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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision
issued by Senior Deputy President Kaufman on 17 July 2003
Marigene Larew Micheletto
s.170CE application for relief in respect of termination of employment
Marigene Larew Micheletto
Korowa Anglican Girls' School
JUSTICE GIUDICE, PRESIDENT
DEPUTY PRESIDENT HAMILTON
MELBOURNE, 11 NOVEMBER 2003
Appeal - Workplace Relations Act 1996 s.170CE - Commission acting on its own motion to dismiss an application before the applicant's case had been heard - right to a hearing - circumstances justifying less than a full hearing.
 This is an appeal, for which leave is required, by Ms Micheletto (the appellant) against a decision given by Senior Deputy President Kaufman on 17 July 2003.1 The appellant had been employed by Korowa Anglican Girls' School from January 1992 until the termination of her employment on 26 January 2003. At the time of her engagement her position was described as Curriculum Coordinator, a position which was subsequently renamed Director of Studies. On 16 January 2003 she lodged an application pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) for relief in relation to the termination of her employment. In the decision from which leave is sought to appeal, the Senior Deputy President dismissed the appellant's application.
Time of Lodgement
 The decision was given orally on 11 July 2003 and subsequently published, as already indicated, on 17 July 2003. The notice of appeal was filed on 8 August 2003 and was accompanied by an application for an extension of time within which to lodge the appeal. By rule 11(2)(a) and (c) of the Australian Industrial Relations Commission Rules 1998 an appeal must be initiated within 21 days of the decision appealed against or within such further time as is allowed by a Full Bench. There was no opposition to the application for an extension of time. We grant the application.
The Decision under Appeal
 The appellant's application was listed for hearing before Senior Deputy President Kaufman on 11 July 2003. Prior to the hearing the Commission issued directions for the filing of submissions and witness statements. The appellant filed a witness statement and a statement of contentions. When the matter came on for hearing it did not follow the usual course.
 At the start of the proceedings on 11 July the Senior Deputy President asked the appellant's representative to confirm various factual matters contained in the appellant's witness statement, indicated further that he had not read any of the material filed by the respondent and expressed the view "I find it very difficult to see where there was any harshness, unjustness or unreasonableness in the position."2 There was then a lengthy exchange with the appellant's representative who answered a number of questions and submitted that the case should go into evidence. The Senior Deputy President then dismissed the application. He did so without hearing any submissions at all from the respondent's counsel.
 The Senior Deputy President prefaced his ex tempore decision with the following statement:
"PN105 Well, I am prepared to accept that the evidence is as outlined in - or is that that appears in the witness statement of Marigene Larew Micheletto that was filed in accordance with the directions given and filed on 28 april 2003. The witness statement extends to 70 paragraphs. I have outlined to Mr Dircks the salient points from that evidence as I understand them, and Mr Dircks has agreed I have accurately outlined those salient points.
PN106 Mr Dircks, you have failed to persuade me that the termination of Ms Micheletto's employment was harsh, unjust or unreasonable, even if I accept, as I am prepared to, every word in her witness statement. In those circumstances, it is not necessary to call evidence. You have not made out your case and I will give you the reasons why I form the view that you have not made out your case and that why it is that this application must be dismissed."3
 In the preamble to his reasons for decision published on 17 July 2003, the Senior Deputy President outlined the procedure he had adopted and the reasons for it. The preamble includes the following passage:
"iv. Although Mr Dircks had expected that his client would be called to verify her witness statement I declined to follow this course. A purpose of the directions requiring parties to file all the material upon which they intend to rely prior to the hearing is to remove the necessity that evidence-in-chief be led orally, thus saving time as well as avoiding any party being taken by surprise. Mr Dircks did not suggest that he wished to lead evidence of anything that had come to light since he had filed the applicant's witness statement, although he wished to have his client attest to the fact that no performance issues had been raised with her because there was some suggestion in the material filed on behalf of the respondent, which I had not read, that it had had concerns with the applicant's performance. My decision was made on the assumption that no performance issues had been raised with the applicant. As I pointed out to Mr Dircks, the respondent was not required to lead any evidence. At its highest the case for the applicant on this point, even were she to have given evidence, would have been that no performance issues had been raised with her."4
The Grounds of Appeal
 The grounds of appeal are numerous, discursive and imprecise. Written submissions were also filed. On the hearing of the application the appellant's representative, Mr Dircks, summarised his client's case on appeal as follows:
"PN5 Suffice to say that we believe that the process adopted by his Honour in the hearing of the case was, overall, deficient and that there was a failure to hear the case as we would have proposed. To not hear any evidence at all which meant that we were not able to proceed with the case in a way that gave full justice to the appellant."5
We intend to deal with the appeal on the basis that this passage encapsulates the appellant's complaint.
The Nature of the Proceedings
 An application for relief in respect of termination of employment is a personal proceeding pursuant to statute. Whatever the grounds for the application the Commission is required to try to settle the application by conciliation. If conciliation is unsuccessful the applicant may elect to have the application determined: s.170CFA. Depending on the grounds, the application may be determined by the Commission or by the Federal Court of Australia. Where the application is based on the ground that the termination was harsh, unjust or unreasonable the application is determined by arbitration by the Commission: ss.170CE(1)(a) and 170CFA(1). Where the application is based on the ground that the termination was unlawful the application is determined by the Federal Court or another court of competent jurisdiction: e.g. ss.170CE(1)(b) and 170CFA(4). We are concerned in this case with the arbitration by the Commission of an application based on the ground that the termination was harsh, unjust or unreasonable.
 Section 170CG(3) sets out the matters to which the Commission must have regard in determining whether a termination was harsh, unjust or unreasonable. Section 170CH deals with the remedies which may be ordered. Section 170CI provides that an order made under s.170CH, subject to any right of appeal, is final and binding. Section 170CIB provides that the Commission may dismiss an application if an applicant fails to attend after giving the applicant reasonable notice and a reasonable opportunity to be heard. Section 170CEA provides inter alia that a respondent may move for the dismissal of an application under s.170CE on the ground that the application is beyond the Commission's jurisdiction and the Commission is obliged to deal with the application before taking any other step in the proceedings. The Commission's power pursuant to s.111(1)(g)(iii) to discontinue the hearing of a matter on the ground that further proceedings are not necessary or desirable in the public interest is, by s.170JE(3), made inapplicable to arbitration pursuant to Part VIA.
 It can be seen that the arbitration required by s.170CG(3) is one between parties - called the applicant and the respondent - and that the Commission is the arbitrator.
 Section 110 deals with the procedure of the Commission. By force of s.170JE(2), s.110(2) of the Act applies to s.170CE(1)(a) proceedings. Section 110(2) reads where relevant as follows:
"110 Procedure of Commission
(2) In the hearing and determination of an industrial dispute or in any other proceedings before the Commission:
(a) the procedure of the Commission is, subject to this Act and the Rules of the Commission, within the discretion of the Commission;
(b) the Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just; and
(c) the Commission shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.
(4) The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument."
 While there is a broad discretion afforded to the Commission by s.110(2), particularly s.110(2)(a), it is well established that the discretion is to be exercised in accordance with the rules of procedural fairness: see, for example, Media Entertainment and Arts Alliance; Ex parte Arnel and Others.6
 The question raised by this appeal is whether the procedure adopted by the Senior Deputy President was consistent with the rules of procedural fairness. We have considered the various submissions made by the appellant to persuade us that the procedure adopted requires an inference to be drawn that the Senior Deputy President was biased and did not permit the appellant a reasonable opportunity to present its case. While we reject any suggestion of actual bias, there are a number of issues that require close examination.
The Right to a Hearing
 It is implicit in the statutory provisions which we have referred to that once an applicant has elected to have his or her application determined by arbitration he or she acquires a right to have the case heard. There is a corresponding duty in the Commission to hear the applicant's case. The nature of the applicant's right is, in the time-honoured phrase, a right to their day in court. The right to a hearing is not unqualified. Circumstances may render it just that something less than a full hearing is appropriate. For example, the Act specifically provides for summary dismissal of an application if there is clearly no jurisdiction (s.170CEA) or if the applicant fails to prosecute its case (s.170CIB). There may be other circumstances in which an application might be dismissed without a full hearing and without infringing the rules of procedural fairness. It is necessary to explore in some detail what those circumstances might be.
No Case Submissions
 In civil proceedings an application might be struck out at the conclusion of the plaintiff's case in response to a submission on behalf of the defendant that there is no case for the defendant to answer, a no-case submission. Except in a narrow class of cases the defendant would be required to elect between making a no-case submission and calling evidence. Accordingly, if the no-case submission were to fail the defendant would not be permitted to call evidence. Whether the respondent is put to its election is a matter in the discretion of the judge.
 There is no reason why a no-case submission should not be permitted in s.170CE proceedings, subject to the same limitations. As just indicated, in civil proceedings a no-case submission is normally made at the end of the plaintiff's case. At that stage the issues in the case and the evidentiary questions which may require resolution have been exposed through examination in chief and cross-examination. For that reason in our view in the arbitration of claims made under s.170CE(1)(a) a no-case submission should generally only be permitted at the end of the applicant's case, unless the case is one in which the conclusion can be reached at the outset that the respondent has no case to answer.
 In civil litigation there are circumstances in which a no-case submission may be made at the outset of proceedings and before the plaintiff's evidence commences. The court has a discretion to dismiss an application before any evidence is heard on the basis of the pleadings and other material filed by the plaintiff. In General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (General Steel), Barwick CJ accepted that "the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion."7 His Honour went on to state:
"It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 where he says (at p.91): "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (at p 84), in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."8
 It is apparent that a decision to dismiss an application before the plaintiff has put its case should be reached with extreme caution and only on the basis that the application is manifestly untenable or groundless.
 In our view the Commission may properly dismiss an application pursuant to s.170CE(1)(a) in response to a no-case submission made before the applicant has put its case. In considering such a submission the Commission should be guided by the principles in General Steel, that is, the decision should be taken with extreme caution and only on the basis that the application is manifestly untenable. We note that Vice President Lawler expressed a preference for those principles in considering an application pursuant to s.170CEA(1): McAviney v Austcorp No. 501 Pty Ltd t/as Markets Hotel.9 The same approach was approved by a Full Bench in relation to the issue of a certificate pursuant to s.170CF(4): Wright v Australian Customs Service.10 These decisions support the view, if support be needed, that an applicant should not be deprived of the right to have their application heard except in the clearest of cases.
The Decision in this Case
 This was not a case involving the principles to be applied when an application is made for the dismissal of an application before the applicant's case had been heard. No submission was made by the respondent that the application should be struck out summarily. The Senior Deputy President decided the case on normal arbitral principles and not on the basis of the principles discussed in General Steel.
 In this case the respondent did not contend, so far as may be known, that there was no case to answer. Nor was it put to its election. Nor was it required to expose its case in cross-examination of the applicant or otherwise. The Senior Deputy President put himself in the shoes of the respondent and the case became one between the applicant and the Commission. The procedure adopted gave the respondent an unfair advantage in these respects.
 But most importantly, the application could only properly have been dismissed before the applicant had put its case if the Commission concluded on the material filed that there was no reasonable prospect of it succeeding. It is clear that the Senior Deputy President did not apply that test but simply determined the matter according to normal arbitral principles. It follows that the applicant was denied a hearing of its application and the Commission failed to discharge its duty to hear the case.
 There may be cases in which it is appropriate for the Commission to indicate that an application is unlikely to succeed. In a case in which there is a clearly fatal flaw in the application the Commission might be justified in bringing that matter to the attention of the parties at the earliest opportunity. Equally the Commission might invite the respondent to make a no-case submission where the case is patently weak. The instances in which the Commission might dismiss an application on its own motion without breaching the rules of procedural fairness would be rare. Where it is a question of value judgments and the weighing up of considerations for and against as required by s.170CG(3), it is doubtful whether the Commission could ever dismiss on its own motion without acting unfairly.
The Witness Statement
 There is another relevant consideration. While there are aspects of civil litigation which apply with equal force to the determination of applications pursuant to s.170CE(1)(a) there are some which do not. Many of those who appear before the Commission do not have legal qualifications and formal pleadings are not required. A more flexible approach is often required in order to ensure that the substantial merits of the case are presented and dealt with. In this case, in response to questions from the Senior Deputy President, the appellant's representative indicated that the appellant might give further evidence in relation to some of those questions. The Senior Deputy President took the view that the witness statement filed by the appellant should be taken as a complete statement of the evidence she wished to call and no further evidence should be permitted. He went on to say in his decision that the only area in which the appellant's representative had indicated that additional evidence would be called from the appellant was on the question of her work performance and that he was prepared to assume in her favour that there were no work performance issues.
 First of all it seems to us that the Senior Deputy President was in error in finding that the only additional evidence which had been foreshadowed was in relation to the appellant's work performance. To be fair to the Senior Deputy President, however, the submissions of the applicant's representative lacked clarity in a number of respects. The transcript indicates that evidence was also foreshadowed in relation to a question from the Senior Deputy President about another matter:
"PN68 THE SENIOR DEPUTY PRESIDENT: Did your client not have 15 months to inquire as to the reason and to respond if she really didn't know what the reason was?
PN69 MR DIRCKS: Well, if you want to hear the applicant on that - - -
PN70 THE SENIOR DEPUTY PRESIDENT: No, I am asking you - - -
PN71 MR DIRCKS: Well, I am - - -
PN72 THE SENIOR DEPUTY PRESIDENT: - - - on the evidence that you have provided in accordance with the directions, which is your client's evidence which for the purposes of this debate I am prepared to accept, that is your case at its highest, on the facts that you have presented there was 15 months, was there not, where your client could have raised the question of whether or not there was a reason for her termination of employment, could she not? Could she not have raised it?
PN73 MR DIRCKS: Well, your Honour, my client will say, if she is given the opportunity, that after - - -
PN74 THE SENIOR DEPUTY PRESIDENT: She said everything that she wants to say in her witness statement, Mr Dircks.
PN75 MR DIRCKS: Well, your Honour, that - I don't believe that - - -
PN76 THE SENIOR DEPUTY PRESIDENT: Well, why isn't the witness statement fuller?
PN77 MR DIRCKS: Your Honour, there are things that routinely come out in the hearing of witnesses in this Commission that go beyond the four walls or the confines of a witness statement.
PN78 THE SENIOR DEPUTY PRESIDENT: Mr Dircks, the purposes of the directions in unfair dismissals is to ensure that the evidence is presented prior to the hearing.
PN79 MR DIRCKS: Your Honour, and the evidence has been put there.
PN80 THE SENIOR DEPUTY PRESIDENT: Yes."11
 Although the appellant's position may have been somewhat vague, it seems clear enough that when the Senior Deputy President expressed a view in argument about the significance of the appellant not having raised the reason for the school's decision to replace her during the 15 months in question, it was stated that there was an explanation which the appellant could give in evidence. This indicates that the Senior Deputy President was mistaken when he found that the only question on which the appellant sought to lead further evidence was her work performance. The appellant's representative took a backward step, however, when it was suggested that the witness statement should have been comprehensive. There are two problems with the suggestion that the witness statement should have been comprehensive in the circumstances. The first is that it is not uncommon for witness statements to be supplemented in oral evidence, either in response to material filed by the other party or for some other reason, although this is obviously a matter for the discretion of the Commission. The second problem is that nothing in the Rules of the Commission or in the directions issued in the case indicated that the applicant could not supplement the contents of the witness statement when giving evidence-in-chief.
 The case should have been permitted to go into evidence as the appellant's representative submitted at the time. Once it is accepted, as it must be, that the application may have taken on a different complexion after the appellant's case had been heard, it becomes clear again that the appellant was denied the opportunity to put her case and the Commission failed in its duty to hear the case.
 We have no doubt that the Senior Deputy President acted with the best of intentions to save all parties and the Commission the time and expense involved in the full hearing of the case because he believed that the application would not ultimately succeed. But, to paraphrase the words of Dixon J in Dey, quoted in the passage from General Steel set out earlier, great care must be exercised to ensure that under the guise of achieving expeditious finality an applicant is not improperly deprived of the opportunity to have his or her case heard by the Commission.
 In the circumstances, for the reasons given, the decision must be quashed. We grant leave to appeal, uphold the appeal, quash the decision and direct that the appellant's application be heard and determined by Deputy President Ives.
 We have not dealt in this decision with the test to be applied by the Commission in deciding whether or not to uphold a no-case submission made at the end of the applicant's case. It was recently suggested that the Commission would only uphold a submission of that kind if it was persuaded that the applicant's legal and evidentiary case was so weak that even in the absence of evidence from the respondent the application could not succeed: Govender v Department of Education and Training.12 In the circumstances it is not necessary that we comment on that formulation. As is clear, the Senior Deputy President was not dealing with a no-case submission made at the conclusion of the applicant's case.
BY THE COMMISSION:
A. Dirks for M.L. Micheletto.
D. Macken for Korowa Anglican Girls' School.
Printed by authority of the Commonwealth Government Printer
<Price code D>
2 U2003/359, Transcript at [PN16].
3 U2003/359, Transcript at [PN105] and [PN106].
5 C2003/5039, Transcript at [PN5].
6 (1994) 179 CLR 84 at 89.
7 (1964) 112 CLR 125 at 128-9.
8 (1964) 112 CLR 125 at 129-30.
9 PR926606, 13 January 2003.
10 PR926115, 23 December 2002.
11 U2003/359, Transcript at [PN68] - [PN80].
12 PR935118, 12 September 2003 at para. 21.