PR946375

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.45 appeal against decision

PR932855 issued by Senior Deputy President Williams on 11 June 2003

Sandra Oram

(C2003/5961)

Sandra Oram

and

Derby Gem Pty Ltd

(U2002/6951)

VICE PRESIDENT LAWLER

  

SENIOR DEPUTY PRESIDENT KAUFMAN

  

COMMISSIONER BLAIR

SYDNEY, 22 JULY 2004

Applications for extension of time and leave to appeal - appeal against decision to summarily dismiss unfair dismissal application and further decision refusing to revoke or vary dismissal order - Commission deliberately deceived by advocate for applicant - duty of industrial advocates in proceedings before the Commission - proper response of Commission where serious misconduct alleged against an advocate who is not a legal practitioner - where conduct is related to an issue in the proceeding the Commission may, after according procedural fairness, make findings in relation to conduct and may, in an appropriate case, observe that such conduct provides a proper basis for refusing leave to advocate in future matters.

REASONS FOR DECISION

Preliminary Observation

[1] Sandra Oram ("the appellant" or "Ms Oram") seeks leave to appeal from an order made on 3 April 2003 by Senior Deputy President Williams1summarily dismissing her application for relief filed consequent upon the termination of her employment by Derby Gem Pty Ltd ("the respondent"). His Honour dismissed Ms Oram's application for relief because she had failed to comply with directions for the filing of documents. On 11 June 2003 his Honour also dismissed an application by Ms Oram that he vary or revoke his order2. The appeal, which was filed out of time, was initially against only the order of 11 June 2003. With the consent of the respondent, leave was granted to amend the Notice of Appeal so that what we now have before us is an appeal against both orders. As leave to appeal is required, these proceedings also deal with that issue as well as Ms Oram's application for leave to appeal out of time.

[2] These reasons for decision are considerably lengthier than an appeal against a dismissal of a claim due to a failure to file documents in accordance with directions issued by the Commission would normally warrant. However, as serious issues relating to the conduct of an advocate in proceedings in the commission have arisen, we have felt it necessary to go into considerable detail and to quote much more extensively from the transcript than would normally be the case.

The Proceedings

[3] On 12 December 2002 an application for relief in respect of termination of employment pursuant to section 170CE of the Workplace Relations Act 1996 ("the Act") was filed on behalf of the appellant by Mr G Bailey, a non-legally qualified advocate.

[4] Conciliation was conducted on 5 February 2003. The matter did not settle. A Form R25 Election to Proceed to Arbitration was filed by facsimile transmission on 17 February 2003. On 20 February 2003 the matter was listed for mention and/or arbitration at 9.00am on 7 April 2003. Directions attached to the notice of listing required the applicant to file her outline of submissions and evidence by no later than noon on 17 March 2003. The President's Practice Note of 24 January 2002 was also attached. Nothing was filed on behalf of the applicant by the due date. The respondent filed its documents by facsimile transmission on 27 February 2003 in accordance with the directions, as well as a Notice of Motion to dismiss the application for want of jurisdiction. On 21 March 2003 the hearing listed for 7 April 2003 was cancelled and the matter was listed for a "Non Compliance" hearing on 3 April 2003.

[5] Part of the directions issued on 20 February 2003 stated:

[6] On 3 April 2003 the matter came before Senior Deputy President Williams. The applicant was represented by her agent, Mr Bailey. Mr Bailey provided an explanation for the applicant's non-compliance with the directions issued by the Commission. Senior Deputy President Williams was not satisfied with the explanation and dismissed Ms Oram's application for relief. The transcript of that hearing is short. For reasons that will become apparent later in these reasons we reproduce it in full.

[7] Some six weeks later, on Thursday, 15 May 2003, Mr Bailey, on behalf of the applicant filed an Application for Variation or Revocation of Orders pursuant to section 170JD of the Act. That Application was constituted by a 4-page facsimile transmission and is part of the Commission's original file, which is Exhibit 10 on this appeal. It consists of a covering page, the formal Application for Variation or Revocation of Orders, a copy of a single page email purporting to be from "GS Bailey" dated 17 March 2003 at 5:02:47 pm to "kevin.donnellan@air.gov.au". Mr Donnellan is an officer in the Commission's Registry. There is nothing to suggest that that email was forwarded to the respondent or its representatives.

[8] The grounds of the revocation application were:

[9] The body of the email dated 17 March 2003 states simply:

[10] The final document in the application for revocation of 15 May 2003 is an undated document entitled Facsimile Transmission which, one infers, is the attachment referred to in the email dated 17 March 2003. That document reads:

[11] As it transpires, it seems that the email of 17 March 2003 with its attachment had not been received by Senior Deputy President Williams prior to the filing of the application for revocation. We infer from the submissions of Mr Bromley of counsel, who appeared for the respondent on 3 April 2003, that the respondent had also not received the email of 17 March 2003. There is nothing on the face of the email to suggest that it was sent to the respondent or its representatives.

[12] By letter dated 16 May 2003, in response to the application for revocation of the previous day, the associate to Senior Deputy President Williams wrote to Mr Bailey on behalf of his Honour including, inter alia:

[13] On the same day the solicitors for the respondent, in opposition to the application for revocation of the order of 3 April 2003, sent a facsimile transmission to the Commission and Mr Bailey enclosing a facsimile transmission they had sent to Mr Bailey on 18 March 2003.

[14] The Commission files contain a 15-page facsimile from Mr Bailey to the chambers of Senior Deputy President Williams, dated 23 May 2003, with a covering note that includes:

[15] In addition to the coversheet, the facsimile includes a 2-page written "Submission of the applicant" signed by Mr Bailey, an 8-page document provided by the applicant to Mr Bailey constituted by a list of people "aware of the situation" (apparently a list of persons the applicant was nominating as potential witnesses to Mr Bailey), a section headed "General Notes" and a section headed "Incidents", which is essentially a chronology of the events relevant to the applicant's claim to have been unfairly dismissed by the respondent. The facsimile also contains a letter of 5 December 2002 from one of the respondent's principals to the applicant asserting that the applicant's separation was by way of voluntary resignation, two Medical Certificates provided to the applicant in respect of stress relating to her work situation and an Employment Separation Certificate.

[16] On 23 May 2003 the solicitors for the respondent sent a letter to Senior Deputy President Williams noting that they had, that day, "received from Gary Bailey at 12.02 pm ... the submission of the applicant dated 23rd May 2003". The letter notes "the material in that submission is the first time we have seen these particulars or have been aware of the list of witnesses". The letter goes on to raise various matters adverse to the applicant's position and notes that the solicitors will be unable to attend to the matter during the month of June.

[17] In a written decision dated 11 June 2003, Senior Deputy President Williams, without hearing further from the parties, rejected the applicant's Application for revocation3.

[18] His Honour summarized the proceedings of 3 April 2003 as well as the submissions of Mr Bailey in support of a revocation order. He noted the correspondence from the respondent's solicitors which he had received on 16 May 2003 and which included their response to Mr Bailey's offer of 17 March. His Honour observed that it was open to conclude that the email request of 17 March for an extension of time was a recent invention given that Mr Bailey had not referred to it at the hearing on 3 April and, we infer, because it was not on the Commission's file. He also noted that another conclusion was that Mr Bailey was ill-prepared for the non-compliance hearing and had utterly failed in his duty to properly and adequately represent his client's interests at that hearing, or that Mr Bailey was of the view that the Commission does not take its directions seriously. His Honour found that, in any event, the email of 17 March, even if it had been sent, did not constitute an application for an extension of time; it merely foreshadowed such an application should the matter not have settled. His Honour also doubted that Mr Bailey had made a follow-up telephone call as again there was no record of this on the file, nor had Mr Bailey mentioned it at the 3 April hearing. Given that no attempt had been made by or on behalf of the applicant to comply with the direction out of time or within the extended time period allegedly requested, his Honour was not satisfied that either the applicant or Mr Bailey on her behalf took reasonable or adequate steps to request a variation of the directions. He also found that that failure resulted in there being no material on the file to determine whether the substantive application had any merit; a matter relevant to the exercise of the discretion to extend a time period. His Honour declined to revoke his order dismissing the substantive application.

[19] As noted above, this is an appeal from the decisions of Senior Deputy President Williams of 3 April 2003 to dismiss the substantive application and the decision to refuse to vary or revoke that order, being the decision made in writing on 11 June 2003. The Notice of Appeal was filed out of time and, consequently, the appellant applies also for an extension of time in which to file her appeal and, necessarily, also seeks leave to appeal from the two decisions.

[20] The appellant filed an affidavit in support of her applications. That affidavit gives a brief overview of her case against the respondent. Commencing at paragraph 23, the balance of the affidavit is concerned with the appellant's dealings with Mr Bailey and, briefly at the conclusion of the affidavit, her retainer of the solicitors who act for her in the present appeal. Upon reading that affidavit, it was apparent to us that if Ms Oram's evidence in relation to her dealings with Mr Bailey were to be accepted, then having regard to what Mr Bailey submitted to Senior Deputy President Williams at the compliance hearing on 3 April 2003, Mr Bailey's conduct may well have involved gross negligence, dishonesty, and a deliberate attempt to mislead the Commission. The relevant portions of Ms Oram's affidavit, insofar as Mr Bailey is concerned, follow:

[21] A proper exercise of the discretion to extend time in which to file an appeal turns, inter alia, on the Commission finding that there is an acceptable reason for the delay in filing the appeal. The respondent opposed an extension of time. Accordingly, the correctness of what Ms Oram alleged against Mr Bailey was placed in issue as to whether time for filing the appeal should time be extended. It is also relevant to issues arising in connection with the determination of whether leave to appeal should be granted and, if leave is granted, on the appeal proper.

[22] We will return to the conduct and evidence of Mr Bailey in detail. As will be apparent from that discussion and the findings that we make in relation to Mr Bailey, we were wholly unimpressed with the evidence of Mr Bailey. We formed the clear view that Mr Bailey was prepared, on occasions, to say anything that he perceived would advance his position without regard for the truthfulness of what was being said. A consideration of the transcript of the hearing before us demonstrates the unsatisfactory nature of Mr Bailey's evidence. On the other hand, we were impressed with the evidence of Ms Oram. She struck us as a careful and truthful witness. To the extent that she made concessions or admissions against interest in cross-examination we did not see this as detracting from her credibility but, rather, they tended to underscore the apparent care and truthfulness with which she approached the giving of evidence in the witness box. We generally prefer and accept the evidence of Ms Oram wherever it conflicts with that of Mr Bailey. For present purposes we make the following findings:

Implicit in these findings is a finding that there was no conversation between Mr Bailey and Ms Oram on or about 17 March 2003 as alleged by Mr Bailey.

[23] Set against these findings, Mr Bailey conducted himself before Senior Deputy President Williams in a way that was deceitful and dishonest and deliberately intended to mislead the Commission.

[24] Mr Bailey's first substantive statement to Senior Deputy President Williams on 3 April 2003 was:

In context, Mr Bailey, in making the emphasised remark, was seeking to convey to Senior Deputy President Williams that lack of funds had been an impediment to the proper preparation of the case until that point. Such an intimation was false.

[25] The explanation given by Mr Bailey to Senior Deputy President Williams for the failure by the applicant to comply with the directions was the expectation of Mr Bailey and the applicant that the matter would settle:

We are satisfied that the emphasised statements were deliberately false and misleading. The reason for non-compliance was because Mr Bailey, no doubt in the hope that the matter would settle, had failed to carry out Ms Oram's instructions and neglected to undertake the preparation necessary to comply with the directions. In context, the emphasised statements sought to convey to Senior Deputy President Williams that, with a view to limiting her expense, a conscious decision had been made by the client to refrain from preparing the case in the expectation - both of Mr Bailey and the client - that the matter would settle. In fact, Mr Bailey at no time discussed offers of settlement with Ms Oram. When regard is had to the correspondence between the representatives of the parties we do not think that an advocate in Mr Bailey's position could reasonably have formed the view that the matter would settle or would be likely to settle. In particular, the letter from the respondent's solicitors opposing the revocation application discloses the implausibility of Mr Bailey's assertion to Senior Deputy President Williams. In their facsimile transmission of 16 May 2003 they expressed outrage as to the basis of the application and attached a copy of a fax they had sent to Mr Bailey the day after the appellant's material had been due. That facsimile was apparently in reply to a telephone conversation of the previous day with Mr Bailey. The only offer the respondent was prepared to make was "as a matter of compromise and only to save the time of appearing at the hearing our client is prepared to pay your client's costs to be fixed at $1,200.00." The fax went on to indicate that it was the only offer that would be made and it was open to 5.00 pm the following day after which it was withdrawn. Mr Bailey was drawing a long bow in suggesting that the matter had been likely to settle.

[26] Mr Bailey misled Senior Deputy President Williams on the issue of whether there had been a request for an extension of time. The transcript records the following exchange:

Mr Bailey's response to the statement by the Senior Deputy President implicitly accepted that there had been no request for an extension of time in which to comply with the directions and sought to advance an explanation for that omission. However, such an application had in fact been made, albeit that the document had not found its way to the Commission file. Mr Bailey's response wrongly implied that there had been no such application. This inexplicably misled Senior Deputy President Williams contrary to the interests of his client.

[27] At Transcript PN10 Senior Deputy President Williams asked whether Mr Bailey made his client "aware of the possible effect of non-compliance". Mr Bailey replied:4

We are satisfied that at no time did Mr Bailey make Ms Oram aware of the possible consequences of non-compliance and his assertion to the contrary to Senior Deputy President Williams was a deliberate lie.

[28] At transcript PN13 Mr Bailey said to Senior Deputy President Williams:

We are satisfied that Mr Bailey gave Ms Oram no such advice and that this assertion to Senior Deputy President Williams was a deliberate lie.

[29] At transcript PN14 Senior Deputy President Williams asked Mr Bailey: "Did [Ms Oram] instruct you to seek an extension of time?" Mr Bailey replied: "Yes, she has now". Again, we are satisfied that the question of an extension of time was not discussed with Ms Oram and Mr Bailey's assertion that Ms Oram had "now" given him instructions to seek an extension of time was a deliberate lie. Indeed, when Senior Deputy President Williams pressed Mr Bailey on whether Ms Oram gave instructions to him to seek an extension of time, he stated:5

[30] It was true that Ms Oram had given Mr Bailey "full instructions to go ahead with her case". However, those had been Ms Oram's consistent instructions since the commencement of the matter and to imply, as Mr Bailey did, that instructions of that sort had only latterly been given following the failure of settlement negotiations involved a deliberate deception on the part of Mr Bailey.

[31] The truth of the matter was that the fault for non-compliance with the directions lay entirely with Mr Bailey. Ms Oram had given Mr Bailey instructions to prepare the case and proceed to a hearing; she had provided Mr Bailey with extensive instructions and the names of potential witnesses and she had promptly attended to the memoranda of fees rendered by Mr Bailey. No doubt Mr Bailey had hoped that the matter would settle and he may have believed that the matter would settle, albeit that we do not accept that a reasonable advocate in Mr Bailey's position could have held such a belief. The simple fact of the matter is that the directions were not complied with because Mr Bailey had failed to do what he had been retained to do. An advocate observing the basic standards of candour and honesty expected of advocates in the Commission would have admitted responsibility for the non-compliance and craved the indulgence of the Commission on the basis that it would be unfair to visit the neglect of the representative on the client. Instead, Mr Bailey made a series of statements to Senior Deputy President Williams that, taken together, misled Senior Deputy President Williams as to his, Mr Bailey's, own responsibility for the non-compliance and falsely insinuated that such responsibility lay with his client. Mr Bailey's conduct in this regard is nothing short of disgraceful and a gross breach of the fiduciary duties he owed to Ms Oram.

The Appeal

extension of time to appeal

[32] The notice of appeal was filed on 14 October 2003. It was accompanied by an application for an extension of time to institute an appeal. The appeal is made under s.45(1)(g) of the Act and is said to be "against a decision not to revoke or vary an order dismissing an application for relief ...". At the hearing before us leave was granted, with the consent of the respondent, to the appellant to amend the notice of appeal so as to also make it an appeal against the decision of 3 April 2003 dismissing Ms Oram's substantive application.

[33] The first order was made on 3 April 2003, and the refusal to revoke it occurred on 11 June 2003. It is self evident that the appeal was instituted well beyond the 21 days allowed by R.11(2).

[34] Given the overlap of issues arising on the application for extension of time, the application for leave to appeal and, if leave is granted, the appeal proper, with the concurrence of the parties, the matter proceeded on the basis that we were dealing with the two applications for leave and the appeal proper concurrently.

[35] In a nutshell Ms Oram contends that she was misled by her representative, Mr Bailey, and that it was only when she obtained alternate independent advice that she knew what to do. In her affidavit Ms Oram detailed the chronology of her dealings with Mr Bailey. She discovered that there had not been compliance with the directions only when she received the notice of listing on 21 March 2003 advising that the listing for 7 April had been vacated and that the matter had been listed for a non-compliance hearing on 3 April 2003. She immediately contacted Mr Bailey and kept in touch with his office. She was thereafter led to believe by his office that the matter was under control. She was not informed that the hearing had gone ahead on 3 April or that her application for relief had been dismissed on that day. Indeed, it would appear that she was not told of the application to revoke or its result and that she only learned of that application when she received a copy of Senior Deputy President Williams' decision from the Commission on Thursday 12 June 2003. On the following Monday she attempted to contact Mr Bailey. She rang him again the next day and was told by him that he did not have a copy of the decision. Ms Oram sent him a copy of it by facsimile transmission that day. He did not call her back as he had said he would. Despite several attempts she was not able to speak with him until 1 July, when he told her that he was preparing a letter for her and that a barrister would be taking over the matter. On 16 July, Mr Bailey's assistant phoned her to tell her that attempts were being made to arrange a conference with the barrister. Ms Oram told her that she had still not received the letter from Mr Bailey.

[36] Ms Oram waited for a couple of weeks during which time she heard nothing more from Mr Bailey. At the end of the first week of August she contacted the Law Institute of Victoria's referral service, at which time she discovered that Mr Bailey was not a solicitor. She was subsequently referred by the Law Institute to her present solicitors, who she contacted during the first week of September. She was asked if she could wait a week until Mr Duggal commenced employment there as its employment law specialist. She instructed Mr Duggal on 12 September and he briefed counsel on 16 September. Her solicitors then contacted the Law Institute of Victoria to seek its assistance, but as Mr Bailey was not a solicitor, no assistance was forthcoming. The Notice of Appeal was filed on 14 October.

[37] In opposing the extension of time to file the appeal Mr Bromley points to the delay of some three weeks between the last contact Ms Oram had with Mr Bailey's office on 16 July and her engaging her present solicitors, as well as the delay from then until the appeal was lodged; a little over a month. Mr Bromley referred us to Dundovich v P & O Ports6 for an exposition of the principles guiding the exercise of the discretion to extend time for the filing of an appeal. We agree that the matters relevant to the exercise of the Commission's discretion include:

reason for the delay

[38] We have set out the appellant's explanation for the delay. It is apparent that Ms Oram had put her trust in Mr Bailey, who she had no reason to suppose would act for her other than with integrity and in a professional manner. Mr Bailey holds, and held, himself out as a specialist consultant. She acted with reasonable diligence until the time that she received Senior Deputy President Williams' decision on 12 June 2003. We have set out the sequence of events after 12 June. We accept the she has a satisfactory explanation for the time it took her to engage her solicitors. She had been continually fobbed of by Mr Bailey and his staff until she finally despaired and approached the Law Institute. In the circumstances we also accept that there is a satisfactory reason for the delay between the time she engaged her solicitors and the lodging of the appeal. Ms Oram had placed her faith in her new legal representatives who acted with reasonable diligence in acting for her. We doubt that she was in any position to have them proceed with greater alacrity. Accordingly, we find that there is a satisfactory explanation for the delay.

the length of the delay and prejudice to the respondent

[39] The delay is substantial, but in the absence of prejudice to the respondent, having accepted that there is a satisfactory explanation for the delay, we do not believe that the lengthy period of the delay is fatal to the application for extension of time. Mr Bromley properly conceded that apart from the effect on witnesses' memories, his client was not prejudiced by the delay.

the prospects of success on the appeal

[40] For reasons that we will later articulate we are satisfied that, if Ms Oram's version of events is accepted, the appellant has a reasonable prospect of success on both the question of leave to appeal and on the substantive appeal.

conclusion on the issue of extension of time to appeal

[41] It follows that we have decided to grant the extension of time sought. Pursuant to R.(11)(2)(c) we extend the time period for lodging the appeal until the date upon which it was lodged.

leave to appeal and the appeal

[42] We extract and adopt the following summary of relevant principles by Full Bench in Smith and Kimball v Moore Paragon Australia Ltd7

[Footnotes deleted]

[43] We consider it to be manifestly in the public interest to grant leave to appeal in this case. For the reasons that appear later, we find that Mr Bailey deliberately misled and deceived both the Commission and his client. In circumstances where the evidence establishes, prima facie, that the misconduct of a party's representative resulted in a miscarriage of justice the matter would generally be of such importance that in the public interest leave to appeal should be granted, and pursuant to s.45(2) of the Act, must be granted.

did senior deptuy president williams err?

[44] This case raises difficult questions about what constitutes "error". That is so because a good deal of any error was caused by the dishonesty and incompetence of Mr Bailey. For instance, when Mr Bailey said to Senior Deputy President Williams "...and I have had contact with the client as early as last week, who ensures me that she can get some money to me to run her case." there can be little doubt that he was seeking to have the inference drawn that a reason for the delay was that Ms Oram had not paid Mr Bailey's fees prior to the deadline for the filing of her material. It is clear from Mr Bailey's and Ms Oram's evidence before us that that was certainly not the case. To the extent that his Honour may have relied on the fact that Ms Oram had not prosecuted her case with due diligence because she had not paid Mr Bailey, that was an error. However, it was an error that must be sheeted home to the dissembling submission of Mr Bailey. Yet, at the time, it was not erroneous for his Honour to accept what Mr Bailey had told him as there was nothing to indicate that he wasn't being truthful. This raises the question of whether in the circumstances Senior Deputy President Williams was in error in deciding to make the order to dismiss the substantive application.

[45] The basis of Senior Deputy President Williams' decision of 3 April was that there was no attempt by the appellant to comply with the directions, nor had there been any request for a variation to or extension of them. His Honour, finding that there was no satisfactory explanation for the failure to comply, nor material upon which he could consider the merits of the substantive application, dismissed it. Although his Honour cannot be criticized in relation to his finding that there had been no request for an extension of time - this was what Mr Bailey had told him - we now know that such a request had in fact been sent to the Registry. It seems to us, therefore, that his Honour's finding involved an error for the purposes of, and as contemplated by, s.170JF(2). Putting aside jurisdictional facts where the issue is not whether the finding was open but whether the finding was correct, it will typically be the case that a finding of fact cannot be characterised as involving error where such finding was reasonably open on the evidence and material actually before the member. However, it is otherwise if the fact in question relates to what did or did not occur in the Registry. In relation to such matters the issue is what in fact occurred.

[46] On the application for revocation Mr Bailey relied on different grounds to those advanced at the original hearing. They are set out in paragraph 7 of these reasons. Not surprisingly, given that Mr Bailey had not mentioned at the hearing of 3 April that he had emailed a letter seeking an extension on 17 March, nor had he mentioned that he had made a follow up telephone call, the Senior Deputy President was doubtful that either of those events had occurred. As we now know, having had the benefit of a search conducted by Mr Donnellan, a facsimile transmission from Mr Bailey was received in the Registry on 17 March 2003. Mr Donnellan could not open the attachment, and appeared not to have placed a copy of the fax on the file. As indicated at paragraph 8 of these reasons the facsimile merely stated "please find enclosed Attachment for your attention." Mr Donnellan could not recall the telephone call with Mr Bailey.

[47] Upon receipt of the respondent's objection to the revocation application his Honour required Mr Bailey to file and serve submissions in support of the application. His Honour indicated that he might decide the matter on the papers, which he ultimately did.

[48] Mr Bailey filed a two page submission and attached what appears to have constituted the bulk of his file. The submissions repeated Mr Bailey's assertions that he had written to the Commission on 17 March 2003 and followed up with a telephone call to Mr Donellan. The submission contended that "the Applicants (sic) representatives did take reasonable steps in notifying the Commission of its request" and that insufficient time to deal with evidence could lead to a denial of natural justice. Mr Bailey went on to say that his client's case was meritorious and referred to the attachments to the submission. Extraordinarily, the attachments comprised Ms Oram's instructions to Mr Bailey and some other documents and were also sent to the solicitors for the respondent with the submission. There is no suggestion that Mr Bailey sought his client's instructions to the privilege or confidentiality subsisting in those documents.

[49] At paragraph 16 of his decision Senior Deputy President Williams found that even were he to accept that the letter of 17 March 2003 had in fact been sent, it nevertheless did not constitute a request for an extension of time. He held that to the extent that it did contain a request it was contingent on there being no settlement of the matter. We disagree. In our view, properly construed, the letter of 17 March was a request for an extension of time for filing the documents required by the directions. The relevant paragraph reads: "Should this matter not settle, we would request that the Commission extend the time for the said directions until Friday 21 March 2003." That seems to us to be a request that the time for compliance with the directions be extended by four days. Implicit in the request is an indication that the matter might settle, in which case there would, of course, not be any need to comply with the directions.

[50] It seems to us that his Honour's finding that there was no request was understandably influenced by his well-founded scepticism as to whether the letter had indeed been sent. Mr Bailey was negligent and grossly incompetent in not referring to that letter at the hearing of 3 April, and that led his Honour into error.

[51] Although his Honour erred in finding that there had been no request, he correctly observed that in any event no documents were filed by 21 March. This led him to conclude that he was "not satisfied that either the applicant or Mr Bailey on her behalf took either reasonable or adequate steps to request from the Commission a variation to the Commission's directions."8 Thus at the time of the non-compliance hearing on 3 April 2003, although there had been a request for an extension of time to 21 March, no documents had been filed. Mr Bailey's implausible explanation for that is that not having heard whether his request had been granted he thought it better to wait until the non-compliance hearing.

[52] We are also of the view that his Honour erred in holding at paragraph 20 that the failure of the appellant to comply with his directions resulted in there being nothing before the Commission to enable him to form a view as to whether her case had sufficient merit to warrant her being permitted to pursue her application. In accordance with his Honour's direction on the revocation application Mr Bailey filed the documents to which we have referred. A perusal of the appellant's instructions to Mr Bailey discloses that if her version of events is believed she may well have a case for relief in respect of the termination of her employment. That material was before the Senior Deputy President.

The Rehearing

[53] Having granted leave to appeal, the appeal proceeds by way of a rehearing. The appellant's case is essentially that she was blameless and should not be penalized for the misconduct of her representative. Her unwavering instructions to Mr Bailey were that he was to pursue her claim, she was at all times ready and able to do what was necessary to comply with the directions, she paid Mr Bailey's fees promptly, she provided him with the information that he would have needed in order to comply with the directions in adequate time, she immediately pursued Mr Bailey when she found out about the non-compliance hearing and she was unaware that Mr Bailey was dealing with her case in the Commission in the manner to which we have previously referred.

[54] For the respondent it is put that on the material before him Senior Deputy President Williams came to the correct conclusion, and that in any event Ms Oram has not prosecuted her appeal with alacrity. We have dealt with these matters on the issue of extension of time to appeal. We do not accept the respondent's contention that we should hold against the appellant the fact that she did not comply with the directions after Mr Bailey sought the revocation of the order dismissing her substantive application. There was no point in her doing so unless and until the order was revoked. Indeed, there were no extant proceedings, other than her application for revocation.

[55] It was also put that the sins of Ms Oram's representative should not be visited upon the respondent and that Ms Oram had the ability to seek redress against Mr Bailey. As is clear from his inability to provide security for costs, Mr Bailey is apparently impecunious, so any rights Ms Oram might have against him may be more illusory than real.

[56] The respondent submits that given the short period of the appellant's employment, some 16 weeks, the relief available to her would have little practical effect, should the appeal be allowed and should she succeed on her substantive application. We are not persuaded by this argument. Ms Oram has already invested a good deal of time and energy into the prosecution of her case. It is a matter for her as to whether to continue with it should she be granted that right by us.

[57] Finally, the respondent contends that here has been no miscarriage of the exercise of Senior Deputy President Williams' discretion such that, applying the principles enunciated in House v The King9, this Full Bench would be justified in interfering with his Honour's decisions. Whilst we accept that because this an appeal against a discretionary decision the House v The King principles are applicable, we are of the view that the Senior Deputy President's discretion miscarried in that, not being fully appraised of the facts, as we are now, he failed to take into account the highly material consideration of Mr Bailey's conduct and erred in the manner we have identified.

[58] In this rehearing we are accordingly entitled to exercise our own discretion and given that we have the material to do so we allow the appeal and set aside his Honour's decisions and orders. The appellant is to file and serve the material required by the directions within fourteen days of the date of this decision, the respondent within fourteen days thereafter, and the matter will be heard by Commissioner Blair on a date to be fixed by Commissioner Blair. Any costs application in relation to the applications and appeal before us will be heard by Vice President Lawler.

The role of the Commission in relation to misconduct by advocates

[59] Section 42 of the Act relevantly provides:-

[60] If one of the criteria in s.42(3) is satisfied, a party may, with the leave of the Commission, be represented by "counsel, solicitor or agent". In the major capital cities there are industrial advocates who, while not admitted to practise as solicitors or barristers, regularly seek, and are granted, leave appear on behalf of applicants and/or respondents as "agent" in proceedings before the Commission. There is no system of registration for industrial advocates.

[61] It is essential to the proper administration of justice generally, and the interests of justice in particular matters, and clearly in the public interest, that representatives who appear for parties in the Commission act with, and observe, the highest standards of probity, candour and honesty. The capacity for members to rely upon the honesty and integrity of representatives and place faith in what they say and do before the Commission is essential to the proper dispatch of the Commission's business.

[62] A grant of leave to appear pursuant to s.42(3) of the Act is based upon a presumption that is so obvious that it ought not need to be stated; namely, that the representative to whom leave is granted will conduct him or herself with probity, candour and honesty. The duty of advocates in that regard has long been recognised by the Commission. For example, in AFMEPKIU v Energy Developments Ltd10 a Full Bench noted:11

[63] Legal practitioners throughout Australia are subject to disciplinary regimes under which an appropriate authority can take action in relation to professional misconduct and other improper behaviour by a legal practitioner. The ultimate sanction when such misconduct is established is the removal of the legal practitioner's right to practise. It is well established that the purpose of such disciplinary proceedings is protective rather than punitive.12 It is fundamental to the proper administration of justice and the protection of the public that persons who behave dishonestly have no place appearing as solicitor or counsel before a Court.

[64] There is no equivalent disciplinary regime in relation to industrial advocates who are not legal practitioners but who regularly appear before the Commission. Accordingly, when the Commission is confronted with evidence that suggests an industrial advocate may have engaged in dishonest or disgraceful behaviour it falls to the Commission to take appropriate action. The Commission is a creature of statute and can only exercise such powers as are conferred on it explicitly or implicitly by Parliament. Within the limits of those powers, the Commission is entitled to, and should, in an appropriate case, take action in the public interest to protect the integrity of its own processes.

[65] We take the view that it is an affront to the interests of justice in the broadest sense for there to be behaviour on the part of an advocate which involves dishonesty or a deliberate attempt to mislead the Commission, and that it is in the interests of justice and in the public interest for the Commission to take such steps as are properly available to it to ensure that this does not occur. We take the view that it is clearly within the power of the Commission to make findings about conduct by an advocate where that conduct is relevant to an issue in dispute between the parties.13

[66] Where the findings so made are that there has occurred serious misconduct, the Commission may observe that the conduct so found may provide a proper basis to refuse leave to the representative to appear in future matters before the Commission. We recognise that the discretion conferred by section 42 cannot be fettered so that, where such an observation is made, members of the Commission in future matters must retain a discretion pursuant to section 42 to grant leave to the representative in question notwithstanding the observation. It goes without saying that an observation of the sort to which we have referred ought not be made unless the representative in question has been given a proper opportunity to be heard and any allegations of deceit or dishonesty or other serious misconduct have been established to the standard referred to in Briginshaw v. Briginshaw14.

[67] Moreover, where, in an appropriate case, the protective function identified above has been enlivened, we take the view that it is entirely appropriate, and within the power conferred by s.110(2) of the Act, for the Commission to introduce material at its own initiative and to take a more interventionist approach to the questioning of witnesses than would ordinarily be appropriate.

Mr Bailey

[68] As we stated earlier, Mr Bailey's conduct is an issue in these proceedings and it has been necessary that we make findings in relation to it. As has already become clear, the findings are of an extremely serious and troubling nature. Their ramifications will also have serious consequences for Mr Bailey. We have been at pains to ensure that he has had a reasonable opportunity to put whatever he wanted to in relation to the allegations made against him.

[69] In order to have Mr Bailey give evidence on her behalf, the solicitors for the appellant had arranged for a summons to give evidence and to produce documents to be served on Mr Bailey. That summons15 required Mr Bailey to attend before this Full Bench at 10.00 a.m. on Monday, 8 December 2003 (being the date that the appeal and associated applications were listed for hearing) "and so from day to day until the hearing of the abovementioned matter is completed or until you are excused from further attendance, to give evidence on behalf of Ms Oram". The summons required Mr Bailey to bring with him and produce documents, namely:

[70] Shortly after 10.00 a.m. on 8 December 2003, the summons to Mr Bailey was called on. There was no appearance by him. Vice President Lawler's associate, Ms Janine Webster, then made contact with Mr Bailey by telephone and had three separate conversations with him. She gave evidence of those conversations and her evidence, given by reference to a contemporaneous file note is as follows:

[71] We note that the decision of Ashley J in Victorian Lawyers RPA Limited v Bailey had been included in the respondent's list of authorities.

[72] It is apparent from what Ms Webster said to Mr Bailey, that he was made aware of the seriousness of the allegations against him made by Ms Oram as well of the possible consequences if the Commission accepted her evidence.

[73] Following the conversations with Ms Webster, Mr Bailey faxed a letter to the presiding member. Although it was marked "Without Prejudice" we do not accept that we may not refer to it in setting out the chronology of events. He confirmed his intention to attend on 9 December, and indicated that he wished to be represented but had failed to secure any representation. He asked to be provided with a copy of the transcript of proceedings of 8 December, sought directions for the exchange of documents and any other matters that the Commission deemed fit. Finally, Mr Bailey acknowledged receipt of the summons to witness received by his office on 4 December 2003 and indicated that he declined to answer the summons "on the basis that I might incriminate myself in any future proceedings current and otherwise that may be filed against me by Ms Oram in a court of competent jurisdiction."

[74] After Ms Webster's conversation with Mr Bailey it came to the attention of the Bench that at the time of at least some of the calls made by her and referred to above, Mr Bailey was, in fact, in the Commission premises representing another applicant in conciliation proceedings. The Bench arranged for officers of the Registry to seek out Mr Bailey and indicate that his attendance was required forthwith before the Full Bench in compliance with the summons. Mr Nassios, the Deputy Industrial Registrar, and Mr McLeod gave evidence of identifying Mr Bailey in conference room 3A on level 34 of the Commission premises and having a conversation with him in which they indicated that his attendance was required forthwith before the Full Bench in compliance with the summons. By 2:15 pm on 8 December 2003, Mr Bailey had still not appeared in answer to the summons, the phone calls from the associate to Vice President Lawler or the communication by Mr Nassios. In the meantime, the Commission had heard evidence from Ms Oram, who had been cross-examined by Mr Bromley for the respondent. The respondent did not object to an adjournment of the matter and it was adjourned to Wednesday, 10 December 2003 at 10.00 a.m. to provide a further opportunity to obtain the attendance of Mr Bailey and the production of the documents covered by the summons. Vice President Lawler's associate wrote a letter to Mr Bailey informing him of this fact and, repeating the terms of the message from the Full bench that she had earlier orally conveyed to him. In subsequent communications with Mr Bailey, he indicated to the associate to Vice President Lawler that he was unable to attend the Commission at 10.00 a.m. on Wednesday, 10 December 2003, but that he could attend at 9.00 a.m. on that day. The Full Bench relisted the matter for 9.00 a.m. on 10 December 2003 on the basis that nothing substantively affecting the interests of the respondents would be dealt with until counsel for the respondent was available, anticipated to be later on that day.

[75] As well as the letter to Mr Bailey referred to above, copies of relevant documents including the transcript of proceedings on 8 December 2003 and the affidavit of Ms Oram were handed to Mr Bailey at about 2:30 pm on 9 December 2003.

[76] When the Full Bench resumed hearing the matter shortly after 9.00 a.m. on Wednesday, 10 December 2003, Mr Bailey was in attendance.

[77] The transcript records what occurred at that point:

[78] After hearing argument from the parties and from Mr Bailey, the Bench determined that Mr Bailey ought be granted leave to intervene pursuant to section 43(1) of the Act. Mr Bailey then made an application for an adjournment,16 which application was refused. Mr Devries on behalf of the appellant then called on the summons to Mr Bailey. Mr Bailey then produced documents in answer to the summons. The documents produced by Mr Bailey were marked as MFI 1 and subsequently admitted into evidence as Exhibit 16. Mr Bailey was asked by the presiding Member whether he said this production was a complete answer to the summons. Mr Bailey replied, "I do, sir, yes."17. In the meantime, a second summons dated 8 December 2003 had been issued by the Commission and served on Mr Bailey. He was asked by the presiding Member whether he produced any further documents in response to that summons. Mr Bailey replied, "No, I don't, your Honour."18 Mr Bailey was then sworn for the purposes of examination in relation to the production of documents pursuant to the summons. He reaffirmed on oath that the documents produced were a complete answer to the summons, Exhibit 1, and that "there is no additional materials"19. Mr Bailey had previously told the associate to Vice President Lawler that the documents covered by the summons had been posted. He said in cross-examination that they had been placed in an envelope and given to office staff for posting on the previous Friday, 5 December 2003 and he later discovered that they had not been posted.20

[79] Mr Bailey, pursuant to leave granted, was cross-examined by Mr Devries on the summons. He confirmed that what he had produced to the Commission (MFI 1, Exhibit 16) was his complete file21 and this was reiterated in the following exchange22:

[80] Mr Devries then asked whether the file contained "all [Mr Bailey's] file notes". Mr Bailey answered: "No, it doesn't". The following exchange then occurred23:

[81] Mr Bailey's claim to have received this advice from Mr Robinson is implausible. Putting aside the basic fact that any privilege is the privilege of the client and could therefore not be asserted against Ms Oram, a solicitor of even marginal competence would certainly know that there are only two acceptable ways for resisting the production of allegedly privileged documents: the first is to seek to have the summons or subpoena set aside in advance of the return date or, certainly no later than, the occasion of the return of the summons, or, secondly, by producing the allegedly privileged documents as a separate bundle marked so as to indicate that a claim of privilege is made, which claim will then be determined before any access to the documents is allowed to the party as whose request the summons was issued.

[82] Mr Bailey claimed to have received the advice from Mr Robinson by phone on the evening of 9 December 2003. And yet on the preceding Friday when Mr Bailey had allegedly bundled the documents in answer to the summons for postage to the Registry, the file notes in question had not been included in the bundle. The following exchange occurred24

[83] When pressed further as to why he chose not to include the file notes in the envelope of documents in response to the summons he was going to send to the Commission, Mr Bailey gave the following evidence:25

[84] Mr Bailey was then informed by the Full Bench that the summons did require the production of his file notes and Mr Bailey, when asked when the Full Bench could have those file notes, replied "later this week"26. Upon learning that Mr Bailey lived in Abbotsford, perhaps a 5-minute tram ride from the Commission premises, the Commission adjourned to provide Mr Bailey with an opportunity to go to his home, retrieve the documents and return with them to the Commission. The presiding Member said this27:

[85] Mr Devries on behalf of the appellant then asked whether the file produced by Mr Bailey included "all of the banking documents relating to the banking of monies received by you from Ms Oram, in relation to this matter". Mr Bailey conceded that it did not. When asked where those documents were, he responded "I don't have documents for that. They would be bank statements, I suppose"28. The following exchange then occurred29:

[86] Mr Devries then cross-examined Mr Bailey further on categories of documents that ought to have been produced under the summons, but were not, in fact, produced. Mr Bailey claimed that he did not keep all his bank statements, although on a reading of the summons, we can understand why Mr Bailey may have come to the view that bank statements were not caught by the summons.

[87] Given that there did not appear to be a live issue as to whether Ms Oram had paid Mr Bailey promptly, he was not required to produce his bank statements.30

[88] The production of original documents by Mr Bailey on the morning of 10 December 2003 was incompatible with the documents having been posted as claimed in the conversation with the associate. Mr Bailey did not dispute the accuracy of the conversation as recorded by the associate and, instead, explained the matter on the basis that "they were put in an envelope and ready to be sent, but I was understanding - see, the way my office set-up is, I have a secretarial service that take care of my administration, that mail hadn't gone and that is how you come to get the original documents, today. I was on the understanding that they would have been sent."

[89] We find that Mr Bailey had made a decision by the afternoon of Friday, 5 December 2003, that he would not deliver documents to the Commission in response to the summons.31. Mr Bailey well knew that the summons required production of documents at 10.00 a.m. on the morning of Monday, 8 December 2003. He could not reasonably have supposed that posting the documents on Friday afternoon would ensure that they were in the hands of the Commission at 10.00 a.m. on Monday, 8 December 2003, and thus available for the purposes of the Appeal listed on that day. In fact, it emerged that Mr Bailey had made a deliberate decision to deal with the documents in such a way that they would not be before the Commission for the hearing of the Appeal. This is made clear by the following passage of transcript.

As is probably clear by now we consider that Mr Bailey's explanation in relation to the issue of attempting to post the documents is yet another example of his saying whatever he thinks will advance his cause without any regard for the truth.

[90] Part way during the proceedings on 10 December 2003, Mr Baker of counsel sought and was granted leave to appear for Mr Bailey.

[91] Mr Baker applied for an adjournment. We concluded that the interests of justice required us to refuse that adjournment application. In the circumstances, we were satisfied that Mr Bailey had had an appropriate opportunity to secure properly instructed legal representation, but had failed to avail himself properly of that opportunity. More importantly, in circumstances where Mr Bailey was not prepared to give an unqualified undertaking to pay the costs of the appellant and respondent thrown away by reason of such adjournment, the costs prejudice accruing to the appellant and respondent as a result of an adjournment meant that, in accordance with the principles laid down by the High Court in The State of Queensland v J L Holdings Pty Ltd32, the interests of justice favoured a refusal of the adjournment application.

[92] Subsequently, it was necessary to further adjourn the matter on 10 December 2003 because Mr Bailey was unwell and could not proceed further.

[93] The matter was resumed on 19 December 2003. Mr Baker again appeared for Mr Bailey. Transcript of the earlier days had been provided to Mr Bailey. Mr Baker made an oral application for this Full Bench to disqualify itself on the ground of apprehended bias.33 The Bench dismissed that application instanter and gave an ex tempore outline of its reasons for so doing34, indicating full reasons would be provided in due course. We provide those reasons at the end of this decision.

[94] Mr Baker then cross-examined the appellant. During the course of that cross-examination, Mr Baker put to the appellant the terms of a telephone conversation said to have occurred between her and Mr Bailey on 17 March 2003, which, if accepted, would seriously undermine the version of events asserted by Ms Oram in her affidavit. Specifically, it was put to Ms Oram that Mr Bailey had warned Ms Oram that there would be further significant expense in taking the matter to a hearing and that Ms Oram had flagged the possibility of difficulties in meeting that expense, that statements were due to be filed that day in accordance with the directions of the Commission and that it was necessary to seek an extension of time. Mr Baker produced, for the first time, a photocopy of a handwritten file note of the conversation said to have been made at the time by Mr Bailey. Mr Bailey subsequently gave evidence consistent with what Mr Baker had put to Ms Oram in cross-examination.

[95] The file note of 17 March 2003 is a critical document. A photocopy of that file note is reproduced hereunder.

[96] The original of the file note was not in court. Mr Bailey indicated that the original was at home. This, of course, involved yet another failure to comply with the summons which is all the more remarkable because of its critical significance together with the fact that Mr Bailey had been sent from the Commission on 10 December for the express purpose of bringing all of his file notes to the Commission. He was questioned about the nature of the original document and indicated as follows:

[97] The Commission adjourned to enable Mr Bailey to attend his home and return with the file note and the pad from which it had been detached. Ms Oram had no recollection of a telephone conversation with Mr Bailey on or about 17 March 2003, but conceded that it was "possible" that she had had a conversation with Mr Bailey on 17 March in which these matters were discussed. She subsequently gave evidence that, having thought about the matter, she was now certain that there was no such conversation. The earlier concession of the possibility of such discussion needs to be seen in the context in which it was made. The following excerpts from the transcript of Ms Oram's cross-examination by Mr Baker are relevant:

[Although the following portion of transcript was marked "In-confidence" so as not to disclose to the respondent what appellant might have been prepared to accept by way of settlement, we consider it necessary to reproduce it in these reasons. Those portions that might have a tendency to disclose such material have been removed as indicated.]

[The matter then continued in open hearing. Ms Oram was re-examined.]

[98] There were issues related to the emergence of the 17 March 2003 file note which cause us considerable concern. First, the file note had not been produced in answer to the summons when Mr Bailey produced the documents that are now Exhibit 16. More importantly, after an inadequate compliance with the summons through non-production of Mr Bailey's file notes had been exposed and Mr Bailey had returned home for the express purpose of producing all of his file notes, the critical file note was still not produced. Secondly, the reference to "4 wks?" in the fourth dash point in the critical file note is heavily underscored such that if the note had been written in the ordinary fashion in which an A4 pad is used then, on Mr Bailey's evidence, an impression from that heavy underscoring ought be discernible on the top page of the pad from which it had been detached. No such scoring is discernible. Given the critical importance of whether or not there had been a conversation on 17 March 2003 as alleged by Mr Bailey and consistent with the power conferred by s.110(2)(b), at our request, the Registrar retained a document examination expert to examine the critical file note and the pad.

[99] The document examiner prepared a report, copies of which were sent to Mr Bailey and the representatives of the other parties. The covering letter to Mr Bailey, dated 20 February 2004, was in the following terms:

[100] The associate to Vice President Lawler contacted Mr Bailey's office and confirmed receipt of the letter. No response was forthcoming from Mr Bailey. Neither of the other parties sought to call further evidence or make further submissions.

[101] The other parties did not seek to cross-examine the document examiner, lead any further evidence or make any submissions on the document examiner's report. We admit the report of Mr Holland into evidence as Ex 19. The document examiner subjected the file note to an ESDA process, which reveals latent impressions left from writing from other documents which have been written on top of the subject document.

[102] Relevantly for present purposes, the results of the examination were as follows:

[103] We find that Mr Bailey fabricated the file note dated 17 March 2003 shortly before it was presented to the Commission by him as an allegedly authentic contemporaneous record. We make that finding on the balance of probabilities, but with the degree of satisfaction referred to in Briginshaw v Briginshaw35. On Mr Bailey's sworn evidence the critical file note of 17 March 2003 was still attached to the A4 pad the time it was written, as were other unrelated notes immediately above the critical file note. The exact alignment of the ESDA impressions with the pre-printed lines on the critical file note make it highly probable that one of the pages in the A4 pad above the critical file note was the file note dated "15 Dec 2003" that gave rise to the ESDA impressions, and thus highly probable that the critical file note, being a later page in the A4 pad, was written after 15 December 2003. The only explanations consistent with the critical file note being an authentic contemporaneous document notwithstanding the ESDA impressions are:

Each of these possibilities is, we think, highly improbable. Our degree of satisfaction in so finding is heightened by the failure of Mr Bailey to produce the critical file note on 10 March 2003, when he had been sent to his home for the express purpose of collecting and producing all file notes relating to this matter.

application for this bench to disqualify itself for apprehended bias

[104] On 19 December 2003, counsel for Mr Bailey made an oral application for this full bench to disqualify itself on the ground of apprehended bias.36 The bench dismissed that application instanter and gave an ex tempore outline of its reasons for so doing37, indicating full reasons would be provided in due course. We now give those reasons.

[105] In summary, the matters relied by counsel for Mr Bailey as giving rise to a reasonable apprehension of bias were that, during the hearing of the appeal, members of the bench:

[106] Counsel for Mr Bailey subsequently also placed reliance on the level of intervention from the bench while Mr Bailey was giving evidence and the fact that a "flyer" and pages from a website associated with Mr Bailey had been introduced by the Bench rather than by one of the parties thereby indicating a determination on the part of this full bench to find something to the detriment of Mr Bailey38

[107] The test to be applied in Australia in determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.39 In Laws v Australian Broadcasting Tribunal40 Gaudron and McHugh JJ noted:41

[108] The relevant ground for disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially and without prejudice, rather than that he or she will decide the case adversely to one party.42 Mere predisposition or inclination for or against a particular argument or conclusion is not sufficient. In The Minister for Immigration and Multicultural Affairs v Jia43 Gleeson CJ and Gummow J, with whom Hayne J agreed, said44:

[109] Moreover, judicial officers have a duty not to accede too readily to a disqualification application In Re J.R.L ex parte C.J.L45, Mason J, in an oft-quoted passage, stated:

[110] Far from being inappropriate, the expression of a provisional view on a particular issue or warning parties of the consequences of a provisional view will typically be entirely consistent with the requirements of procedural fairness. In Johnson v Johnson46 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ noted:47

[111] In Kaycliff Pty Limited v Australia Broadcasting Tribunal,48 the Full Court of the Federal Court observed: 49

[112] In Richmond River Broadcasters Pty Limited v The Australian Broadcasting Tribunal50, Wilcox J referred to this passage and continued:

[113] We do not accept that a fair-minded observer would have concluded from the statements upon which Mr Baker relies that this bench had prejudged the matter as against Mr Bailey in the way in which the authorities explain that notion. Specifically, we do not accept that there is any foundation for a conclusion that the references to "fraud" or "fraudulent" in the passages of transcript relied upon by Mr Baker give rise to the relevant apprehension. On the contrary, what is recorded in those places is expressed in conditional language. Paragraph 87 of the transcript simply identifies as an issue "the extent to which Mr Bailey's behaviour was or was not fraudulent". Paragraph 93 of the transcript is in the following terms:

Paragraph 2160 refers to material adverse to Mr Bailey relied upon by counsel for the appellant and notes, correctly, that this material gives rise to a "suspicion" of fraud. Such statements do not give rise to a reasonable apprehension of bias.

[114] We have already dealt with the proper role of the Commission when faced with apparent misconduct by a representative. We do not accept that foreshadowing possible consequences that may flow if certain facts are established can properly be characterised as a "threat" or that this could conceivably give rise to a reasonable apprehension of bias in the relevant sense.

[115] We do not accept that the hypothetical fair minded observer would have regarded the requirement to provide an undertaking to pay the costs thrown away as a condition of a grant of an adjournment as indicating partiality or prejudgment in the relevant sense. The principle governing the grant of an adjournment is whether or not the adjournment is in the interests of justice. The costs prejudice suffered by other parties is certainly a relevant factor in determining whether it was in the interests of justice to grant an adjournment. In circumstances were there must be some doubt about the power of the Commission to order that Mr Bailey pay the costs of the adjournment, it was entirely reasonable for the Bench to address that prejudice by requiring Mr Bailey to undertake to pay the costs thrown away as a result of the adjournment as a condition of granting the adjournment. Such an approach does not give rise to a reasonable apprehension of bias.

[116] The indication given by this Bench on 10 December 2003 that it would require the attendance of a doctor, and not merely the production of a medical certificate, in the event that Mr Bailey sought a further adjournment on the next occasion must be considered in its proper context. The adjournment of the matter from 8 December 2003 to 10 December 2003 had been necessitated by Mr Bailey's failure to attend in accordance with a properly issued summons. On 10 December 2003, after the bench had indicated that it would sit late in order to complete the evidence in the interests of limiting the parties' costs, Mr Bailey indicated that he was ill and could not continue. In opposing an adjournment of the matter, counsel for the appellant made a submission to the effect that Mr Bailey had a track record for feigning illness when, as it were, the going got tough. Counsel claimed that this behaviour had been recorded in a number of the Commission's decisions. Given the costs consequences for the other parties of yet a further adjournment on the next occasion, we did not regard it as inappropriate to indicate that we would require something more than a bland medical certificate if yet another adjournment was to be sought on medical grounds on the next occasion. We do not accept that the course we took could properly be seen as giving rise to an apprehension of bias, rather it demonstrated a concern to balance the competing interests of the parties.

[117] Pursuant to s.110(2)(b) of the Act, In the hearing and determination of an industrial dispute or in any other proceedings before the Commission

[118] That is a statutory warrant which permits the Commission to introduce material of its own initiative in an appropriate case. We have already recorded our view that in a case such as the present it is entirely appropriate, and within the power conferred by s.110(2) of the Act, for the Commission to introduce material at its own initiative and to take a far more interventionist approach to the oral evidence than would ordinarily be appropriate. This cannot, of itself, give rise to a reasonable apprehension of bias. Mr Bailey had been put on notice through what Ms Webster had said to him during the third phone call on 8 December that other material on the public record was material which may be relevant and, specifically, reference was made to the decision of Ashley J in The Victorian Lawyers RPA Limited v Bailey [2000] VSC 162. The "flyer" in question is one that Mr Bailey had distributed to members of the public, including within the Commission's premises. The website material was drawn from the website printed on letterhead produced by Mr Bailey as part of his answer to the summons. Both of those documents contain statements that appear to be incompatible with the injunction issued by Ashley J. Given the context, we considered the introduction of that material as appropriate and just. In context, the introduction of that material at the initiative of the bench would not have been seen by a hypothetical observer as demonstrating that the bench may be biased in the relevant sense.

[119] In summary, none of the matters relied upon by Mr Baker demonstrated apprehended bias.

Summary of Findings in Relation to Mr Bailey

[120] We have already found that Mr Bailey deliberate misled Senior Deputy President Williams on 3 April 2003 and, in particular, that he told deliberate lies to Senior Deputy President Williams.51 We shall refer this matter to the appropriate authority.

[121] We are satisfied that Mr Bailey, in flagrant contempt of the Commission, deliberately failed to answer the Summons to Witness that had been served upon him. We intend to refer this matter to the appropriate authority.

[122] We also find, with the satisfaction referred to in Briginshaw, that Mr Bailey lied on his oath to this Full Bench when he was trying to explain why the documents that had been subpoenaed had not been produced on 8 December 2003. We shall also refer this matter to the appropriate authority.

[123] Having regard to Mr Bailey's web page and the "flyer" he put about advertising his services, we think it clearly arguable that Mr Bailey has breached the injunction of the Supreme Court of Victoria that "Gary Stephen Bailey be restrained from engaging in legal practice in Victoria and be restrained from representing or advertising that he is qualified to engage in legal practice, unless and until he is admitted to legal practice and holds a practising certificate." We told Mr Bailey, during the course of the hearing,52 that, having regard to Ms Oram's evidence, we would not find that Mr Bailey had held himself out to her as a legal practitioner, albeit she had formed that view. However, a possible breach of the Supreme Court's injunction is another matter and we will refer this matter to the appropriate authority.

[124] We have found that Mr Bailey fabricated the file note of 17 March 2003 and lied on his oath before this Full Bench in relation to the conversation with Ms Oram that he alleged took place on that date and as to the making of the file note. We will refer this matter to the appropriate authority.

Consequences for Mr Bailey

[125] The conduct of Mr Bailey considered in these reasons for decision, including, in particular:

is, we think, such as to render Mr Bailey not a fit and proper person to appear as an advocate before the Commission. Members of the Commission are entitled to rely upon these findings as a proper basis for refusing Mr Bailey leave to appear in future matters. We recognise that the discretion conferred by section 42 cannot be fettered by a `direction' from this full bench and that members of the Commission in future matters retain a discretion pursuant to section 42 to grant leave to Mr Bailey notwithstanding our findings and observations.

BY THE COMMISSION:

VICE PRESIDENT LAWLER

Appearances:

G Devries for Sandra Oram

M Bromley for Derby Gem Pty Ltd

D Baker for Gary Bailey

Hearing details:

2003

Melbourne:

8 December

10 December

19 December

Printed by authority of the Commonwealth Government Printer

<Price code G>

1 Decision given in transcript

2 Print PR932855

3 Williams SDP, 11 June 2003, PR932855

4 Transcript PN11

5 Transcript PN23

6 Print PR923358

7 PR942856

8 Print PR932855 at [18]

9 (1936) 55 CLR 499

10 Print M9753, Ross VP, Maher DP, Macdonald C

11 at p 5

12 See, for example, New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-4 per Barwick CJ, Kitto, Taylor, Menzies and Owen JJ.

13 It is conceivable that such findings might also be made in the context of determining application for leave to appear pursuant to s.42(3) of the Act.

14 (1938) 60 CLR 336

15 Exhibit 1

16 PN 697

17 PN 717

18 PN 720

19 PN 723

20 Transcript PN 736ff

21 PN 778

22 PN 779-782

23 PN 784-788

24 PN 803-807

25 PN 808-809

26 PN 813

27 PN 816

28 PN 819

29 PN 820-827

30 PN 890

31 PN 903

32 (1997) 189 CLR 146

33 Transcript PN2377ff esp at PN2390ff

34 Transcript PN2508 to PN2538; see also PN2493 to PN2507

35 (1938) 60 CLR 336

36 Transcript PN2377ff esp at PN2390ff

37 Transcript PN2508 to PN2538; see also PN2493 to PN2507

38 Transcript PN2486 to PN2490

39 Johnson v Johnson (2000) 201 CLR 488 at para [11]; Livesey v. New South Wales Bar Association (1983) 151 CLR 288 at pp 293-294; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41.

40 (1990) 170 CLR 70

41 at 100

42 Re J.R.L ex parte C.J.L (1986) 161 CLR 342 at 352

43 (2001) 178 ALR 421

44 at p 438

45 (1986) 161 CLR 342

46 (2000) 201 CLR 488

47 at para [13]

48 (1989) 90 ALR 310

49 at p 302

50 (1992) 34 FCR 385 at 395

51 See para [22]ff above.

52 PN