West v Western Sydney Local Health District

DECISION

1. This is an application for leave to appeal and, if leave is granted, to appeal from a decision of Tabbaa C in Robert Graeme West and Western Sydney Local Health District [2014] NSWIRComm 1027 ("the decision"). The Commissioner refused an application to extend time for Mr Robert West ("the appellant") to make an application pursuant to s 84 of the Industrial Relations Act 1996 ("IR Act").
2. The Full Bench heard full argument on the appeal and the application for leave.

Background

1. Mr West was employed by the respondent for more than 19 years. Following a lengthy period of suspension with pay whilst allegations against him were investigated, he was summarily dismissed on 12 February 2013.
2. His then solicitor, Petrine Costigan of Petrine Costigan Lawyers ("Costigan") wrote to the respondent as to a number of matters, including information as to appeal mechanisms. The respondent replied by letter dated 18 February 2013, including the following: In relation to appeal mechanisms, I inform you that there are no internal appeal mechanisms but Mr West may, as you have informed, appeal against the dismissal to an appropriate jurisdiction.
3. A Notice of Appeal - Public Sector Discipline was filed by the appellant on 11 March 2013 pursuant to Pt 7 of the IR Act.
4. The respondent, in or about early June 2013, instructed external solicitors, Maddocks Lawyers ("Maddocks"). By letter dated 17 June 2013, Maddocks wrote to Costigan about, amongst other things, the competency of the proceedings. There followed an exchange of correspondence between the solicitors over the next several weeks, culminating in an arrangement by which the appellant would discontinue the Pt 7 proceedings and commence proceedings under Pt 6 of the IR Act without objection from the respondent as to that application being out of time.
5. That arrangement, however, encountered another barrier in terms of disagreement as to the procedural directions which should follow. The barrier appears to have been insuperable and the appellant determined to continue with, as Costigan submitted, his "preferred" Pt 7 proceedings.
6. The respondent filed a Notice of Motion to dismiss these proceedings which was heard by Newall C who granted the Motion in a decision dated 10 January 2014: West v Director-General, NSW Ministry of Health in respect of Western Sydney Local Health District [2014] NSWIRComm 1001. (We parenthesise that no party raised any issue concerning the Commissioner being a member of this Full Bench.)
7. The appellant filed an application pursuant to s 84 of the IR Act on 13 January 2014. The respondent opposed the extension of time given that about 11 months had elapsed since the dismissal.

Principles on Leave to Appeal

1. The applicable principles in relation to the grant of leave were recently adverted to in New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17. In that decision the Commission said at [12]: [12] The jurisprudence of the Commission concerning leave to appeal is well settled. It is nowhere more clearly set out than in the decision of the Full Bench in Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 in which it was held, at [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] NSWIRComm 353 at [5].

Grounds advanced in support of a grant of leave

1. In summary, Mr West submitted:

• The grant of leave was necessary to do justice between the parties.
• The decision contained misinterpretations, misapplications, inappropriate weighting of material and errors of fact and it was in the public interest to resolve these issues.
• It was important to give effect to the government's Model Litigant Policy which requires or prohibits the respondent from relying on technical defences.
• The respondent's refusal to reply to submissions will become a standard practice for employers contrary to the public interest.
• The appellant had the "sense that the judgment inappropriately elevates the cost of justice over the demands of justice".
• The respondent had altered its reliance on the raw proxy logs and reframed its case, proving that the investigator's case was "fraudulent" and hence the decision to dismiss was unfair.
• The respondent had failed to advise him as to his correct appeal rights and so he was led into error in his original appeal.
• Although he chose and maintained the wrong path for the challenge to his dismissal, he did so with the benefit of and relying on legal advice. The appellant clarified he did not submit that his lawyers had made an error in the advice. He did not "blame" his lawyers for the submission. He relied on the fact of legal advice to put in context his decision to pursue the Pt 7 option.
• The costs and hardship of the loss of his employment and the conduct of the litigation was a much greater burden on him than the costs of the litigation to the respondent.

1. The appellant submitted that, in relation to the merits of his substantive claim, to which several of the points summarised above relate, he did raise with the Commissioner the prospects of success of his claim. In other words, he sought to demonstrate that his case was arguable. He relied, in particular, on what became conveniently described as anomalies in the respondent's computer and internet records.
2. The respondent submitted: Some aspects of the decision under appeal may be briefly noted: (a) the Commissioner correctly identified the principles relevant to the grant of an extension of time; (b) The Commissioner did not attempt any close assessment of the merits of the case; (c) the Commissioner found as a matter of fact that the conduct of the respondent was not a contributing factor to the delay in bringing the claim; (d) the Commissioner effectively determined that the appellant, having had the benefit of legal advice, settled on a course of action (namely continuation of the Part 7 proceedings) aware of the risks associated with that course; (e) ultimately the Commissioner determined that the appellant had not discharged his onus and that her consideration of the relevant factors indicated that her discretion should not be exercised in favour of extension of time. The Commissioner's decision was discretionary. It is therefore necessary for the appellant to demonstrate error of the kind described in House v The King (1939) 55 CLR 499
3. In particular, in relation to the question of leave to appeal, the respondent submitted: The following principles obtain in relation to leave to appeal: (a) leave to appeal will never be lightly granted and not when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance; (b) some issue of real significance in the interests of justice will need to be identified for such an application to succeed; and (c) an appeal bench is ultimately concerned with correction of error. This matter does not involve any contested issue of principle. It was a case of the application of settled principles to an unremarkable set of facts. No error has been demonstrated.

Consideration

1. In her reasons, after tracing the background, Tabbaa C identified the legislative framework in the context of which the decision needed to be made. The Commissioner also referred to the authorities which identified the principles to be applied in properly exercising her discretion. No criticism is made of the legislative framework or principles so identified. The appellant took issue with the application of those principles.
2. In her summary of the appellant's contentions at [37] of the decision, the Commissioner did not expressly refer to the "prospects" of the appellant's case although, at [35], that issue was identified as relevant in the principles established by the authorities. The Commissioner did, however, observe, at [39] of the decision, that the appellant sought: An opportunity to be heard on the merits of the claim so that he can clear his name of the allegations made against him.
3. Tabbaa C thereafter considered the various matters relevant to her exercise of discretion. In our view, subject to one matter to which we shall separately refer, the Commissioner's findings were entirely open and reflect an appropriate analysis of the submissions and material before her.
4. The one matter which was of concern to us was the issue of consideration of Mr West's "prospects of success" in the substantive case. The appellant submitted it was a matter raised before the Commissioner particularly by way of reference to the anomalies alleged to arise in the respondent's expert evidence. As we observed above, it was not clearly articulated by the Commissioner as a matter upon which the appellant relied.
5. We note, however, at [60]-[63] of the decision, the Commissioner did refer to the evidentiary issue raised and the respondent's answer to the point, that is, the offer of a conclave of experts to work through those issues - an offer refused by the appellant.
6. It seems to us that the Commissioner accepted, at [63], that, as an element in the balance of factors affecting the exercise of discretion, she was prevented from more fully assessing the strength of the appellant's prospects by reason of the forensic decision taken by the appellant. We consider, reading the decision as a whole, that the Commissioner gave the factor a neutral weighting.
7. When giving reasons, it is desirable to expressly and squarely deal with issues raised by the parties, but the important and necessary step is to consider and determine those issues. In this matter we are satisfied, on a fair reading of the Commission's reasons, that Tabbaa C did consider the issue and weighed it along with the various other factors raised by the parties.
8. Further, even when regard is had to the submissions made by the appellant as to the merits of his case before us, we do not consider that leave should be granted to appeal the Commissioner's decision for the proper administration of justice having regard to the available expert evidence and the appellant's refusal to engage with an expert conclave (both of which concern prospects for success).
9. As a result, we are not satisfied that the appeal raises any substantial issue of law or principle. Rather the challenge is confined to arguments concerning the findings of fact and assessments made by the Commissioner. Accordingly, we would refuse leave to appeal.

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