APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 15 OCTOBER 2020

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00262

DELIVERED : MONDAY, 20 June 2022

FILE NO. : PSAB 31 OF 2020

Appellant

AND

Speaker of the Legislative Assembly

Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Application for examination of witness before hearing of appeal – Interests of justice

Legislation : Industrial Relations Act 1979 (WA) s 27(1)(o), s 80L

Evidence Act 1906 (WA) s 120, s 121 

Result : Application granted

Order issued

Representation:

Counsel:

Appellant : Forbes Kirby Lawyers

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

De Garis Kendenup (WA) Development Company Limited v Courtis [1925] WALawRP 31; (1925) 28 WALR 54

Droungas v Cunningham (1994) 10 SR (WA) 212

Watson v J-Five Enterprises Pty Ltd [2001] WADC 241

Reasons for Decision

1         These are the unanimous reasons of the Public Service Appeal Board (Board).

2         This appeal is listed for a four-day hearing commencing on 4 July 2022. The appeal was previously listed for a hearing in June 2021. Those dates were vacated, and alternative dates in November 2021 were set down. Those dates were then also vacated, and the matter re‑listed to commence hearing on 4 May 2022. On that day, the appeal was again adjourned, by a joint application, agreed to with ‘great reluctance’ by the respondent.

3         The respondent now seeks an order for the examination of a witness, Ms Slobadanka Goricanec, prior to the commencement of the appeal hearing.

4         The general rule is that facts to be proven by the evidence of witnesses in a matter of this type should be proved by the oral evidence of the witness in open court in the course of the hearing. However, the Board is empowered under s 80L and s 27(1)(o) of the Industrial Relations Act 1979 (WA) to make an order for the examination of a witness. The purpose of the Board having the discretion to make such an order is to enable the expeditious and just hearing and determination of the appeal.

5         The grounds for the application are that the witness will be overseas, in Serbia, on the hearing dates. The application is supported by affidavits of the witness and Ms Katherine Ellson, the solicitor with the conduct of the matter on behalf of the respondent. By her affidavit, the witness confirms that she was available and prepared to give evidence at the hearing when it was originally listed for 4 May 2022.

6         On 6 May 2022, the respondent’s solicitors advised the witness that the hearing would commence on 4 July 2022 and that the witness would be required to attend the hearing. Based on the witness’s response to that email of the same date, it appears that she had hoped or planned to be on holiday in Serbia on the re-listed hearing dates. It was her plan to travel to Serbia for the July school holidays. She states in her affidavit that she has family in Serbia, including her mother‑in‑law, who is 85 years of age. She has not been able to travel to Serbia to visit family for several years because of Covid‑19.

7         After being advised of the hearing dates, on 17 May 2022, the witness booked annual leave from her employment and confirmed to Ms Ellson that her holiday was booked for 24 June 2022 to 5 August 2022.

8         It is not entirely clear from the evidence when the witness booked her tickets to travel overseas or precisely when her leave was approved, noting that such approval is likely to have been required from the Honourable Roger Cook MLA. It is also noted that on 5 May 2022, the parties jointly requested that the matter be set down for hearing in the week of 4 July 2022.

9         There is an absence of any proper explanation as to why the witness’s evidence cannot be given by video link from Serbia during the course of the hearing, except that the witness is unwilling to do so because it would not feel like a holiday if she was required to give evidence in this matter.

10      The appellant opposes the order sought because:

(a) The witness and the respondent were both aware of the hearing dates, before the witness’s leave was approved and before flights were booked. The appellant points out, in the context of the witness seeking to take leave from her employment, that the respondent is the witness’s employer.

(b) The evidence in support of the application does not provide a fulsome explanation of the events surrounding the witness’s travel and leave plans, so that it is open to conclude that the application is made simply to accommodate the witness’s desire not to be inconvenienced by having to change her travel dates.

(c) The order, if granted, would inconvenience the Board and the parties’ respective legal teams. Specifically, the hearing will mean that the parties will be deprived of some of the time that could be devoted to other hearing preparations. The appellant also points out that if further cross-examination questions arise from the evidence that other witnesses may give, the witness will not be available to answer them, which in turn may result in the matter having to be part‑heard.

11      The appellant submits that the evidence points to the application being about prioritising the witness’s interests, specifically her desire to travel at a particular time, over the conduct of the hearing. She also submits that the witness has made travel arrangements without having secured permission to be absent from duty.

12      No doubt, the respondent could have taken some additional steps to attempt to secure the witness’s attendance at the hearing. It could have denied her application for leave. To have done so and deprived the witness (and possibly her family) of the opportunity to travel overseas and take leave would have indeed been draconian. It would not have guaranteed the witness would not proceed to travel overseas, Nor could it have guaranteed she would attend the hearing to give evidence. Indeed, it would create the risk that she would withdraw her cooperation.

13      It is not to the point in this application to investigate whether more could have been done by the respondent to secure the attendance of the witness or to investigate what choices the witness has made about her involvement in the proceedings. The witness has no direct interest in the proceedings and is not herself a party. Even if more could have been done, the Board’s exercise of its discretion is not for the purpose of punishing parties for mistakes or their conduct of the proceedings, much less, punishing witnesses.

14      Rather, the sole question is whether the interests of justice will be served by granting the order sought. As MacMillan CJ observed in De Garis Kendenup (WA) Development Company Limited v Courtis [1925] WALawRP 31; (1925) 28 WALR 54, the discretion given to examine witnesses is conventionally and uncontroversially used in cases where witnesses are going ‘abroad’, and extends to all cases where it appears necessary for the purposes of justice. His Honour stated:

It seems to me that whenever an application of this sort is being considered by a judge, whether the proposed witness is in this State or is in some other part of Australia, all the judge has to do is to ask himself whether it is necessary for the purposes of justice that the order asked for should issue. If he comes to the conclusion in the exercise of his discretion that it is not necessary, I think he has power to make no order...

15      It is, therefore, ordinarily enough for a party to show to the satisfaction of the court or tribunal that a witness is out of the jurisdiction, that their evidence is material, and that the party cannot procure it in order for the order to be made: Joseph and Curwood, Civil Procedure Western Australia (Civil Procedure) [38.1.1]. The learned authors of Civil Procedure suggest at [38.0.3] that before steps are taken to obtain evidence by deposition, parties should exhaust the possibility of obtaining a direction under the provisions of s 121 of the Evidence Act 1906 (WA) (Evidence Act) for the evidence to be received by video or audio link.

16      We note that s 121 of the Evidence Act applies to the Board as a tribunal established by the laws of the State: s 120 Evidence Act.

17      However, the taking of evidence by video or audio link as an alternative needs to also be weighed against considerations such as the cost of establishing a satisfactory audio-video link at the time and in the place concerned, and whether the nature of the evidence is such that the evidence, including cross‑examination, ought to be given in person.

18      At the end of the day, there is no controversy that the witness will be overseas on all days of the hearing. Neither the parties nor the Board can compel the witness not to travel overseas. Nor can the Board compel the witness to give evidence whilst she is overseas.

19      The appropriate and indeed the conventional course in these circumstances is for the respondent to seek to make arrangements for the witness’s evidence to be taken by way of a witness examination prior to the hearing and on a provisional basis (de bene esse): see Droungas v Cunningham (1994) 10 SR (WA) 212 at [214] and Watson v J-Five Enterprises Pty Ltd [2001] WADC 241 per Nisbet DCJ at [5].

20      The Board is satisfied that, in this case, the witness’s evidence is material to the appeal. The appellant does not suggest otherwise. It is also satisfied that the witness has made arrangements to be overseas during the hearing dates and will not be able to attend the hearing to give evidence for that reason. Accordingly, it is a short step to then conclude that the interests of justice will be served by granting the order that the witness be examined prior to the hearing.

21      In that regard, we are not persuaded that the inconvenience and prejudice the appellant has identified tips the balance against granting the order. The parties have agreed that the respondent will present its case first in the hearing of the appeal. Granting the application will not affect the order of case presentation. The interests of justice will best be served by granting the order that the witness be examined prior to the hearing.

22      The Board will make copies of the transcript of the examination, as well as the video and audio recordings, available to the parties. It will be for the parties to determine whether to seek to tender the examination and in what form the examination should be tendered. Any objections to the admissibility of the evidence, or any part of it, will be dealt with at the hearing of the appeal.

23      Accordingly, the orders will be:

(a) An examination of Ms Slobadanka Goricanec be conducted on a date and at a time between 20 June 2022 and 24 June 2022, before a Commissioner of the Western Australian Industrial Relations Commission; and

(b) The examination of Ms Slobadanka Goricanec be video and audio recorded.