Termination of employment - representation of respondent to be represented by counsel - leave to appeal.

[1] At the completion of the hearing of this matter, we informed the parties that we were not satisfied that there were grounds justifying a grant of leave to appeal and that we, therefore, refused leave to appeal. We now publish our reasons.

[2] On 16 August 2004, the application lodged by Timothy Visscher (the appellant) pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) seeking relief in respect to the termination of his employment by Teekay Shipping Pty Ltd (the respondent) came on for hearing before Commissioner Redmond. At that hearing the appellant appeared in person and Mr B. Cross sought leave to appear as counsel for the respondent. The appellant objected to such leave being granted. The transcript then records the following exchanges -

MR VISSCHER: If the Commission pleases. I refer to representation under the Act at section 42 and it actually says that for a party to be represented it must be by leave of the Commission. There are three avenues for leave to be given: one is with consent of the parties and as I have just said I don't consent; secondly there is leave of the Commission if it is satisfied that there are special circumstances that make it desirable that the parties may be so represented; and the third limb is by leave of the Commission on application if the Commission is satisfied that the party can only be adequately represented by counsel, solicitor or agent. Now, I have got some authorities on this point if the Commissioner would like me to hand them up.

MR VISSCHER: The authorities generally speak in terms of the intention of the Parliament to encourage organisations to become registered. The authorities speak that where there are no special circumstances leave should not be granted. And in general terms it should not be taken as a foregone conclusion that leave will be granted for parties to be represented.

MR CROSS: Commissioner, I have only seen the first authority but it appears to relate to a registered organisation issue that is certainly not the case here. What we have is an unfair dismissal that involves an allegation of alleged - an allegation of demotion. I would submit that pursuant to subsection (3) paragraph (b) this is certainly a subject matter the agitation of which would be assisted by my presenting my client's case. I would also note that my client has been acting through my instructing solicitors, Deakins, with the applicant for some period of time and yet this issue of representation has not been raised at all.

If my client were not able to be represented by myself and I would assume the objection would also flow to my instructing solicitors, it would then be left to the situation of the witnesses in my client's case being required to run their case. Now, appropriately they would be outside the Court as the case proceeded. I would submit that in the ordinary course legal representatives do appear, particularly in unfair dismissal proceedings and I would only propose to be of assistance to the Commission in these proceedings.

THE COMMISSIONER: Yes, thank you, Mr Cross. It is true what Mr Cross has said that in unfair dismissal applications the Commission has adopted a wide view of the Act and allows legal representatives to appear for both sides. I have not seen a decision of this Commission which has precluded legal representations in unfair dismissals. Where the Commission has, and I have on my own - in my own decisions rejected application by legal counsel to appear in industrial matters. It has not been the Commission's practice in these matters as they have become rather technical. Both parties have the opportunity to appoint legal representatives and I propose to give leave to Mr Cross.

[3] This is an appeal, for which leave is required, by the appellant against this decision of Commissioner Redmond to grant leave to the respondent to be represented by counsel, solicitor or agent. The appellant's notice of appeal as originally lodged stated that the appeal was brought against the decision pursuant to s.45(1)(b) of the Act. At the hearing, we granted leave to amend the notice of appeal so that it stated that the appeal was brought pursuant to s.45(1)(g) as well as s.45(1)(b). Having heard the parties, we had some doubts as to the competency of the appeal. For reasons which will become apparent, we did not consider it necessary to determine that question and we were prepared, for the purposes of our decision, to assume that the appeal was competent.

[4] Having made that assumption, however, we did not consider that this was an appropriate case in which to grant leave to appeal. The Commissioner's decision was in the nature of a preliminary or procedural ruling. As has been recently observed by a Full Bench, the approach generally adopted by this Commission and the courts is that it is in the public interest to discourage appeals from such rulings.[1] In support of that proposition, the Full Bench went on to state -

It is only necessary to refer to the well-known passage from the judgment of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.):

"...I am of the opinion that,...there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."[1946] NSWStRp 24; (1945) 46 SR (NSW) 318 at 323.

The passage has been referred to with approval by the High Court and Full Benches of the Commission. (Adam P. Brown Male Fashions Pty Ltd [1981] HCA 39; (1981) 148 CLR 170 at 177. See, for example, Australasian Meat Industry Employees Union v Meat and Allied Trades Federation (1990) 33 IR 431 at 432) Permitting appeals against preliminary or procedural rulings may prolong the proceedings overall and favour well-resourced parties while working to the disadvantage of other parties. Given the number of procedural rulings which occur, the possibility of a multiplicity of appeals is one to be guarded against. There are other reasons why intervention by an appeal bench at an early stage may be undesirable. The Commission is capable of moulding its procedures to respond to evidentiary developments. Procedural rulings may be altered later in the case. For this and other reasons, until the final determination has been made it may not be possible to discern whether an appealable error has occurred. Even if error is patent at a preliminary stage, the party which is aggrieved by a procedural decision might ultimately be successful in the proceedings overall. In such a case any earlier appeal in relation to a procedural decision would be rendered futile.

[5] In any event, leave to appeal should not be granted unless the appellant has demonstrated to the satisfaction of the Commission that there is an arguable case of the type that has a reasonable prospect of success that the Commission at first instance has made a legal error or, where the decision which is the subject of the appeal is a discretionary one, there has been some miscarriage in the exercise of the Commission's discretion. The Commissioner's decision in this case may be appropriately described as a discretionary decision. Section 42(3) allows the Commission to grant leave to a party to be represented by counsel, solicitor or agent over the objection of another party if it is satisfied either -

• that, having regard to the subject-matter of the proceeding, there are special circumstances that make it desirable that the parties may be so represented; or
• that the party can only adequately be represented by counsel, solicitor or agent.

[6] The decision relied upon by the appellant before the Commissioner as well as the additional decisions referred to by him at the hearing of the appeal were concerned with matters relating to industrial disputes where, in the past, there has been some emphasis and encouragement placed upon the parties being represented by registered organisations. Matters arising under Division 3 of Part VIA of the Act are concerned with the rights of individuals. It has become almost a formality that leave to be represented by counsel, solicitor or agent be granted to a party in such matters. Indeed, a Full Bench has observed that "in the normal course of events an ordinary s.170CE applicant would be allowed legal representation pursuant to s.42(3)(c)".[2] A similar observation, in our view, may well be made in respect to respondents to s.170CE applications, particularly when matters of jurisdiction are at issue.

[7] In the matter before Commissioner Redmond, the appellant's claim, as is apparent from the material filed by both parties in the application, raises such issues as whether or not there has been a termination of employment at the initiative of the employer, the relationship between an alleged demotion and the alleged termination and whether or not there has been a constructive dismissal. These are all matters that involve questions of law or at least mixed questions of law and fact. In our view, it was open to the Commissioner to be satisfied that there existed the conditions specified under paragraph (b) and/or paragraph (c) of s.42(3) of the Act for the granting of leave.

[8] In the absence of an arguable case of either legal error or of a miscarriage of discretion, we were unable to conclude that the Commissioner made any error warranting correction on appeal. Nor, in our view, were there any other considerations which would have warranted the granting of leave to appeal. For these reasons, we refused leave to appeal.

T. J. Dixon for Teekay Shipping (Australia) Pty Ltd

1 Re Comsec Trading Limited and Others Print PR945431, 6 April 2004 (Giudice J, Hamilton DP and Hingley C). See also Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Incorporated and Another [1981] HCA 39; (1981) 148 CLR 170 at 177.

2 Re Colonial Weighing Australia Pty Ltd Print Q1048, 20 May 1998 (Watson SDP, Duncan DP and Hingley C).

Printed by authority of the Commonwealth Government Printer