed that be done by 8 September 2017. Mrs McGinn responded by email dated 28 August in the following way: "Chief Commissioner Kite, Firstly, you failed to consider my submission that s 8.8 only requires 'an appeal book', not four copies. Secondly, you know very well it takes a month for the transcript to be delivered; therefore, it is oppressive to order by 8 September 2017. In light of these orders, I apply for your recusal from hearing the case on actual bias."
10. In view of the last paragraph of her email I caused the matter to be listed before me on 5 September 2017 to allow the applicant to develop her application. On that occasion Mrs McGinn submitted that it would not be necessary to press her application if "we" resolved the issue of the outstanding directions of 11 August 2017 and 25 August 2017. At that time I explained the reasons for the directions, indicated they would not be withdrawn and, in response to a submission that she could not afford the transcript, informed the applicant she could apply to the Registrar for relief from that cost. Mrs McGinn agreed to take that course and determined not to press for my recusal at that time.
11. The applicant applied for the transcript and for relief from the cost of it. The Registrar determined, in accordance with the established Department of Justice policy, that Mrs McGinn had not established an entitlement to relief from the cost. Nevertheless, the Registrar indicated she would exercise her discretion and remit half of the fee.
12. The applicant pressed for remittal of the whole of the fee. The Registrar declined and provided her reasons. Mrs McGinn then invited the respondent to agree to a direction relieving her of the need to obtain and file the transcript. The respondent declined. The applicant made a further application to me via email. I set out below the email exchange which followed between the applicant and my assistant: "Friday, 8 September 2017 Chief Commissioner, I requested transcript fee waiver as per your advice, however, registrar Morgan declined my application and advised that you have no power to review an administrative decision (see emails below). As discussed, the respondent is not entitled to 'surprise' in oral submission. Therefore, I am seeking the following direction order: The transcript of 28 June 2017 is not required Regards Sophia" "Monday, 11 September Ms McGinn The Chief Commissioner advises as follows: 'I note the direction sought is not by consent. Further I have reviewed the Notice of Appeal, the Applicant's Outline of Submissions, the Respondent's Outline of Submissions and the Appellant's Reply to those submissions. It appears the appeal raises questions of fact which it may be necessary to determine in the proper disposition of the appeal. Therefore I decline to make the direction sought'. Regards Lydia" "Monday, 11 September 2017 Chief Commissioner, It is an act of oppression, if you are in the view that the submissions will lead to the disposal of the appeal, but still requesting the filing of the transcript. It is actual bias, that you already have an opinion on the outcome of the appeal before the commencement of the hearing. Accordingly, I apply for your recusal. Regards Sophia Tuesday, 12 September 2017 Ms McGinn Chief Commissioner advises that you can make that application at the commencement of the hearing of the appeal. Regards Lydia" "Tuesday, 12 September 2017 Chief Commissioner, The application needs to be determined before the hearing date because, if you accept it, another Commissioner will be allocated to the hearing, if you refuse, I will apply for prohibition under s69 of Supreme Court Act on the ground of bias. Please advise whether you will accept my application. No reply by COB Friday is taken as refusal. Regards, Sophia"
13. I caused an email to be sent in response to this last from Mrs McGinn inquiring whether she wished to make any further submissions in support of her application. She replied on Thursday, 14 September 2017 attaching a submission. In her submission Ms McGinn briefly summarised the events between 5 September and 11 September, reviewed some authorities on bias and, in the alternative, on apprehension of bias. She then concluded: "15. The fact that Chief Commissioner relied on his pre-judgement that the submissions will lead to the disposal of the appeal, to decline the appellant's request shows he will decide the case other than on its legal and factual merits, in that, if the appeal is to be disposed of, then the appellant should not be ordered to further expense and file the transcript, the bias is established. 16. The fact that Chief Commissioner declined the appellant's request even though the finding is open on his own evidence, shows a logical connection between the bias and the feared deviation from the course of deciding the case on its merits, in that, Chief Commissioner is so committed to a particular outcome he will not alter that outcome even on his own evidence. 17. Accordingly, there is a bias, a logical connection between the bias and the feared deviation from the course of deciding the case on its merits, and an expressly pre-judgement on the outcome of the appeal (real and not remote), the conclusion should be reached that a fair-minded person will reasonably apprehend that Chief Commissioner will not bring an impartial mind to the resolution of the appeal, the tests of apprehension of bias is satisfied. Accordingly, the appellant applies for recusal of Chief Commissioner on actual bias, alternatively apprehension of bias."
14. On 15 September I caused an email to be sent to Mrs McGinn advising that I refused her application and providing brief reasons as follows: "I have considered the application made on 12 September 2017 by Ms McGinn that I recuse myself from hearing her appeal. I have considered also the more detailed submission made by her, at my invitation, on 14 September 2017. It appears from the submission that the application is based on alleged 'actual bias' - see paragraphs 8-10 of the submission of 14 September 2017. In the alternative, Mrs McGinn submits that a fair-minded observer might reasonably apprehend bias on my part - see paragraphs 11-15 of the submission. Both grounds appear to have their foundation in brief statement of reasons given by me for a refusal of a direction sought by Ms McGinn. That statement is set out in paragraph 7 of her submission. A fair reading of the statement indicates that I've done no more than review the issues identified by the parties to the appeal and expressed a view that those issues appear to raise questions of fact which "may" need to be determined. It is not correct to say that I have formed a view let alone expressed a view as to the outcome of the appeal. Nor is it correct to say that I have indicated that "the submissions will lead to a disposal of the appeal". As the factual propositions on which the application is based are without foundation the application must fail. I refuse the application. More detailed reasons will be given once the appeal has been determined."
15. Mrs McGinn responded by email later that day as follows "Chief Commissioner, The statements in your response are contradicting statements, 'both grounds appear to have their foundation' contradicts with 'the application is based are without foundation', therefore, it constitutes an admission of allegation of facts, that is, an actual bias and apprehension of bias. Please reconsider your decision or provide detailed reasons. No reply by COB Monday is taken as refusal. Regards, Sophia"
16. I then caused an email to be sent reiterating that her application had been refused.
17. The applicant's response was swift. She replied by email as follows "Chief Commissioner, I take this response is authorised by you, and you have reconsidered but refused again, and refused to provide detailed reasons. Given there is no specific response on contradictory statements, it is a further admission of actual bias and apprehension of bias. I will include them in my summons. Should you wishes to reconsider, please advise by COB Monday. Regards, Sophia"
18. On Tuesday, 19 September 2017 Ms McGinn, by email, made an application for a "stay" of the appeal hearing on 22 September 2017 because she intended "to apply for prohibition under s69 of the Supreme Court Act on the ground of bias". She indicated that a failure to reply by close of business the next day would be taken as a refusal.
19. Later that day the applicant was advised that I refused her application but she was not precluded from making an application to the Full Bench on the day of the hearing.
20. It appears that, independently of the email exchange with the Commission, the parties were also exchanging emails about the supplementary appeal book. The applicant advised the respondent's solicitors on 15 September that she was awaiting my decision on her application for recusal. On 19 September she advised that the application had been refused and that she would make an application for prohibition. Further, the applicant had applied for a stay and indicated, if the respondent wished to make submissions on the stay, it should do so by close of business that day.
21. On 21 September 2017 Mrs McGinn responded by email to my decision in relation to the "stay". She wrote: "Chief Commissioner, You know very well stay order does not require full bench, and it needs to be determined before the commencement of the hearing to achieve just, quick and cheap resolution. Your email is another evidence for s69 order, and I take it as a refusal. Should you wish to reconsider your decision, please advise email by COB today. Regards, Sophia"
22. The Commission did not respond to this last email. These various emails make clear the applicant was well aware that: 1. the Application for Leave to Appeal and Appeal was listed for hearing on 22 September 2017: 2. no stay (or adjournment) had been granted; and 3. it was open to her to make application to the Full Bench for a stay (or adjournment) of the hearing pending any application she may have made or intended to make to the Supreme Court.
23. At the time of hearing no notice of any application to the Supreme Court for prohibition or for any other relief had been received by the Commission.
24. When the matter came on for hearing the following morning as the applicant did not appear, I provided a brief summary of the forgoing events and the Full Bench decided it would hear the respondent on the application for Leave to Appeal.

Consideration of Application for Recusal

1. In her submission Mrs McGinn referred to the Civil Trials Bench Book [1-0010] and Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33] in relation to actual bias and as to apprehension of bias: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]-[8].
2. The paragraph referred to in Wilson & Partners is contained in the judgment of the plurality, Gummow A-CJ, Hayne, Crennan and Bell JJ. Their Honours were at that point in their judgment considering the test for apprehension of bias. They stated: 'Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias. The respondents did not submit in this court or in the courts below that the trial judge had in fact prejudged any issue."
3. Mrs McGinn, in relation to her submission about actual bias, relied upon the second and third sentences in the cited paragraph. As to that she submitted: "The fact that Chief Commissioner expressly voiced his opinion on the outcome of the appeal two weeks before the hearing proves the state of mind of the judge, a case prejudgment, therefore, it is actual bias."
4. The prejudgment to which Mrs McGinn refers is, if it exists, to be found in the reasons I gave for refusing the direction she sought. Those reasons are set out in the email of 11 September 2017 quoted at [13] above. There are only four sentences in those reasons. The first notes an absence of consent. The second refers to the action I have taken to facilitate consideration of the application for a direction and amounts to no more than a review of the documents filed by the parties. The third sentence expresses a conclusion, based on the second sentence, as to the possible issues in the appeal. The fourth sentence contains the decision in relation to the direction sought.
5. As Mrs McGinn refers to "expressly voiced his opinion" the only possible sentence she can have in mind is the third. With respect to her it is impossible to derive from that sentence a proposition that I had formed a view as to the outcome of the appeal. At best I have expressed a view that factual issues may arise on the appeal and therefore there may be a need to refer to the evidence below.
6. Although it is speculating somewhat, it may be that the applicant was submitting that the phrase "proper disposition of the appeal", which she has paraphrased by the word "disposal" and the phrase "to be disposed of" in paragraph 15 of her submission, indicates that I have decided to reject the appeal on the basis of the submissions. That would be a very odd construction of the words "proper disposition of the appeal". First, because it requires one to ignore the word "proper". Second, because it is expressed in the context of issues raised by the appeal and yet to be determined. And third, because it is used in a context of identifying information which it will, or may be, necessary to consider for the purposes of that determination.
7. The phrase has a well-established usage in forensic practice: see for example, Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [104]; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285; [2008] HCA 48 at [22]; and Re McBain: Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA16 at [24]. The phrase refers to the appropriate determination of a matter. It is not a synonym for rejection.
8. It is not to the point that Mrs McGinn is not a lawyer and therefore may not be familiar with the usage of the phrase. In Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48, albeit in the context of apprehended bias, the plurality said at [12]- [13] "The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice."
9. In assessing whether there is actual bias the test is subjective, that is, it is an assessment of the judicial officer's actual state of mind. That assessment is informed by the context, as stated in Johnson, of ordinary judicial practice.
10. There is nothing to support a conclusion of prejudgment. As was observed in Ebner, a judicial officer has a duty to hear cases allocated to him or her unless good reason exists not to hear the matter. That duty cannot change simply because a court or tribunal is dealing with a self-represented litigant.
11. In Ebner the plurality, Gleeson CJ, McHugh, Gummow and Hayne JJ, said at [19]: "Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case."
12. The passage makes clear that judicial officers must ensure they fulfil their duty to hear and determine cases and it is important to guard against permitting litigants to choose their judges or tribunal members. Thus, there is an obligation not to take the line of least resistance predicated upon an argument that justice needs to be seen to be done. The observance of that aphorism is not dependent upon a subjective view held by one party. It needs to be approached objectively. Accordingly, I did not regard it as open simply to take the view that Mrs McGinn may feel she has been deprived of a fair hearing because of my presence on the Full Bench and therefore I should recuse myself. It is not a question of how a litigant may feel, but whether there exists a "substantial ground for contending" that I was disqualified from hearing the case.
13. In making that assessment I took into account what the plurality said in the following paragraph in Ebner about the absence of a need to be "affirmatively satisfied" that I was disqualified in order to decide not to sit. In this case, however, I am not convinced there is any "real doubt", to use the words of their Honours.
14. In relation to apprehended bias, I have set out Mrs McGinn's submissions as to the basis of the apprehension at [14] above. In those paragraphs of her submission Mrs McGinn seeks to apply what the plurality in Ebner said at [6]-[8] of their judgement.
15. Paragraph [15] of the applicant's submission firstly identifies a "pre-judgement that the submissions will lead to the disposal of the appeal". For the reasons already given no such prejudgment existed nor, applying the test in Johnson, is any pre-judgment evident.
16. Secondly, the applicant relates the refusal to make the direction she sought to the alleged prejudgment as an indication that I "will not decide the case on its legal and factual merits". The proposition fails on the absence of the prejudgment, but there is also a logical inconsistency.
17. It is important to bear in mind that it was the applicant's submission that the transcript of the evidence was not necessary for the proper disposition of the appeal. That formed the basis of her submission in support of the direction she sought. It was then submitted that the refusal of the direction sought (which would remove a significant amount of evidence from the material for review by the Full Bench) is an indication that I was not concerned with the legal and factual merits. How might the factual merits be determined without recourse to the evidence?
18. There is also circularity of argument. It is submitted there is a need to go beyond the submissions in order to properly determine the appeal. However it is also submitted that a direction facilitating the Commission going beyond the submissions to determine the appeal "on its legal and factual merits" must be an indication of prejudgment, because it may have the effect that the applicant incurs expense.
19. There is no basis to conclude that a fair-minded lay observer would reasonably apprehend that I would not bring an impartial and unprejudiced mind to the resolution of the appeal.
20. It is for these reasons that I declined to recuse myself.

Necessity

1. In Ebner at [6] it was noted that the governing principle of disqualification for apprehension of bias is subject to exceptions relating to waiver and necessity. In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31, Mason CJ and Brennan J said of the rule at 88: "The rule of necessity permits a member of a court who has some interest in the subject matter of the litigation to sit in a case when no judge without such an interest is available to sit: Dimes v Proprietors of Grand Junction Canal Pty . The existence of the principle has been recognised in this court by Isaacs J in Dickason v Edwards , and by Brennan and Deane JJ in Builders' Registration Board of Queensland v Rauber ; In the latter case, Brennan J had no hesitation in holding that the principle applied to a statutory tribunal as well as to a court. And Deane J acknowledged that this might be so. The conclusion reached by Brennan J upon this point conforms to principle and to received opinion in other common law jurisdictions: see the citations in Rauber The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice." (citations omitted)
2. Although it was unnecessary for me to determine the issue in making my decision on recusal, I was aware of the limited capacity of the Commission to constitute a Full Bench about which the applicant could have no complaint on the ground of bias, actual or apprehended.
3. There are only 5 members of the Commission at present. A Full Bench consists of 3 members (s 156(1) of the Act). A Full Bench constituted to hear an appeal from a decision of the Commission must not include the person who made the decision (s 156(4) of the Act). There is also the prospect of a party objecting to a member, who conciliated a matter, hearing an appeal from a decision in that matter (in reliance on s 173(1) of the Act or on procedural fairness grounds).
4. In relation to Mrs McGinn, Newall C made the decision and was excluded by s 156(4). Commissioners Murphy and Stanton had conciliated claims by Mrs McGinn as I have noted at paragraphs [2] and [3] above. That meant only Seymour C and I were indisputably eligible to constitute the Full Bench (at least prior to Mrs McGinn's application for my recusal). The applicant had made a comment in her Chronology, quoted in paragraph [2] above, alleging that Stanton C had made a determination in relation to an issue which may have been relevant on the appeal. Were an objection made to Stanton C (and made out to the requisite standard) that would have left only 3 members (including me) to constitute the Full Bench. And then there was the prospect of an application under s 173 (1) of the Act in relation to Murphy C.
5. As I have earlier noted, I formed a view, consistent with the authorities that I needed to satisfy myself that a substantial basis existed if I were to decide to disqualify myself out of abundant caution. The practical position of the Commission was a factor which reinforced that view.
6. Commissioners Murphy and Seymour: This is an application pursuant to s 187 of the Industrial Relations Act 1996 ("the Act") for leave to appeal and, if leave is granted, to appeal against a decision of Newall C in Sophia McGinn v Secretary, Family and Community Services [2017] NSWIRComm 1039 ("the impugned decision"). In that matter the Commissioner dismissed an application brought by Mrs Sophia McGinn ("the appellant" or "Mrs McGinn") pursuant to s 84 of the Act. The appellant has alleged that her dismissal from employment by the Department of Family and Community Services ("the respondent") was unfair.

Appearance of Appellant

1. Mr Shariff of Counsel appeared for the respondent. There was no appearance by or on behalf of the appellant on the day of hearing of the appeal. The matter was called outside the courtroom three times.
2. The Chief Commissioner then noted that an email exchange had occurred between the appellant and the Commission and provided a brief summary of the events now described in detail in the Chief Commissioner's decision, which we have had the advantage of seeing in draft form. The Chief Commissioner's summary noted: 1. Mrs McGinn had made an application that he recuse himself from hearing the appeal; 2. he had rejected that application; 3. Mrs McGinn had applied for a stay of the appeal hearing; 4. he had rejected that application but left open to Mrs McGinn the opportunity to renew that application to the Full Bench; and 5. Mrs McGinn had indicated she intended to make application to the Supreme Court for an order in the nature of prohibition.
3. As at the date of the hearing of the appeal, the Commission had not been served with any process indicating the appellant had commenced proceedings in the Supreme Court. Neither had the appellant renewed her application to the Full Bench at or before the hearing.
4. Mr Shariff advised that the respondent had received no notice of any application to the Supreme Court for a stay and that the respondent had exchanged correspondence with the appellant to indicate it opposed any such application. In the absence of the appellant, the respondent sought a dismissal of the Application for Leave to Appeal and Appeal.
5. The Full Bench was satisfied that Mrs McGinn was well aware the proceedings were to be heard that day. It invited submissions from the respondent as to the course which should be followed.
6. Mr Shariff submitted that the absence of the party prosecuting the appeal provided a ground for dismissal of the appeal. Alternatively, he would deal with the question of leave to appeal and or the substantive appeal as the Commission saw fit.
7. Without deciding his first submission, the Full Bench requested Mr Shariff address the application for leave to appeal only.

Principles on leave to appeal

1. The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. In that matter the Full Bench stated at [10] and [11]: "It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263; [2005] NSWIRComm 409: '[5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited (2005) 146 IR 113; [2005] NSWIRComm 353 at [5].'"
2. That statement has been approved since in a number of decisions: Merrin v Mosman Municipal Council [2016] NSWIRComm 1048 at [6]-[7]; Fire Brigades Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050 at [11]; Industrial Relations Secretary v Wattie [2017] NSWIRComm 2007at [11]. In the last mentioned decision the Full Bench added at [12]-[13]: "Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held, immediately before the statement set out above, that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decisionmaker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal."
3. These principles were recently endorsed in Commissioner of Police v Morris [2017] NSWIRComm 1010 at [6]; Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia) Pty Ltd t/as Acciona Ferrovial Joint Venture [2017] NSWIRComm 1029 at [10]-[11] and most recently in Andrew Geza Schwartz and NSW Ministry of Health [2017] NSWIRComm 1034. We will apply them.
4. It is also relevant in the present case that an appeal which lacks wider application than the interests of the parties will not normally be granted leave: Stegbar v Transport Workers' Union (2008) 173 IR 350 at 359; [2008] NSWIRComm 104.

The questions raised by the appeal

1. The application for leave to appeal identified reasons why leave to appeal should be granted. They may be summarised as follows: 1. the appeal raises a substantial issue of principle, being whether an employer has the right to demand performance of duties when those duties no longer exist in the structure; 2. the appeal raises a substantial issue of law, being whether a position can be considered "ongoing" when it does not exist in the new structure and the redundancy is finalised; 3. the appeal has widespread practical application on questions such as whether redundant employees can be counted as full time employees and whether an employee without a substantive position can apply for a loan; 4. the appeal raises issues concerning the proper administration of justice as the Commissioner failed to consider submissions made by the appellant that the respondent did not follow the Managing Unsatisfactory Performance Policy or that her duties were abolished; and 5. principles of natural justice were "breached" in the proceedings.
2. The respondent submitted that leave to appeal should not be granted as the appeal proceeds on incorrect premises of fact and law, seeks to contradict findings of fact made by the Commissioner which were open to be made on the evidence and does not raise substantial issues of principle or law. The respondent further submitted that in some cases, the points of appeal seek to challenge findings of fact and law that were not made and to that extent the appeal is misconceived.
3. We address each of the appellant's submissions on leave to appeal in turn below.

Appeal Point 1: Substantial issue of principle

1. The appellant submitted that the appeal raised a substantial issue of principle, being whether an employer has the right to demand performance of duties when those duties no longer exist in the employer's structure.
2. The Commissioner first considered whether the termination was valid, because an invalid termination would be relevant to the determination of harshness or unfairness. A key issue in that consideration was whether the respondent was entitled to terminate the appellant's employment pursuant to s 47(1)(f) of the Government Sector Employment Act 2013 (NSW) ("the GSE Act") on the basis of her refusal to perform duties.
3. The Commissioner made a factual determination on the basis of the evidence that a number of directions were given to the appellant by her superior managers to perform certain duties that formed part of her role. The appellant claimed she had been told that her position had been deleted. The respondent's evidence was that although a new organisational structure had been announced, it had not taken effect and the appellant's position had not yet been deleted. Therefore in the intervening period the appellant was required to continue to perform the duties of her role, which she refused to do.
4. This appeal point therefore proceeds on the incorrect premise that the appellant's duties no longer existed in the structure as and when she was being directed to perform those duties. Commissioner Newall's finding was that the appellant's duties had not ceased to exist, a finding that was open to him to make on the evidence. Accordingly, this appeal point is misconceived.

Appeal Point 2: Substantial issue of law

1. The appellant submitted that the substantial issue of law raised by the appeal was whether a position can be considered "ongoing" when it does not exist in the new structure and the redundancy is finalised.
2. It is important to note that the concept of "ongoing employment" in this context has a particular meaning defined in s 43 of the GSE Act. The section relevantly provides: "43 Kinds of employment (1) Employment as a Public Service non-executive employee may be any one of the following kinds of employment: (a) ongoing employment, (b) temporary employment, (c) casual employment. (2) Ongoing employment is employment that continues until the employee resigns or his or her employment is terminated. (3) Temporary employment is employment for a temporary purpose. (4) Casual employment is employment to carry out irregular, intermittent, short-term, urgent or other work as and when required. (5) ..." (Emphasis added)
3. The submission similarly proceeds on an incorrect premise that the appellant's position no longer existed at the time she was being directed to perform her duties. This is contrary to the finding made by the Commissioner referred to in respect of Appeal Point 1 that the appellant's position still existed at the time of termination despite the fact it was to be deleted in the proposed new structure which had not yet been finalised or implemented.
4. Commissioner Newall considered the appellant's argument that she was not in ongoing employment until the time of termination. The Commissioner found that the nature of the appellant's employment with the respondent remained "ongoing" employment in the context of the statutory scheme, because, regardless of any proposed new structure, at the time she was dismissed no determination had been made as to whether she would be placed in a position in the new structure or declared excess. This finding was open to be made on the evidence before the Commissioner.
5. Having reached the factual conclusion in respect of the appellant's refusal to perform duties, the Commissioner determined as a matter of law that such refusal enlivened the right of the respondent to invoke s 47(1)(f) of the GSE Act to terminate the employment. We do not consider any error of law is disclosed in this approach.

Appeal Point 3: Widespread practical application

1. The appellant submitted that the appeal has widespread practical application on questions such as whether redundant employees can be counted as full time employees and whether an employee without a substantive position can apply for a loan.
2. The Commissioner did not find that the appellant's position was made redundant or that she did not have a substantive position at the time she was being directed by the respondent to perform her duties. Consequently, whether redundant employees are counted as full time employees and whether displaced employees can apply for a loan are hypothetical questions unrelated to the Commissioner's decision. Accordingly, this submission is misconceived.

Appeal Point 4: Proper administration of justice

1. The appellant submitted that the Commissioner failed to consider submissions made by the appellant that the respondent did not follow the Managing Unsatisfactory Performance Policy, or that her duties were abolished. It is for these reasons it is submitted that the appeal raises issues of the proper administration of justice.
2. We consider these submissions in turn as follows: 1. Commissioner Newall determined that the respondent was relying upon the power conferred by s 47(f) of the GSE Act, namely, refusal to undertake duties, not a power of removal for unsatisfactory performance simpliciter. The Commissioner did consider the submissions made at the hearing by the appellant concerning the Managing Unsatisfactory Performance Policy and determined that in those circumstances it did not apply. 2. The Commissioner nevertheless proceeded to deal with procedural fairness, including compliance with cl 14 of the Government Sector Employment (General) Rules 2014. The only issue as to procedural fairness that ultimately arose was whether the appellant had notice of a meeting to give her a 'show cause' letter. There was evidence she was not told it was a formal meeting or that she could have a support person present. The Commissioner considered that evidence and found that this was not a material procedural deficiency because ultimately the Appellant had the opportunity to respond to the allegations against her. 3. The Commissioner did address the appellant's submission concerning whether her duties were in fact abolished in the context of the question about ongoing employment. The relevant findings have already been set out in respect of Appeal Points 1 and 2 above.
3. This Appeal Point is also misconceived.

Appeal Point 5: Breach of natural justice

1. The appellant submitted that principles of natural justice were breached in the proceedings. These breaches are particularised as the failure of the respondent to file a defence, the Commissioner's acceptance of the respondent's witness statements and his failure to consider all relevant submissions of the appellant.
2. We consider these submissions in turn as follows: 1. There is no requirement under the Act, the Uniform Civil Procedure Rules 2005 (the 'UCP Rules'), the Industrial Relations Commission Rules or the Practice Notes of the Commission for the respondent to file a 'defence' in an unfair dismissal application. The UCP Rules require a 'defence' in proceedings commenced by Statement of Claim. Unfair dismissal proceedings are not commenced by that means. There was no direction requiring the respondent to file a 'defence'. No unfairness can therefore arise on this basis. 2. The respondent's witness statements were filed in accordance with directions made by the Commission. No protest was made at the hearing before Commissioner Newall that the directions had not been followed. The appellant had the opportunity to make relevant objections and to cross-examine the deponents (which she did) in respect of those statements. No unfairness can therefore arise on this basis. 3. The appellant has not identified what submissions the Commissioner failed to consider that are said to constitute a breach of natural justice that are separate or additional to the submissions raised in Appeal Point 4 above, which have already been addressed.
3. This Appeal Point is also without substance.

Conclusion

1. An appeal bench is ultimately concerned with correction of error. We agree with the respondent's submission that the Commissioner adopted an orthodox and unremarkable approach to the determination of the proceedings below as follows: 1. the Commissioner considered there was a valid termination within the statutory context of s 47(1) of the GSE Act; 2. he then considered whether the termination was nevertheless harsh, unreasonable or unjust. He determined that it was not; and 3. it has not been demonstrated that the Commissioner's conclusions were not open to be made on the evidence.
2. Unless the appellant can establish an arguable case of demonstrable error nothing arises warranting the intervention of the Full Bench, let alone invoking public interest for leave to appeal. In our view the Commissioner determined the matter within the boundaries of the proper exercise of the Commission's functions with respect to an application under s 84 of the Act.
3. The appeal raises no substantial issues of principle or law, nor does it raise issues having any wider application than to the parties themselves. It primarily seeks no more than that the Full Bench determine the outcome to a different effect. It also seeks determination of hypothetical matters not raised in the proceedings below. Accordingly the matter does not properly attract the grant of leave on public interest grounds.
4. It was for these reasons we refused leave to appeal.

Order

1. The Full Bench confirms its order: 1. Leave to appeal is refused. 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: 26 October 2017