Dec 560/00 M Print S6238
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision and order Prints S3557 and S3558
issued by Senior Deputy President Williams on 25 February 2000
Tenix Defence Systems Pty Ltd
(C No. 31465 of 2000)
s.170CE application re relief in regard to termination of employment
K Fearnley
and
Tenix Defence Systems Pty Ltd
(U No. 30520 of 1999)
VICE PRESIDENT ROSS |
|
SENIOR DEPUTY PRESIDENT POLITES |
|
COMMISSIONER SMITH |
MELBOURNE, 22 MAY 2000 |
Termination of employment - appeal - unfair dismissal - misconduct - fighting in workplace - self defence - approach of industrial tribunals when fighting has been established - role of appellate body in reviewing findings of fact at first instance.
DECISION
Background
[1] This decision deals with an appeal by Tenix Defence Systems Pty Ltd (Tenix) against the decision and order of Senior Deputy President Williams in Prints S3557 and S3558 made at Melbourne on 25 February 2000. Mr Keith Fearnley was the Applicant in the proceedings below and is the respondent in the matter before us. In the decision subject to appeal his Honour concluded that the termination of Mr Fearnley's employment was "harsh, unjust and unreasonable". His Honour then considered the question of remedy and decided that an order for reinstatement with maintenance of continuity of employment was appropriate. The order giving effect to his Honour's decision is in the following terms:
"Pursuant to the decision of the Commission issued on 25 February 2000 [Print S3557], the Commission orders that:
1. Tenix Defence Systems Pty Ltd (the Respondent) shall within 21 days of the date of this order reinstate Keith Fearnley (the Applicant) by reappointing him to the position in which he was employed immediately before the termination of his employment with the Respondent on 10 February 1999 (the termination date).
2. The Respondent shall treat the Applicant in all respects and for all purposes as if he had been employed continuously by the Respondent in the position in which he was employed immediately before the termination date from that date until his reinstatement in accordance with paragraph 2 of this order."1
[2] Before we turn to examine the decision subject to appeal and the grounds advanced in support of the appeal we propose to briefly set out some of the background to the termination of Mr Fearnley's employment.
[3] The Applicant was employed as a marine operator by Tenix and its predecessor, Australian Marine Engineering Corporation Ltd, from 14 August 1989 to 10 February 19992 when his employment was terminated by the respondent. The termination of the Applicant's employment was a result of an incident on 10 February 1999 between the Applicant and a Mr Bardis. Mr Bardis was also a Tenix employee.
[4] A few days before the incident occurred the Applicant was told by Mr Bardis that he (Bardis) did not respect his team leader - a Brett Bizon - and intended to "fix him up" by rubbing off chalk marks which Mr Bizon had used to mark faulty workmanship. The chalk marks are used to identify faulty welds for reworking. Shortly after this conversation the Applicant told Mr Bizon of Mr Bardis' intentions. On 9 February 1999 the Applicant became aware that Mr Bardis had been spoken to about the matter. He became concerned that Mr Bardis would then be aware that he had passed the information to Mr Bizon. He anticipated that this could cause a problem between himself and Mr Bardis.
[5] On 10 February 1999 the Applicant was walking past the area in which Mr Bardis was working. Mr Bardis shouted loudly to the Applicant. The latter anticipated that Mr Bardis wanted to discuss the matter referred to earlier. After a moment's hesitation the Applicant decided to sort the problem out at that time rather than wait for Mr Bardis to raise the matter later in the lunch room before other employees. He walked towards Mr Bardis who threw his welding helmet on the ground and approached the Applicant.
[6] A brief exchange followed during which Mr Bardis did some finger pointing and swearing at the Applicant. When the Applicant was within an arms length of Mr Bardis he (Bardis) put his finger on the Applicant's throat. The Applicant pushed Mr Bardis' finger away and Mr Bardis then grabbed him by the throat in a way which severely inhibited the Applicant's breathing. Mr Bardis was choking the Applicant. A fight ensued during which the Applicant struck Mr Bardis on several occasions. As a result of the Applicant's blows Mr Bardis received a cut below his left eye that required medical attention.
[7] Tenix conducted an investigation into the incident and decided to terminate the employment of both men. The Applicant's employment was summarily terminated on 10 February 1999.
[8] Mr Fearnley's s.170CE application for relief arising from the termination of his employment was heard on 16, 17 and 22 December 1999. On 25 February 2000 Senior Deputy President Williams issued a decision in which he found that the termination of Mr Fearnley's employment was "harsh, unjust and unreasonable" and decided to order reinstatement.
[9] In the proceedings at first instance Tenix submitted that it had a valid reason for dismissing the Applicant based on his conduct. Tenix dismissed Mr Fearnley because he had been involved in a fight with Mr Bardis in which he and Mr Bardis exchanged punches and Mr Bardis received a severe facial cut above his left eye. In support of this contention Tenix submitted that it had a clear policy that intimidating or assaulting employees was serious misconduct and could lead to summary dismissal.
[10] Tenix also submitted that the Applicant was notified of the reason for his dismissal (s.170CG(3)(b)) and had been given an opportunity to respond to that reason (s.170CG(3)(c)).
[11] In the event that the Commission determined that the termination of the Applicant's employment was "harsh, unjust or unreasonable" Tenix submitted that reinstatement should not be ordered because it would be inappropriate to do so. In this regard Tenix relied on the evidence of Mr Sullivan.3
[12] In reply Mr Addison, on behalf of the Applicant, submitted that there was no valid reason for the termination as Mr Fearnley had simply acted in self defence, as he was entitled to do. It was also argued that the investigation of the incident by Tenix was flawed and the Applicant was not provided with an opportunity to respond to the reason for his termination as the respondent never gave any consideration to the Applicant's contention that he was acting in self defence. It was argued that reinstatement was the appropriate remedy.
[13] His Honour's findings in relation to the incident between the Applicant and Mr Bardis are set out at paragraphs 15 - 18 of his decision, in the following terms:
"[15] From a consideration of all this material, I have reached the following conclusions:-
· A few days before the incident occurred, the Applicant was told by Mr Bardis that he (Bardis) had cleaned off or was intending to clean off chalk marks that a team leader, Brett Bizon, had used to mark faulty workmanship. If that were true, then it would have been a matter of serious concern for the Respondent.
· Shortly, thereafter, the Applicant passed on that information on to Mr Bizon.
· On 9 February 1999, the Applicant was made aware that Mr Bardis had been spoken to about the matter. He became concerned that Mr Bardis would then be aware that he had passed on the information to Mr Bizon. He anticipated that this could cause a problem between himself and Mr Bardis.
· On 10 February 1999, shortly prior to commencing his shift, the Applicant was walking past the area in which Mr Bardis was working. The latter had commenced his shift some time earlier.
· Mr Bardis shouted out rather aggressively to the Applicant. The latter anticipated that Mr Bardis wanted to talk about the matter referred to earlier. He was not certain, however, whether or not Mr Bardis was only acting. After momentary hesitation, the Applicant decided to sort the problem out at that time rather than wait for the matter to be raised by Mr Bardis later in the lunch room before other employees.
· He walked towards Mr Bardis who jumped down from where he was working and approached the Applicant.
· A brief exchange followed, during which Mr Bardis did some finger pointing and swearing at the Applicant and the Applicant brushed away Mr Bardis' finger. A fight then ensued. During that fight, Mr Bardis held the Applicant by the throat in a manner which severely inhibited the Applicant's breathing and the Applicant struck Mr Bardis on several occasions.
· Mr Bardis' injury to his eye was sufficient to warrant medical attention and was the result of the blows struck by the Applicant.
[16] After consideration of all the evidence before me, I am of the view that the Appellant was not a willing participant in the actual fight. The aggressor and the initiator of the fight was Mr Bardis. The Applicant's conduct did not, in my view, contribute to what might be initially described as a confrontation turning into a fight. In so far as the Applicant punched Mr Bardis, he was not, in my view, `going on with it'. Rather he was reacting to a real threat to his physical well being.
[17] In reaching such a conclusion, I find support in the following undisputed facts:
· There was no suggestion at all that, prior to this incident, the Applicant, in all his years of employment with the Respondent, had demonstrated any aggressive or violent attitude.
· Prior to this incident, there was no history of antipathy between the Applicant and Mr Bardis. Indeed, the opposite was the case. The two were often observed together at lunch.
· Mr Bardis was known to act in an exaggerated manner and signs of aggression on his part were often a pretence.
· Mr Bardis was substantially larger and physically stronger than the Applicant.
· Both immediately after the incident and, more importantly, during the course of the interview with the Respondent's Security Officer, the Applicant was still having difficulty breathing and his throat was still marked from the manner in which he had been held by Mr Bardis.
[18] I have also had the opportunity of observing the Applicant when giving his evidence in these proceedings. He did not impress me as a belligerent person. On the contrary, the impression he conveyed was quite the opposite."4
[14] His Honour then considered the investigation by Tenix into the incident and found that "the manner in which the termination was effected was procedurally flawed."5 The Senior Deputy President then concluded in the following terms:
"The lack of a valid reason and the failure to afford the Applicant appropriate procedural fairness individually and collectively render the termination of the Applicant's employment harsh, unjust and unreasonable and I find to that effect."6
[15] His Honour then turned to consider the question of remedy and decided that an order for reinstatement with continuity of employment was appropriate.
Submissions on Appeal
[16] The Appellant challenged his Honour's findings and conclusions in respect of each of the matters referred to in s.170CG(3)(a) to (e). In particular it was submitted that his Honour erred in:
· failing to find that there was a valid reason for the termination of the Applicant's employment;
· failing to recognise that Tenix had considered the Applicant's contention that he had acted in self defence;
· failing to have regard to s.170CG(3)(b);
· concluding at paragraph 31 of his decision that the Applicant was not truly given an opportunity to put what he wished in answer to the allegations made against him before the decision to terminate his employment was made;
· failing to take sufficient account of the conduct of the union delegates in facilitating a false account of events and deliberately trying to frustrate the Appellant's attempts to investigate the incident; and
· failing to take into account the objects of part VIB (see s.170CA) and in particular the requirement to ensure that a "fair go all round" is accorded to both the employer and employee concerned.
[17] It was also submitted that reinstatement should not have been ordered because it was inappropriate to do so.
[18] The essence of the Respondent's submission in reply was that his Honour's findings and conclusion were reasonably open and that the Appellant had failed to establish an arguable case in support of its contention that his Honour made a number of errors. On this basis it was argued that leave to appeal should be refused.
Consideration of Submissions
[19] The appellate jurisdiction conferred on us by s.45 in relation to an appeal concerning an order arising from the arbitration of an application under s.170CE is conditioned by s.170JF(1) which limits the grounds of an appeal. The only ground is that the member of the Commission who conducted the arbitration was in error in deciding to make an order. That can be an error of fact or an error of law.7 As the order subject to appeal is a discretionary one, the appeal is to be determined in accordance with the principles stated in House v The King.8 In House v The King, Dixon, Evatt and McTiernan JJ stated these principles as follows:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."9
[20] In the light of the principles applicable to an appeal from a discretionary order, we now turn to consider whether an error within these principles was made by the Senior Deputy President in the exercise of his discretion.
[21] The focal point of the appeal was his Honour's conclusion that there was no valid reason for the termination of Mr Fearnley's employment. The Appellant advanced three submissions directed at this part of the decision subject to appeal. First, it was argued that his Honour had failed to apply the principles in Australia Meat Holdings Pty Ltd v McLauchlan10 to the matter before him. Second, the Appellant challenged the findings of fact upon which his Honour based his decision. Third, it was argued that his Honour had failed to give sufficient weight to the Appellant's policy on fighting.
[22] Before dealing with each of these submissions we wish to make some brief observations on the approach taken by industrial tribunals when fighting or an assault has been established. In AWU-FIME Amalgamated Union v Queensland Alumina Limited Moore J summarised the relevant decisions in the following passage:
"What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence."11
[23] Not dissimilar views, albeit in a different statutory context, have been expressed by a Full Bench of the Industrial Commission of South Australia in Torbet v Commissioner for Public Employment as follows:
"In considering what was the appropriate remedy for the misconduct a strong push on the chest where both participants were screaming at each other, the employer seems to have regarded dismissal as the only remedy. The evidence of Mr. Keeley strongly suggests that the committee of enquiry, having reached the conclusion that an assault had taken place, thought it had no alternative than to dismiss the employee. But what this employer needed to consider was whether, upon weighing up the seriousness of the assault against the mitigating or extenuating circumstances, dismissal should occur, or whether some other and less serious punishment was appropriate. In reaching that decision the employer would also need to take into account the competing necessity to establish and retain discipline amongst its employees."12
[24] The above passages were cited with approval by a Full Bench of the Commission in Mobil Oil v Giuffrida.13 We also note the following observation by the Federal Court - in another fighting case - Qantas Airways Limited v Cornwall:
"We accept that in this case ... it is necessary to examine the circumstances surrounding the conduct relied on, which constitute the "relevant factual matrix", to decide whether the termination was supported, in the words of the statute, by "a valid reason ... connected with the employee's ... conduct". As was said in Cosco Holdings and in Allied Express Transport, a valid reason is one which is "sound, defensible, or well-founded". But it is important to remember that the governing words are those of the statute, and that attempts at judicial explanation should not be substituted for the statutory provision. The question remains whether, the employer having terminated the employee's employment, there was a valid reason connected with the employee's conduct.
We have already stated that the respondent, in the present case, struck his supervisor. That is not now in dispute. Nor is it in dispute that Qantas acted on this conduct as a reason when it terminated the respondent's employment. The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved."14
[25] We think these authorities support the view that in determining whether there is a valid a reason for a termination of employment arising from a fight in the workplace the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to:
- whether the terminated employee was provoked and whether he or she was acting in self defence;
- the employer's need to establish and retain discipline amongst its employees; and
- the service and work record of the employee concerned.
[26] We now turn to consider the particular submissions advanced by the Appellant.
McLauchlan's Case
[27] As we have noted the Appellant submitted that his Honour failed to apply the principles in Australia Meat Holdings Pty Ltd v McLauchlan15 to the facts before him. McLauchlan's case is authority for the proposition that in determining an application under s.170CE(1)(a) the Commission is bound to consider whether the termination was "harsh, unjust or unreasonable" based on the evidence in the proceedings before it, provided that evidence concerns circumstances in existence when the decision to terminate the employment was made. Facts which existed at the time of the dismissal but which only came to light after the dismissal might either:
- justify the dismissal when otherwise it would be harsh, unjust or unreasonable; or
- render the dismissal harsh, unjust or unreasonable.
[28] In Mr Fearnley's case there were facts in existence which were not known to the employer in the course of its investigation. This new material was in evidence in the proceedings below but, the Appellant submits, his Honour failed to take this evidence into account or in the alternative he did not give it the weight it deserved.
[29] When seen in this light it seems to us that the submission in relation to McLauchlan's case is really just part of the Appellant's primary contention that a number of his Honour's findings were not reasonably open on the evidence before him and we now turn to deal with that contention.
Challenge to Findings
[30] The principal submission advanced in support of the appeal was that on any reasonable view his Honour was wrong in making the following findings:
- the Applicant was not a willing participant in the fight;
- the Applicant's conduct did not contribute to "what might be initially described as a confrontation turning into a fight"; and
- the Applicant was not "going on with it".
[31] These findings appear at paragraph 16 of the decision subject to appeal and the relevant passage is set out at paragraph 13 of this decision.
[32] In the proceedings at first instance the evidence in respect of what happened immediately prior to and leading up to the actual physical confrontation, and the fight itself consisted of the witness statements, and in some cases oral evidence, of the following persons:
[33] Messrs Bardis, Mallia and Lemon were not available for cross-examination and their evidence was not relied on by either party. In essence the only evidence of any real probative value relevant to his Honour's findings about the confrontation between the Applicant and Mr Bardis consisted of the statements and oral evidence of the Applicant and Messrs Morgan and Formosa.
[34] Before turning to the evidence in the proceedings at first instance we note that the role of an Appeal Bench in relation to findings of fact made by a member at first instance was recently considered by a Full Bench in Rode v Burwood Mitsubishi in the following terms:
"As noted in Pham v Taubmans Pty Ltd,22 an Appeal Bench would be very reluctant to reverse a finding of fact made by a member at first instance and would only do so if satisfied that any advantage enjoyed by the member below as a result of hearing the relevant evidence was not sufficient to justify the findings made. As his Honour Mr Justice McHugh said in Abalos v Australian Postal Commission: ((1990) 171 CLR 167 at 178)
" . . . where a trial judge made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied `that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion."
Further, in Devries v Australian National Railways Commission ((1993) 177 CLR 472 at 479) their Honours Brennan, Gaudron and McHugh JJ observed:
"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact (see Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842, 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349, 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167). If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge `has failed to use or has palpably misused his advantage' (SS Hontestroom v SS Sagaporack [1927] AC 37 at 47) or has acted on evidence which was `inconsistent with facts incontrovertibly established by the evidence' or which was `glaringly improbable' (Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844, 62 ALR at 57)."
If a finding made by a member at first instance depends to any substantial degree on the credibility of a witness, that finding must stand, unless it can be shown that the member at first instance:
· acted on evidence inconsistent with facts incontrovertibly established by the evidence;
· acted on "glaringly improbable" evidence; or
· failed to use or palpably misused the advantage the member at first instance enjoyed in hearing the witnesses give evidence. (See Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Elitegold Pty Limited v CM Holdings Pty Ltd and Anor [1995] ATPR 40,753 at 47,759.)
Where a member at first instance resolves a conflict of evidence between witnesses the subtle influence of demeanour on the member's determination cannot be overlooked. Further, it does not necessarily follow that because a member at first instance makes no express reference to demeanour and credibility that such factors played no part in any findings of fact made. (Martin v Option Investments (Aust.) Pty Ltd [No. 2] [1982] VR 464 at 468; Ablos v Australian Postal Commission (1988) 171 CLR 167 at 179.)
The role of an appellate Court in reviewing a trial judge's findings of fact was recently considered by the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq). ((1994) 73 ALJR 306.)
In that case the appellant (the SRA) brought proceedings against nine defendants in the Commercial Division of the Supreme Court of NSW. The SRA claimed that two of those defendants, being contractors to it, had submitted invoices based on dockets that had been certified fraudulently by those defendants, their managers and employees, and that other defendants, engaged by the SRA to certify the accuracy of the documents, had been similarly fraudulent.
The SRA, having failed before the primary judge and on appeal to the Court of Appeal, further appealed to the High Court. It submitted that the primary judge had overlooked a body of documentary evidence supporting SRA's case; had made inappropriate findings about the want of credibility of a material witness, Mrs Page; and had failed to identify the relevant issue for trial.
Mrs Page, as a site secretary, gave evidence of having been instructed to write up false entries in books and dockets. The trial judge said of Mrs Page:
"Whilst the material included in her affidavits gives the appearance of being quite unequivocal, this appearance did not survive her cross-examination. I do not accept significant parts of her evidence. It was internally inconsistent in a number of respects. She was argumentative at times, evasive at others. She did not present well in the witness box."
The High Court held that the findings of the primary judge as to Mrs Page were surprising and suggested that the "significance" attached by him to Mrs Page's appearance and demeanour was misplaced, especially in a context where that judge had failed to give sufficient attention to all the evidence of the case. (Ibid at 321 per Gaudron, Gummow and McHugh JJ.)
The joint judgment of their Honours Gaudron, Gummow and Hayne JJ referred to in the extract from Devries which we have set out above, with apparent approval (at 807) and concluded in the following terms:
"It is true that the trial judge, in determining whether to accept the evidence of Mrs Page, was heavily swayed by his impression of her whilst giving oral evidence. However, this circumstance does not preclude a court of appeal from concluding that, in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable (Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 at 496-497. See also Voulis v Kozary (1975) 50 ALJR 59; Chambers v Jobling (1986) 7 NSWLR 1). The documentary evidence in this case, comprising unchallenged affidavit material of Mrs Meek and Ms Packham, the wage records and related documents of Earthline and Nuline, the list of plant (at least in relation to machine No 59) and the analysis of Coopers & Lybrand (in respect of the duplicity claims), provides significant support to the allegations made by Mrs Page.
As Kirby J and Callinan J point out in their reasons for judgment, these were matters to which weight was not given either by the trial judge or the Court of Appeal. The substance of the matter is that there has not yet been a determination of the SRA's case upon a consideration of the real strength of the body of evidence it presented. There must be a new trial at which this consideration will be undertaken."
It seems to us that the approach of the majority of the Court in the State Rail Authority case represents an application of the traditional approach of appellate bodies to findings of fact at first instance. It does not, in our view, represent a change in the law as stated in Devries and Abalos. The position prior to the State Rail Authority case was that appellate courts were prepared to overturn findings of fact in certain circumstances including where the trial judge acted on evidence which was inconsistent with facts incontrovertibly established by the evidence. That is still the position."23
[35] We propose to adopt the above analysis and apply it to the matter before us.
[36] In this case the Appellant contended that his Honour made no effort to resolve the inconsistencies in the evidence. But it is clear that his Honour's findings of fact were inconsistent with parts of the evidence of Messrs Morgan and Formosa. In such circumstances his Honour must be taken to have rejected that evidence and accepted the Applicant's evidence. As the High Court said in Abalos:
"In the present case, the learned trial judge's decision on the issue of supervision was based on the evidence of Mrs Archer ... She did not refer to the evidence which Professor Ferguson had given on the issue of supervision. The learned trial judge formed the view that, for a person who performed the work in the manner which Mrs Archer demonstrated, the risk of injury was minimal. Her Honour was not bound to accept the whole of Professor Ferguson's evidence concerning supervision even if it had the effect which the Court of Appeal thought it had. She accepted his evidence concerning the risk of injury which was inherent in the system and his evidence that he had communicated his views to representatives of the defendant. But she made no express findings about the rest of Professor Ferguson's evidence or his general reliability as a witness. If there is any inconsistency between Professor Ferguson's evidence and her Honour's findings concerning supervision, then she must be taken to have rejected that evidence."24
[37] We now turn to deal with the Appellant's challenge to the findings set out in the decision subject to appeal.
[38] The first two findings subject to challenge relate to what happened immediately prior to and leading up to the actual physical confrontation. The only probative evidence relevant to these findings is that of Mr Fearnley. Messrs Formosa and Morgan did not witness the events before the fight developed. The Appellant's submission in respect of Mr Fearnley's evidence is set out at paragraphs 27-31 of Exhibit A1. In particular at paragraph 27 the Appellant says:
"In cross examination, the Applicant admits that he had opportunities to ignore Mr Bardis and to retreat before Mr Bardis got a grip on his neck (see Fearnley T38, lines 22-36). On the Applicant's own evidence, Mr Bardis was exhibiting clear signs of aggressive behaviour in circumstances where the Applicant knew that Mr Bardis was angry at hearing that the Applicant had "dobbed him in" over the chalk mark issue. The Applicant's own evidence was that he went over towards Mr Bardis in these circumstances and confronted him. Despite opportunities to ignore Mr Bardis and/or retreat as Mr Bardis' actions appeared more and more aggressive, the Applicant stood up to Mr Bardis and responded in an aggressive way to Mr Bardis' aggression. (See the evidence of Fearnley in cross examination at T34 to T39. In particular, see Fearnley T38, from line 1 onwards.)"
[39] The Appellant also contended that the Applicant was uncertain and evasive throughout his oral evidence.
[40] In our view the first two findings subject to challenge were reasonably open on the evidence. The points advanced by the Appellant must be seen in the context of the Applicant's evidence as a whole. True it is that the Applicant admitted that he had opportunities to ignore Mr Bardis and retreat. In particular the Applicant conceded that he could have retreated when Mr Bardis first shouted at him and when he threw his welding helmet on the ground in an aggressive way. But at this stage the Applicant did not appreciate the seriousness of the impending confrontation. In his statement he says:
"On 10/2/99 Steve started work at 6.00 am and I started at 7.00. He was actually working on the job as I went to my job in parts making. I heard him screaming towards me. This made me very aware of Steve. I understood basically what he was screaming about. I took one step forward to go to my work area, but I decided to sort the problem out now, which I guessed to be about Brett Bizon, instead of having the problem in the lunch room in front of 100 other men. I walked towards Steve. He was in his work area in panel fab.
Steve threw his welding helmet on the ground as I approached. Steve is an intimidating sort of man anyway. I didn't know if he was joking or not; you don't know this with Steve. I knew what he was angry about but I didn't know if he was deliberately exaggerating."25
[41] This statement was confirmed in the Applicant's oral evidence when he said that at this stage he didn't know whether Mr Bardis was serious or not.26 The Applicant also admitted that he could have retreated when Mr Bardis started waggling his finger at him - at that stage the Applicant did appreciate that Mr Bardis was serious. But by the time the Applicant became aware of the seriousness of the confrontation it is also apparent that events were moving very quickly. As the Applicant put it: "It's not how you read it on the paper and what happened, actually. It happened within seconds ... I feel as though I never had a chance to retreat."27 We return to the duration of the incident shortly.
[42] We also note that during the course of his cross-examination the Applicant rejected the proposition that he responded in an aggressive way to Mr Bardis' aggression.28 In relation to the contention that the Applicant was uncertain and evasive throughout his oral evidence we do not think this is supported by a fair reading of the Applicant's evidence as a whole. We acknowledge that the Applicant was occasionally uncertain as to some of the details of the incident but as he says: "This is 12 months ago. It happened within a second or two."29
[43] The Applicant wasn't the only witness who had difficulty recalling all of the details of the incident given the passage of time. Mr Morgan had similar problems;30 as did Mr Formosa.31
[44] In relation to the third finding subject to challenge there is a clear conflict between the Applicant's evidence on the one hand and that of Messrs Morgan and Formosa on the other. Both Mr Morgan and Mr Formosa gave evidence that the Applicant continued to assault Mr Bardis when Mr Bardis' grip on the Applicant's neck had been released and Mr Bardis was hunched back against a wall "cowering" from the Applicant.32 The Applicant's evidence on this point appears in the following exchange:
"Mr Addison: So why did you hit him?
Mr Fearnley: To defend myself. To get him off me. Basically, to stop him from choking me.
Mr Addison: Okay, can I tell you - let us go through this a little bit more. So he had you by the throat, he was pushing you backwards, his grip loosened because you tripped over a step?
Mr Fearnley: Down the step.
Mr Addison: Down the step. You hit him to get him off you?
Mr Fearnley: Yes.
Mr Addison: What happened immediately after that?
Mr Fearnley: He still had me by the throat and he was hitting me. He punched me.
Mr Addison: Right?
Mr Fearnley: So then it became from - like a choking to just a da, da, da sort of thing and that was about it.
Mr Addison: So then you say he had a hold of you, where did he have a hold you after that?
Mr Fearnley: He had hold of my right arm, I think. The doctor's report stated which arm. I can't remember which arm. I think it's the right arm.
Mr Addison: Well, he had hold of your arm, did he?
Mr Fearnley: Yes, he did.
Mr Addison: You say he was punching you and you were punching him?
Mr Fearnley: Yes.
Mr Addison: I put it to you that there will be evidence from Mr Formosa, who I understand is sitting in the court here, that Mr Formosa will say that Bardis was crouched down in the south west area of the shop, cowering from you and that you were going at Steve. What do you say to that?
Mr Fearnley: No, that's not correct. Whether Steve - he still had hold of me and was still hitting me and I stopped. As soon as Steve stopped, I stopped and I helped him up. So whether Tony has seen something on a different angle or what, really I don't know.
Mr Addison: Okay. So you go into a position where there is a strangle hold. You hit him to get him off you. He has still got a hold of you. He is hitting you and you are hitting him. Why were you hitting him?
Mr Fearnley: To stop. I just wanted everything to stop. He was still being aggressive. He was still at me and I wanted to get away."33
[45] His Honour found that insofar as the Applicant punched Mr Bardis, he was not "going on with it" but rather was "reacting to a real threat to his physical well being".
[46] It is implicit in his Honour's finding that he preferred the Applicant's evidence on this point to that of Messrs Morgan and Formosa. While the decision subject to appeal does not detail his Honour's reasons for preferring the Applicant's evidence a number of factors support the view he took.
[47] First, there was evidence of some antipathy between the Applicant and Mr Morgan. Mr Morgan had been a member of the Applicant's union, the AMWU, but resigned and joined the AWU because as he put it "I didn't like the corruption that was going on in the yard".34 In his evidence the Applicant said that he "had a lot of problems" with Mr Morgan stemming from an incident in which the Applicant, acting on the instructions of his union, had gone through an AWU picket line.35 When asked whether he thought Mr Morgan had fabricated his account of the incident in order to get back at him for breaking a picket line the Applicant said: "Yes, I think he spiced it up. Yes."36 Mr Morgan denied that he had given his account of events because he had it in for the Applicant.37
[48] Second, Mr Formosa's view of the incident was limited. As he put it in his oral evidence:
"Mr Formosa: From where I was standing, I could see the applicant putting an arm over the top like that, so I couldn't see the contact point, but I could see the arm swinging over the top.
Mr Dalton: And where was your view?
Mr Formosa: I was standing behind Keith Fearnley, looking towards that area, so Steve Bardis was actually facing me. Keith Fearnley's back was towards me."38
[49] This is important because it could explain a conflict in the evidence of the Applicant and Mr Formosa. The Applicant maintained that after Mr Bardis let go of his neck he still had a hold of his arm and was punching him.39 In his evidence Mr Formosa maintained that at one stage Mr Bardis released his grip on the Applicant's neck and they separated.40 In their submissions in the proceedings at first instance Tenix relied on this evidence and that of Mr Morgan to support its contention that the Applicant continued to assault Mr Bardis after any relevant threat had disappeared.41 But Mr Formosa's account of the fight may simply reflect the position from which he viewed it and Mr Morgan's evidence on this point is far from unequivocal.
[50] Mr Morgan was not sure whether Mr Bardis had a hold of the Applicant throughout the fight as is apparent from the following extract from Mr Morgan's cross-examination:
"Mr Addison: Did Mr Bardis have hands on Mr Fearnley at all?
Mr Morgan: Mr Bardis had hands moving out in front of him. I am not sure of the contact. As I have stated now, I never saw Keith's fist actually hit the head, the same as I didn't see Mr Bardis either. I mean at one stage it was a mass of hands there.
Mr Addison: So you did not actually seen any punches connecting with anybody?
Mr Morgan: I didn't see the punches connect, I saw them thrown, and that's written in here.
Mr Addison: And you are positive that you saw Bardis's hands moving in front of him?
Mr Morgan: Bardis's hands were in front of him. Yes they were definitely in front of him. They were definitely in front of him. I had a side on view.
Mr Addison: He did not have a hand on firmly at all?
Mr Morgan: I couldn't see. I couldn't tell you yes or no."42
[51] It is also relevant to note that the day after the fight the Applicant's doctor examined him and observed "tenderness and redness" on his upper arm. These injuries are consistent with the Applicant's evidence that Mr Bardis had a hold of his arm during the fight.43
[52] Two other points clearly emerge from the evidence and in our view they support his Honour's finding. First at an early stage in the confrontation Mr Bardis had his hands on Mr Fearnley's neck. Mr Fearnley's evidence on this point is set out in the following passage from his oral evidence:
"Mr Addison: What do you mean by he grabbed you around the neck. How did you grab you around the neck?
Mr Fearnley: Viciously. I couldn't breathe. I just couldn't breathe. I just thought I was going to die.
Mr Addison: So you were concerned for your life, I guess?
Mr Fearnley: Well, I can only describe it like this. It's like someone drowning. That's the effect it had on me.
Mr Addison: So you could not breathe at all?
Mr Fearnley: Not at all, no."44
[53] Mr Fearnley was not cross examined on this aspect of his evidence. Indeed during his cross-examination Mr Fearnley said "I was scared out of my wits and I wanted to get away, and I felt as though I was fighting for my life."45 The seriousness of Mr Bardis' assault is confirmed by the fact that some two hours after the incident Mr Formosa observed that the Applicant was distressed and was still having difficulty breathing. Mr Formosa also observed welts on the Applicant's neck.46 The day after the fight the Applicant consulted his doctor who noted that his examination of the Applicant revealed "tenderness and redness on both sides of the neck as well as on the upper arm".47 It should also be born in mind that Mr Bardis is a more physically imposing figure than the Applicant. Mr Formosa described Mr Bardis as being 5'10" tall, stocky build weighing around 14-15 stone. The Applicant is a much smaller man - about 5'7" and 11 stone.48
[54] Second, the actual physical confrontation was over in a matter of seconds. Mr Formosa was some 25 metres from Messrs Bardis and Fearnley when he became aware of the fight. He started moving quickly towards them. At that time Mr Bardis had his hands on the Applicant's neck. Mr Formosa then saw the Applicant throw two or three high punches but did not see the punches connect. At this stage Mr Formosa was jogging towards the other two men and was only some 10 metres away. On his own evidence he was "travelling very fast" and it took him just five or six seconds to reach them and break up the fight.49
[55] The evidence of both Mr Morgan50 and the Applicant confirm that the incident was over very quickly. Mr Fearnley said "It felt like just a few seconds. It was like a car accident. It was a nightmare."51
[56] The nature of Mr Bardis' assault led the Applicant to believe that he was fighting for his life. In our view his response was reasonable and proportionate to the threat he faced. In circumstances where the physical confrontation was over in a matter of seconds and there is an evidentiary conflict about what happened towards the end of that period there is no sound basis for overturning his Honour's finding that the Applicant was not going on with it but rather was reacting to a real threat to his physical well being. This finding was clearly reasonably open on the evidence.
Policy
[57] The Appellant contended that his Honour had failed to give sufficient weight to the Appellant's policy on fighting. The policy in question is set out in the Appellant's "House Rules". The "House Rules" were included as Attachment 3 to the Tenix Defence Systems Pty Ltd Certified Agreement 1998-2001. It was argued that Tenix's need to maintain the integrity of it's policy constituted, in the circumstances of this case, a valid reason for the termination of the Applicant's employment.
[58] In this context the Appellant relied on the following observation of Moore J in the AWU-FIME case:
"While fighting may, in some instances, have a carthartic effect it can also heighten tensions and lead to situations where trust and cooperation is lost entirely. In my opinion QAL was entitled to both adopt and give effect to a policy that prohibited fighting with the sanction of dismissal if it was breached. QAL's need to maintain the integrity of the policy constituted, in the circumstances, a valid reason for the termination of both Merritt's and Sonter's employment."52
[59] Tenix's policy with respect to fighting states:
"The following list contains examples of the types of actions which constitute serious misconduct and if proven, could result in instant dismissal.
N.B. The list is not limited to, but is inclusive of, viz:
..._ Intimidating, or assaulting other employees, customers or clients on Company property or when attending Company functions."53
[60] In the decision subject to appeal his Honour dealt with the company's submission in respect of its policy in the following terms:
"[24] I have also taken into account the Respondent's "House Rules". They are to be found in an Appendix to the certified agreement which applied to the Applicant's employment. A copy of that agreement is contained in a Handbook which is said to be provided to each employee. The Applicant acknowledged that he had been given a copy of the Handbook. He did not, however, admit that he had actually read the House Rules. The Handbook itself contains a tear off slip at the front which, it would appear, is supposed to be signed by the employee for the purpose not only of verifying that the employee has received a copy but also for the purpose of having the employee acknowledge that she/he has read and understood, amongst other things, the House Rules. I note in passing that no such slip signed by the Applicant was produced in evidence.
[25] The Applicant admitted that he knew that when he started punching, "there could be problems" but also stated that he "was defending himself".
[26] The House Rules contain a list of "examples of the types of actions which constitute serious misconduct which, if proved, could involve instant dismissal". That list, however, does not use the expression "fighting". Fighting per se does not, for the purposes of the House Rules constitute "serious misconduct which, if proved, could involve instant dismissal". Rather, the House Rules recognise that the reasons for an employee being involved in a fight need to be considered before that employee's actions could be classed as "intimidating, or assaulting other employees ... on Company property or when attending Company functions".
[27] In general, fighting at the workplace is unacceptable. Involuntary involvement in a fight or involvement for the purposes of self defence may well be reasonable. ...
[28] As stated earlier, I am of the view that the Applicant's original and continued involvement in the fight was in his own self defence. I am not satisfied, therefore, that, in the circumstances, there was a valid reason for termination of the Applicant's employment."54
[61] We do not discern any error in the manner in which his Honour approached this issue. The Appellant's policy is relevant but it is not determinative of the matter before the Commission. As Sheppard and Heeney JJ observed in Bostik (Australia) Pty Ltd v Gorgevski (No. 1):
"Employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable."55
[62] In our view his Honour's conclusion that there was no valid reason for the termination of Mr Fearnley's employment was reasonably open to him and does not disclose an error warranting correction on appeal.
Remedy
[63] The Senior Deputy President ordered that Mr Fearnley be reinstated with continuity of employment but no back pay. The Appellant contends that reinstatement should not have been ordered because it was inappropriate to do so.
[64] His Honour's findings in respect of remedy are set out at paragraphs 34-37 of the decision subject to appeal in the following terms:
"[34] As to the question of remedy, the Applicant seeks reinstatement. Where a finding has been made that a termination of employment was harsh unjust or unreasonable, reinstatement remains the primary remedy. Once that finding has been made, the first remedy that must be considered is reinstatement. It is only after a determination has been made that reinstatement is "inappropriate" that consideration is to be given to the question of compensation.
[35] Generally, fighting at the workplace is not to be condoned if, for no other reason the threat it imposes to occupational health and safety. Reinstatement of an employee dismissed for fighting would ordinarily seem to be inappropriate. However, consideration must be given to all the circumstances surrounding the incident that gave rise to the termination.
[36] In this case, I have already found that the Applicant was an involuntary participant in the fight and the blows struck by him were struck in self defence. His reaction to Mr Bardis' calling out to him may, with hindsight, be viewed as an error of judgment on his part. However, it was not such an error as should prevent his continuing to be an employee of the Respondent. He was an employee of longstanding and there were no complaints about either the quality of his work or his behaviour prior to this incident. Reinstatement, in the circumstances of this case, would not, in my view, jeopardise the integrity of the Respondent's policy about fighting in the workplace.
[37] Having regard to the matters referred to in s.170CH(2) of the WR Act, I consider that an order for reinstatement with maintenance of continuity of employment would be appropriate. Having regard to all the circumstances, including the Applicant's evidence as to employment engaged in since the termination, I do not consider that any order should be made under s.170CH(4)(b) of the WR Act."
[65] In McLauchlan's case a Full Bench of the Commission said:
"Given the broad nature of the discretion in s.170CH(3) and (6) we think that the question of whether reinstatement is `appropriate' in a particular case will be a matter for the judgment of the Commission member at first instance based on the evidence and material before the Commission."56
[66] We agree with the above observation. In this case the Appellant - both at first instance and on appeal - relied on the evidence of Mr Sullivan, the Tenix project manager at its Williamstown Shipyard, in support of its contention that reinstatement was inappropriate. When Mr Sullivan was asked what his reaction would be if the Applicant was reinstated he replied:
"It's very clear in our award and conditions of employment that fighting results in dismissal, and I think it would be a bad message that we send to the rest of the workplace that you can fight but still have a job here. It makes it very difficult to control."57
[67] Two observations may be made in relation to Mr Sullivan's evidence. First, if Mr Sullivan's reference to the conditions of employment at Tenix is taken to be a reference to the "House Rules" then it is an oversimplification to summarise the position with the proposition that "fighting results in dismissal". That is not what the employer's policy says (see paragraph 70 infra). Nor is it consistent with Mr Irving's evidence that it would be harsh to terminate someone who when faced with a threat acted in self defence and assaulted a fellow employee.58 Mr Irving is the Manager - Industrial Relations for Tenix.
[68] Second, it is important to recognise that his Honour's order does not mean that Mr Fearnley has escaped without penalty. The order subject to appeal did not incorporate any component for remuneration lost by Mr Fearnley as a result of the termination of his employment (see s.170CH(4)(b)). As a result the Applicant has suffered a significant financial penalty as a consequence of this incident. The difference between his current earnings and his remuneration as a Tenix employee amounts to some $191.92 per week. Hence the extent of Mr Fearnley's lost remuneration is in excess of $10,000.
[69] In our view his Honour's decision to make an order for reinstatement was reasonably open on the evidence before him and does not disclose an error warranting question on appeal.
Other Appeal Points
[70] The decision we have reached in respect of his Honour's conclusion that there was no valid reason for the Applicant's termination renders it unnecessary for us to deal with the other points advanced by the Appellant. Indeed the Appellant effectively conceded that this was so. In the decision subject to appeal his Honour made it clear that the absence of a valid reason would of itself be sufficient to lead him to conclude that the termination was harsh, unjust or unreasonable. In this context we also wish to make it clear that in our view there is no substance in the Appellant's contention that his Honour failed to take into account the need to ensure that a "fair go all round" is accorded to both the employer and employee concerned.
[71] We note that in determining whether or not a termination of employment is harsh, unjust or unreasonable, the Commission must consider each of the matters referred to in paragraphs 170CG(3)(a) to (e).59 But the Commission is only required to have consideration to such matters in so far as they have application60 or are relevant to the factual circumstances of the particular case.61 If there is no valid reason then paragraph 170CG(3)(b) and (c) have no application. This is because these paragraphs refer to "that reason" and "any reason related to the capacity or conduct of the employee". In the context of s.170CG(3) these references are clearly to the "valid reason" referred to in s.170CG(3)(a). Similarly, unless the termination is related to unsatisfactory performance paragraph 170CG(3)(d) is of no relevance. We find it difficult to conceive of the circumstances in which it could reasonably be said that despite the absence of a valid reason for termination the employee had been accorded procedural fairness and therefore the termination was not "harsh, unjust or unreasonable". As the Full Bench in Steggles Limited v West observed:
"Pursuit of an otherwise faultless process does not imbue merit into a situation otherwise devoid of such a characteristic."62
[72] In reaching this conclusion we do not wish to be taken to be agreeing with two particular observations made in the decision subject to appeal.
[73] The first concerns his Honour's reliance on the fact that the Applicant was never shown a copy of Mr Formosa's statement during the investigation into the incident. This fact was used to support his Honour's conclusion that the Applicant was not truly given an opportunity to put whatever he wished in answer to the allegations made against him.
[74] In the proceedings before us it was agreed that the Applicant was not shown a copy of Mr Formosa's statement but Mr Addison, on behalf of the Applicant, did not contest the proposition that the substance of what was in the statement was put to the Applicant. In our view that was all that the employer was required to do - that is to put to the Applicant the substance of what was said against him.
[75] We accept the Appellant's submission that in conducting a disciplinary inquiry an employer is not required to adopt the standards applied to a judicial inquiry. In this regard we adopt the following remarks by Heerey J in Schaale v Horscht Australia Ltd:
"It would be harsh, unjust and unreasonable for an employer to dismiss an employee summarily on the ground of serious misconduct without taking reasonable steps to investigate those allegations and give the employee a fair chance of answering them: see Gregory at 413; 471; Wheeler v Philip Morris Ltd (1988) 32 IR 323 at 346; 97 ALR 282 at 306.
In my opinion the respondent's conduct in this regard did not breach the requirements of the award. The allegation against Mr Schaale was a clear and simple one. Did he breach security by climbing over the fence? The award has to operate "in a practical way in a commercial and industrial environment": Gregory at 413; 471. Employers are not required to have the skills of police investigators or lawyers. By inspecting the site of the alleged entry and taking statements from potential witnesses it seems to me the respondent acted quite reasonably. In the interview on the following morning the allegation was put very clearly to Mr Schaale and he persisted in an account which the respondent was reasonably entitled to reject."63
[76] It is clear from the above extract that what is required is that the employer take reasonable steps to investigate the allegations and give the employee a fair chance of answering them.
[77] The second point relates to his Honour's observations about the attempts by Union delegates to mislead the company as to the true nature of the incident on 10 February 1999. In his regard his Honour said:
"I have taken into account the fact that the Applicant participated in an attempt by union representatives to downgrade the seriousness of the incident. I am prepared to assume that the union representatives were taking whatever steps they perceived appropriate to "save" the jobs of the Applicant and Mr Bardis. Without condoning their conduct in this respect or the Applicant's participation in that conduct, it would be naïve to have expected either the union representatives or the Applicant to have acted otherwise."64
[78] We do not wish to be taken to agree with the above observation. In our view the attempt to misdirect the Company's investigation of the incident was a serious matter and should have been accorded more weight in his Honour's consideration of whether the Applicant had been afforded a reasonable opportunity to respond to the allegations made against him. In this context we note that Mr Fearnley was a reluctant participant in the attempt to misdirect the investigation.65
[79] Leave to appeal is not a mere formality and a substantive submission is required if leave is to be granted.
[80] The requirement for an arguable case of either legal error or that the discretion has been miscarried means that the Appellant must demonstrate that their case has a reasonable prospect of success. This requirement is rigorously applied in order to ensure that the standing and purpose of Commission proceedings at first instance are not diminished by automatic or unwarranted access to an Appeal Bench.
[81] We also note that in order to warrant a decision granting leave to appeal more is usually required than simply establishing a case that might have persuaded the Full Bench to exercise the discretion in another way as if the matter was being considered at first instance. In the absence of an arguable case of either legal error or that the discretion was miscarried the Commission would not grant leave to appeal merely to substitute its decision for the decision under appeal.66
[82] We are satisfied that the conclusion reached by the Senior Deputy President in the decision subject to appeal was reasonably open on the material before him. We refuse leave to appeal. We also order that the stay order issued by Vice President Ross on 28 April 2000 [Print S5330] in respect of this matter be set aside.
BY THE COMMISSION:
Appearances:
R. Dalton for Tenix Defence Systems Pty Ltd.
M. Addison for K. Fearnley.
Hearing details:
2000.
Melbourne:
March 23.
May 5.
Printed by authority of the Commonwealth Government Printer
<Price code G>
1 Print S3559, 25 February 2000 per Senior Deputy President Williams.
3 Transcript 17 December 1999, p.124 at lines 14-18.
7 Edwards v Giudice [1999] FCA 1836 per Moore J.
8 (1936) 55 CLR 499 at 504-5; see Construction, Forestry, Mining and Energy Union v Giudice at pp 28-29.
9 (1936) 55 CLR 499 at pp 504-505.
12 I.138/1993 at p. 9; also see Mobil Oil v Giuffrida, Print N4832, 11 September 1996 per Polites SDP, Duncan DP and Hodder C.
13 Print N4832, 11 September 1996 per Polites SDP, Duncan DP and Hodder C.
14 (1998) 83 IR 102 at 109-110.
16 Exhibit A4 at Appeal Book Tab 7; Exhibit A5 at Appeal Book Tab 14 (attachments TFS1 and TFS2); and Transcript 16 December 1999, pp 12-16 and 25-50.
17 Exhibit B5, attachment TFS7 at Appeal Book Tab 14; Exhibit B8, attachment A12 at Appeal Book Tab 13.
18 Exhibit B5, attachment TFS4 at Appeal Book Tab 14.
19 Exhibit B5, attachment TFS5 at Appeal Book Tab 14.
20 Exhibit B8, attachment AI2 at Appeal Book Tab 13; Transcript 16 December 1999 at pp 62-70.
21 Exhibit B4 at Appeal Book Tab 15; Transcript 16 December 1999 at pp 72-75, 81-89 and 103-104.
22 Print P2322, 28 July 1997 per Ross VP, Drake DP and Cargill C; see further Department of Social Security and Dean Uink, Print P7680, 24 December 1997 per Ross VP, Drake DP and Palmer C at 16-17.
23 Print R4471, 11 May 1999 per RossVP, Polites SDP and Foggo C at paras 44-54.
24 (1990) 171 CLR 167 at 178-179.
26 Transcript 16 December 1999, p.14 at lines 18-25; p.33 at lines 9-28 and p.38 at lines 9-10 and 33-36.
27 Transcript 16 December 1999, p.38 at lines 19-23.
28 Transcript 16 December 1999, p.35 at lines 22-29.
29 Transcript 16 December 1999, p.37 at lines 4-5.
30 Transcript 16 December 1999, p.63 at lines 14-15; p.64 at lines 25-26 and p.65 at lines 28-32.
31 Transcript 16 December 1999, p.94 at lines 11-12; p.103 at lines 16-21 and p.105 at lines 4-6.
32 Mr Morgan: Exhibit B2, Transcript 16 December 1999, pp 63-64; Mr Formosa: Exhibit B4, Transcript 16 December 1999, pp 73-74 and 84.
33 Transcript 16 December 1999, p.16 at lines 1-28.
34 Transcript 16 December 1999, p.61 at lines 24-25.
35 Transcript 16 December 1999, p.42 at lines 28-34.
36 Transcript 16 December 1999, p.43 at lines 1-2.
37 Transcript 16 December 1999, p.66 at lines 7-19.
38 Transcript 16 December 1999, p.73 at lines 1-6.
39 Transcript 16 December 1999, p.16 at lines 1-15.
40 Transcript 16 December 1999, p.74 at line 1 and pp 84-85.
41 See the final written submission of the respondent at paragraphs 37-42.
42 Transcript 16 December 1999, p.68 at lines 1-13.
43 Transcript 16 December 1999, p.16 at lines 11-15.
44 Transcript 16 December 1999, p.15 at lines 10-15.
45 Transcript 16 December 1999, p.41 at lines 15-16.
46 Transcript 16 December 1999, p.104 at lines 18-25.
47 Exhibit A5, Transcript 16 December 1999 at pp 20-21.
48 Transcript 16 December 1999, p.82 at lines 2-8.
49 Transcript 16 December 1999, p.83 at lines 23-29 and p.84 at lines 1-7.
50 Transcript 16 December 1999, p.68 at lines 15-26.
51 Transcript 16 December 1999, p.15 at lines 30-32.
52 (1995) 62 IR 385 at 392-393.
57 Transcript 17 December 1999, p.124 at lines 15-18.
58 Transcript 22 December 1999, p.190 at lines 1-4.
59 Edwards v Giudice and Others (1999) 169 ALR 89, at p.92 per Moore J; King v Freshmore (Vic) Pty Ltd, Print S4213, 17 March 2000 per Ross VP, Williams SDP and Hingley C.
60 Chubb Security Australia Pty Ltd v Thomas, Print S2679, 2 February 2000 per McIntyre VP, Marsh SDP and Larkin C.
61 King v Freshmore (Vic) Pty Ltd.
62 Print S5876, 11 May 2000 per Watson SDP, Williams SDP and Smith C at para 9.
63 (1993) 43 IR 249 at 252; also see Department of Social Security v Uink, (1997) 77 IR 244.
64 Print S3559 at paragraph 19.
65 Transcript 16 December 1999, p.17 at lines 12-25.
66 Corporation of the Catholic Archdiocese of Brisbane v. A.S.U., Print K7698, 19 May 1993 per Moore VP, Keogh SDP and Bacon C:
"The formation of the opinion under s.45(2) leading to the grant of leave to appeal against a decision ordinarily requires considerably more than establishing a case that might have persuaded the full bench to exercise the discretion in another way as if the matter was being considered at first instance."