2007 WAIRC 01048

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PRESIDENT

CITATION : 2007 WAIRC 01048

CORAM
: THE HONOURABLE M T RITTER, ACTING PRESIDENT

HEARD
:
WEDNESDAY, 29 AUGUST 2007

DELIVERED : FRIDAY, 31 AUGUST 2007

FILE NO. : PRES 2 OF 2007

BETWEEN
:
MRTA OF WA INC
Applicant

AND

PANAGOUTA TSAKISIRIS
Respondent

CatchWords:
Industrial Law (WA) - Application to stay decision of the Commission relating to adjournment of jurisdictional hearing - Impact of similar matter on appeal to Industrial Appeal Court - Stay application principles - Consequences of granting a stay - Urgency of stay application - Section 78B notices under Judiciary Act 1903 (Cth) - Application granted

Legislation:

Industrial Relations Act 1979 (WA) (as amended), s7, s22B, s29(1)(b)(i), s32, s49(2a), s49(11), (12)

Industrial Relations Commission Regulations 2005, r 61(1)

Result:
Application granted
REPRESENTATION:
Counsel:
APPLICANT : MR D HOWLETT (OF COUNSEL), BY LEAVE
RESPONDENT : NO APPEARANCE
Solicitors:
APPLICANT : BOWEN BUCHBINDER VILENSKY LAWYERS
RESPONDENT : -


Case(s) referred to in reasons:

Aboriginal Legal Service of WA Inc v Lawrence (2007) 87 WAIG 856
Anderson v Rogers Seller & Myhill Pty Ltd (2007) 87 WAIG 289
Black v Lipovac (1998) 217 ALR 386; [1998] 699 FCA
Burswood Resort (Management) v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch (2000) 81 WAIG 9
Bysterveld v Shire of Cue (2007) 87 WAIG 2462
City of Sydney Council v Satara [2007] NSWCA 148
Commonwealth Bank v Bouwman [2003] WASC 205
Culverhouse v John Septimus Roe Anglican Community School (1995) 75 WAIG 1960
Eastland Technology Australia Pty Ltd and Others v Whisson and Others (2003) 28 WAR 308
Federal Commissioner of Taxation v Myer Emporium Limited (No 1) (1986) 160 CLR 220
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
John Holland Group Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers (2005) 85 WAIG 3918
Merredin Customer Service Pty Ltd as Trustee for the Hatch Family Trust trading as Donovan Ford/Merredin Nissan and Donovan Tyres v Green (2007) 87 WAIG 133
Myers v Myers [1969] WAR 19
Okmasich v Evans (1980) 25 SASR 481
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Rendezvous Observation City Hotel v Mumme (2006) 86 WAIG 415
Robe River Iron Associates v AMWSU (1988) 68 WAIG 1709
Springdale Comfort Pty Ltd t/a Dalfield Homes v BTA (1986) 67 WAIG 325
St Cecilia's College School Board v Grigson (2006) 86 WAIG 1260
The Commissioner of Police v Civil Service Association of Westralia [2002] WASCA 19
The Registrar v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 126
The West Australian Locomotive Engine Driver’s Firemen’s and Cleaner’s Union of Workers v Schmid and Others (1995) 76 WAIG 6


Case(s) also cited:

Meggitt Overseas Limited and Others v Grdovic (1998) 43 NSWLR 428
R v Whiteway; Ex Parte Stephenson [1961] VR 168
Re: Mona Olive Kelly and Others together comprising a Repatriation Board (1981) 52 FLR 302
Seale and Anor and Repatriation Commission [2004] AATA 700
Sydney City Council v Ke-Su Investments Pty Ltd [1985] 1 NSWLR 246
Thornton v Repatriation Commission (1981) 52 FLR 285
Yates Settlement Trusts [1954] All ER 619

Reasons for Decision

RITTER AP:

The Application
1 This application was filed on 16 August 2007 pursuant to s49(11) of the Industrial Relations Act 1979 (WA) (the Act). It seeks the stay of the operation of a decision of the Commission made on 26 July 2007 until the determination of an appeal against that decision. The decision was to dismiss what was described as the applicant’s application to adjourn a jurisdictional hearing in U543 of 2006. The appeal was filed on 15 August 2007.
2 To understand and properly analyse the stay application it is necessary to consider the history of the application at first instance.

The Application at First Instance
3 On 24 November 2006 the respondent filed a notice of application under s29(1)(b)(i) of the Act. The application sought a remedy in respect of the allegedly unfair termination of the respondent’s employment by the applicant. Particulars of the claim were filed pursuant to regulation 61(1) of the Industrial Relations Commission Regulations 2005 (the Regulations). This document set out the following. The nature of the applicant’s business was an ethnic community radio station. The respondent had been employed as a youth and training co-ordinator in Maylands until the termination of employment on 30 October 2006. Her primary responsibility was to oversee the station’s youth annexe in Maylands, co-ordinate multicultural youth programs and conduct broadcaster training. The respondent was a full-time employee who worked 40 hours per week. There were a series of paragraphs describing why the respondent thought her dismissal was unfair. The respondent was not seeking reinstatement, but instead compensation “for being unfairly dismissed and mistreated in the workplace”.
4 No declaration of service of the application was filed with the Commission until 12 December 2006.
5 On 18 December 2006 the Commission wrote to the parties saying that a conference pursuant to s32 of the Act would take place on 19 January 2007.

The Notice of Answer
6 On 21 December 2006 the applicant through their solicitors filed a notice of answer and counter proposal. The notice asserted the Commission did not have jurisdiction because the applicant was a “constitutional corporation” and the respondent’s “employment was governed by the Workplace Relations Act 1996 (“WRA”) (see the definition of “employer” in sections 4 and 6 of the WRA)”. The notice contained no particulars as to why it was asserted the applicant was a “constitutional corporation”. The notice also asserted the termination of the respondent’s employment was not harsh, oppressive or unfair.

The Correspondence
7 With the notice of answer the applicant’s solicitors filed a letter to the Commission dated 21 December 2006. The letter referred to the notice and said that as the jurisdiction of the Commission had been challenged “no further action can be taken in relation to this application until the question of jurisdiction is determined”. In support of this proposition the applicant’s solicitors cited Springdale Comfort Pty Ltd t/a Dalfield Homes v BTA (1986) 67 WAIG 325, a decision of the Industrial Appeal Court (IAC). The letter also asserted, without particulars, that the respondent needed to comply with the “Judiciary Act 1903” before the matter could proceed any further.
8 On 11 January 2007 the applicant’s solicitors wrote another letter to the Commission. The letter advised that Mr Buchbinder, the solicitor representing the applicant, was unable to appear at the Commission on 19 January 2007. The letter also expressed the applicant’s concern about the Commission purporting to exercise powers in the face of the challenge to jurisdiction.
9 The letter referred to Mr Buchbinder’s professional obligations to “raise these matters”. Springdale Comfort was again cited as well as other authorities which were said to support the submission that the application could not remain listed for a conference purportedly pursuant to s32 of the Act. It was submitted the Commission could exercise no powers except those associated with establishing whether or not there was jurisdiction.
10 After additional correspondence between the Commission and the parties, the Commission wrote a letter on 27 March 2007 to advise that the jurisdictional issue would be heard on 11 April 2007 in accordance with a notice of hearing that was attached.
11 The respondent then sent a facsimile requesting a change of the date and time of the hearing because of her commitments at her new place of employment. The Commission complied with this request and after some discussions re-listed the hearing for 16 May 2007. This information was conveyed by letter dated 30 April 2007, with an enclosed notice of hearing.
12 On 11 May 2007 the applicant’s solicitor informally sought and was granted an adjournment of the hearing of the jurisdictional issue because the Full Bench decision of Aboriginal Legal Service of WA Inc v Lawrence (2007) 87 WAIG 856 had been delivered that day. Mr Buchbinder sought an adjournment of three weeks to consider the decision. By facsimile dated 11 May 2007 the applicant’s solicitors also said that given the significance of Aboriginal Legal Service and the possibility of an appeal to the IAC “it may be prudent not to re-list this matter before the expiration of the appeal period”.
13 On 8 June 2007 the applicant’s solicitors wrote to the Commission to advise that an appeal against the decision of the Full Bench in Aboriginal Legal Service had been filed in the IAC on 6 June 2007. The letter said that as the outcome of the appeal was “likely to have an important impact on this matter, we would be grateful if the relisting of this matter for Hearing not take place until after the outcome of the Appeal …”.
14 The Commission then inquired whether the applicant would be prepared to participate in a without prejudice conciliation conference. By letter dated 12 June 2007 the applicant’s solicitors advised that their client remained of the view that the issue of jurisdiction should be first determined before consideration could be given to other matters.
15 After further discussion and correspondence a notice of hearing was issued on 4 July 2007. The notice described the “matter involved” as an “Application for adjournment”. The notice said the Commission would sit on 11 July 2007 at 2.15pm “to hear the abovementioned matter”. The notice of hearing was accompanied by a letter from the Commission of the same date. This letter referred to the letter from Mr Buchbinder, on behalf of the applicant, seeking “a further adjournment in light of the listing of an appeal in ALS v. M J Lawrence in the Industrial Appeal Court”.
16 The letter then said:-
“Given this is a preliminary jurisdictional issue a further adjournment for some considerable time without any evidence being called or established before the substantive case raises some issues.
The Commission is not prepared to agree to any adjournment until it has heard from both parties on the request. The Commission has accordingly listed this matter on Wednesday, 11 July 2007 for that purpose in accordance with the enclosed Notice of Hearing.”

The Hearing on 11 July 2007
17 The hearing on 11 July 2007 proceeded as scheduled.
18 At the hearing the applicant was represented by Mr Howlett and the respondent appeared in person.
19 The hearing commenced with the Commissioner addressing Mr Howlett and saying she understood that what was before her was an application to seek an adjournment. Mr Howlett clarified that it was a request for the matter to remain adjourned pending the outcome of the IAC decision in Aboriginal Legal Service. (T2). The Commissioner said Mr Howlett should proceed first with his submissions.
20 The relevant submissions of Mr Howlett were:-
(a) In the present application there was a challenge to jurisdiction which was substantially similar to Aboriginal Legal Service. (T2).
(b) The Full Bench decision in Aboriginal Legal Service had been appealed to the IAC and the appeal was listed for hearing on 3 October 2007. (T3).
(c) As to the law about adjournments, Mr Howlett cited The Registrar v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 126 at paragraph [45]:-
“The power of the Full Bench to grant an adjournment of the hearing of an application before it is discretionary. It is to be exercised by having regard to considerations of fairness and justice to the parties (Myers v Myers [1969] WAR 19). In the present application there is also the public interest to be considered. This is consistent with the principal object of the Act, set out in s6(c). It is also consistent with the exercise of the jurisdiction of the Commission as set out in s26(1)(c) of the Act.” (T3)

(d) Mr Howlett then cited my reasons for decision in John Holland Group Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers (2005) 85 WAIG 3918. This was an application for a stay. The reasons referred to the general requirement for the Commission to prevent more uncertainty than was necessary in industrial matters. (T3).
(e) It was submitted the approach of the Full Court of the Federal Court in Black v Lipovac (1998) 217 ALR 386; [1998] 699 FCA should be followed. There at [225] the Full Court decided to adjourn the hearing of an aspect of an appeal until another Full Court decision. This was because the latter would resolve an area of uncertainty about interest on awards of damages. (T4).
(f) Mr Howlett referred to the letter from the Commission dated 4 July 2007. In response he submitted, “the evidence in relation to the merits of the case will not be heard in the preliminary hearing in any event, and therefore whether or not there is an adjournment will not assist the Commission’s concern as to the evidence on the merits”. It was submitted there was in fact no prejudice to either party by the delay sought. (T5).
(g) Mr Howlett said the applicant would lead evidence and make submissions about the jurisdictional issue and if there was no adjournment the applicant would have to make a “complex assessment” of whether the Full Bench in Aboriginal Legal Service was correct and “pre-empt the view of the Industrial Appeal Court”. The Commission being a no costs jurisdiction was also emphasised. (T5).
(h) It was also submitted the respondent could “capture all of the relevant evidence as to the merits right now”. (T6)
(i) Mr Howlett referred to notices under (presumably s78B) of the Judiciary Act 1903 (Cth) not having been issued. He cited paragraph [10] of the reasons in Aboriginal Legal Service about the requirement for notices to be sent. (T6).
(j) Mr Howlett handed to the Commissioner a copy of the grounds of appeal to the IAC in Aboriginal Legal Service. He submitted that although there were factual differences, the IAC would deal with the applicable legal principles. It was submitted this was “why we ought to wait”. (T7).
(k) Submissions were then made upon what was described as the “complex consequences if there is no adjournment”. (T8). Reference was made to the prospect of an appeal against the decision, a possible stay application and the like. It was also submitted that if the jurisdictional challenge was heard and determined by the Commission, there could be prejudice against the applicant which was irremediable. This was because they may not have led evidence or made submissions about something which could turn out to be relevant depending upon the reasons of the IAC in Aboriginal Legal Service. (T9).
(l) The Commissioner raised with Mr Howlett the issue of the role of the Commission to resolve industrial disputes and the lack of “remedy” for the respondent whilst the jurisdictional challenge was taken. Mr Howlett agreed that the potential remedy for the respondent was delayed. In response the Commissioner referred obliquely to the reasons of Scott J in The Commissioner of Police v Civil Service Association of Western Australia [2002] WASCA 19 (as to which see below). Mr Howlett submitted that whilst there would be delay and inconvenience there would not be prejudice or injustice. (T12).
21 The respondent made brief submissions to the Commission. She conveyed her concern about a further adjournment and the effects that a delay would have. The respondent submitted that if the Commission did not have jurisdiction this did not “leave me with much room to move”, although she had legal advice about other options. She said that this depended though on how much time the “matter” took at the Commission and if it was delayed she did “not know what position [sic] I’ll be or what further course of action I can take elsewhere”. (T13). The respondent also said the further the delay went the harder it would be for her if the application progressed to the stage where she needed to “bring in witnesses”. The respondent said she had not “approached anyone as I was advised I shouldn’t until this matter progresses so obviously it’ll be a lot harder for me to get statements and any other material that I shall require for my case. Also I’m just worried about the delay and how it’ll affect me to prepare for it and that I won’t know where I stand”. (T13)
22 In reply Mr Howlett said that the delay would affect both parties equally. (T14).
23 The Commissioner reserved her decision.

The Order
24 On 26 July 2007 the Commissioner delivered reasons for decision and made the order which is the subject of the appeal. Bearing in mind the present applicant is the respondent at first instance, the order was the Commission:-
“ORDERS that the respondent’s application to adjourn the listing of jurisdictional proceedings is dismissed.”

The Reasons for Decision
25 The Commissioner commenced her reasons with a recitation of the background. The Commissioner said the hearing had occurred because of the substantial time that had elapsed since the termination of employment, the requirements of the Act to deal with matters expeditiously and because the jurisdictional hearing had already been adjourned twice.
26 The Commissioner said at paragraph [3] that an “application to adjourn the listing of jurisdictional proceedings is similar to those principles applied to an application for adjournment in that it is within the discretion of the Commission. Where the refusal of an adjournment would result in a serious injustice to one party an adjournment should be granted unless in turn this would mean serious injustice to the other party”. The Commissioner cited Myers v Myers [1969] WAR 19.
27 The Commissioner then set out her understanding of the submissions of the applicant.
28 In paragraph [7] the Commissioner said:-
“The respondent submitted that the Commission ought to adjourn the listing of the jurisdictional proceedings given the Commission’s failure to undertake its obligations pursuant to s 78B of the Judiciary Act 1903 (Cth) (“Judiciary Act”) to notify the Commonwealth and State Attorneys-General of proceedings consistent with the provisions of the Judiciary Act. The respondent advised it had submitted two items of correspondence to the Commission on this issue, one on 21 December 2006 and the other on 11 January 2007.”

29 The Commissioner referred to the arguments of the applicant about the grounds of appeal in Aboriginal Legal Service and the consequences of the Commission hearing the jurisdictional question before the determination of that appeal. The Commission then set out cases which the applicant had cited in support of its submissions. These citations had been provided to the Commission after the hearing.
30 The Commissioner then set out the respondent’s opposition to the adjournment. This was described as being that “if the matter was to be delayed further it would be more difficult to approach witnesses to give evidence of the substantive matter”. ([11]).
31 The Commissioner said that a number of factors were taken into account in assessing whether the refusal of the application to adjourn the listing of the jurisdictional proceedings would create a serious injustice to the applicant.
32 The applicant’s argument about complexity and costs in the event the application to adjourn was refused was referred to. The Commissioner said that whether it was the current decision of the Full Bench or the IAC decision in Aboriginal Legal Service “the Commission considers on balance that all relevant decisions would require consideration”. The Commissioner also said it was relevant that two hearing dates for the jurisdictional hearing had been vacated.
33 The Commissioner said that she had “been unable to draw any comparison between the nature of work carried out by” the Aboriginal Legal Service and that of the applicant. The Commissioner said that she had “limited submissions and no evidence before me on which to make such a comparison”. The Commissioner also mentioned the applicant conceded the operations of the Aboriginal Legal Service and its own operations were different.
34 The Commissioner referred to the submission of the applicant about the public interest but said it was not made out because of the dearth of submissions about the comparison of the applicant to the Aboriginal Legal Service.
35 In paragraph [17] the Commissioner said:-
“The Commission finds that matters which come before this Commission are best dealt with promptly and that evidence is best taken from witnesses as close as possible to the events to which the application relates. In having regard for this principle, I note the considered views of Scott J in The Commissioner of Police v Civil Service Association of Australia Incorporated [2002] WASCA 19:
“I agree with the reasons of the presiding Judge and I would add this, which I think is already apparent from the debate we have had today: this is yet another illustration of a case where a preliminary jurisdictional issue has progressed all the way through to the industrial appeal process, from its initiation through to the Industrial Appeal Court, without any evidence being called or any substratum of fact having been established before the case arrived here.
I think in many respects that is regrettable, for no other reason than it means that Mr Brown has been left effectively without a remedy in the sense that he has not known what his final position will be during the period that it is taken for this issue to get to the Industrial Appeal Court. From here, it will need to go back for a further hearing.
That, in my view, is not what the Industrial Relations Act is all about, or the Public Sector Management Act for that matter, both of which are designed to bring to an end, speedily and effectively, these thoughts of disputes. I think it is regrettable that these proceedings have taken this course.””

36 The Commissioner at paragraph [18] said she found there would be injustice to the respondent if the jurisdictional proceedings were adjourned because she would be “unavailable [sic] to call evidence on the substantive matter for a lengthy period of time from the date of dismissal”. Reference was made to the nine months since the date of termination, which the Commissioner considered to be a lengthy period and “considerably more than many parties receive in matters before this Commission”. The Commissioner said this was a relevant consideration and that claims of unfair dismissal should be dealt with expeditiously. In support of this proposition the Commissioner cited Culverhouse v John Septimus Roe Anglican Community School (1995) 75 WAIG 1960.
37 The Commissioner said that some of the decisions the applicant had referred to involved stay applications. The Commissioner thought there was a significant difference between the adjournment and stay applications.
38 In paragraph [20] of her reasons the Commissioner said:-
“The Commission finds the respondent’s submissions regarding the provisions of s 78B of the Judiciary Act to notify the Commonwealth and State Attorneys-General of proceedings are not a relevant consideration in these proceedings. Such notification under the provisions of the statute is acknowledged. The particular provision of the Judiciary Act referred to, requires the respondent in this matter to undertake the notification process not the Commission.”

39 The Commissioner then concluded that to adjourn the listing of the jurisdictional proceedings would mean a serious injustice to the respondent. The Commissioner said she would proceed to list the jurisdictional hearing “shortly”. This has now occurred. The hearing is listed to commence on 5 September 2007.

The Notice of Appeal
40 I have earlier referred to the date on which the appeal was filed. The notice of appeal had an attached schedule of some length. The schedule had headings of “The Judiciary Act 1903 (Cth) (“Judiciary Act”)”, “The Exercise of Discretion” and “Public Interest”. It is apparent that the latter is directed to the requirement for, in effect, leave to appeal under s49(2a) of the Act. Under the first two headings are what were intended to be grounds of appeal. There were three such grounds under “The Judiciary Act” and four under the heading “The Exercise of Discretion”. With respect to the latter, the grounds were extremely prolix. Each of the grounds involved considerable repetition and overlap. The first two grounds contained 7 particulars and the fourth 19. The Full Bench has expressed the importance of counsel, solicitors and agents properly drafting grounds of appeal. (Anderson v Rogers Seller & Myhill Pty Ltd (2007) 87 WAIG 289 at [112]-[114]).
41 It may well be in the applicant’s interests to closely consider whether the grounds of appeal should be redrafted and an application made to amend the notice of appeal.

The Course of the Stay Proceedings
42 As required by the Regulations the application for the stay was endorsed with directions to programme it for hearing. The directions required the applicant to serve the respondent with the endorsed application. The directions also required the filing of a declaration of service. This has occurred. The applicant’s solicitor declared that the respondent had been served with the application by pre-paid registered post. The applicant has complied with the other directions including the filing of an outline of submissions. The respondent has not however taken any steps to comply with the directions. She has not filed any notice of answer or outline of submissions.
43 During the period between the filing and hearing of the application, my associate, as directed by me contacted the parties to ascertain their view upon whether the application for the stay could be dispensed with and the hearing of the appeal expedited. The applicant’s solicitors replied in writing opposing the suggested course of action. Although my associate spoke to the respondent on 24 August 2007, the expedition issue was not dealt with as the respondent said she could not attend at the stay hearing, was not represented and had sent a letter to the Commission. My associate then wrote to the parties to say that in light of the submissions received from the applicant the hearing of the appeal would not then be expedited and the application for the stay would be heard as listed.
44 On 24 August 2007 the respondent told my associate she had sent a letter to the Commission on 23 August 2007. The respondent was advised that the Commission had not as yet received the letter.
45 Later on the same day my associate attempted to speak to the respondent by telephone to request that a copy of the letter which the respondent said had been sent to the Commission be sent again by facsimile. Attempts to speak to the respondent at her place of work, home or via a mobile telephone number were all unsuccessful. Additional attempts by my associate to speak to the respondent by telephone in the morning and afternoon of 27 August 2007 were also unsuccessful.
46 Accordingly, upon my instructions my associate sent a letter by facsimile to the respondent’s place of employment and scanned a copy of the letter and attached it to an email. The email address was obtained from the first instance file and appeared to be a home address. The letter was sent on 27 August 2007. As stated in the letter it was sent by facsimile to the respondent’s current place of employment as on at least one occasion the respondent had sent correspondence to the Commission (at first instance) on the letterhead of her current employer and apparently from their facsimile number. The letter set out the course of the correspondence about the expedition of the hearing of the appeal and said the applicant’s solicitors had been advised that they should attend at the hearing of the stay in a position to advise of their available dates for the hearing of the appeal from 30 August to 21 September 2007. The letter concluded that if the respondent wanted to make any submissions about the stay application or the possible listing of the appeal, the respondent should attend at the time and date of the hearing as was there specified.
47 In response, the respondent sent a letter to my associate by facsimile on 28 August 2007. That letter enclosed a copy of the previous letter which the respondent said she sent to the Commission, which was dated 22 August 2007. This letter was to the associate to Commissioner Mayman. It said that the respondent had not received the order or reasons for decision of Commissioner Mayman and she was not aware the Commissioner had made a decision.
48 The letter to my associate conveyed this information as well and said that as a consequence she was at a disadvantage with respect to the stay application and as previously advised was unable to attend at the hearing. The letter said the respondent’s preferred method of communication was email. It was not apparent whether a copy of this letter had been sent, as it should have been, to the applicant’s solicitors. Accordingly on the morning of 29 August 2007, my associate sent an email to the respondent enquiring whether she had an objection to sending a copy of the letter to the applicant and also enquiring as to whether the respondent was aware of the listing of the jurisdictional hearing before Commissioner Mayman on 5 September 2007. With respect to the stay application the email advised the respondent that if she did not attend, orders could be made in her absence, although if “your request for the stay hearing not going ahead today is acceded to then can you please advise me of your availability for a stay hearing to be listed before 5 September 2007 as soon as possible”.
49 My associate received a reply to this email only a few minutes before the scheduled hearing of the stay application. The email advised that the respondent did not have any problem with a copy of her letter being given to the applicant. The email said the respondent was not aware that Commissioner Mayman had set a hearing date and that as she had previously expressed, she had not received any correspondence regarding the Commission’s decision or when the next hearing would be. The respondent reiterated that she would not be able to attend the hearing of the stay application. The respondent said that she was at a disadvantage because she had not “received the appropriate correspondence which I require, and the hearings have already been scheduled regardless of that and orders can be made in my absence, I feel that I must confer with my solicitor before I am involved in any further hearings”.
50 I also mention that in light of what was said by the respondent I caused enquiries to be made about any records showing whether the respondent was sent, received or otherwise had notification of the order and reasons for decision made by Commissioner Mayman or the hearing listed for 5 September 2007. As a result, I have been informed that there is no clear record of the respondent being notified of or sent the order made and reasons for decision published by Commissioner Mayman. There is on the file, however a letter to both of the parties which enclosed the notice of the hearing on 5 September 2007.

The Hearing of the Stay Application
51 Just prior to the commencement of the hearing, in light of the email received from the respondent, my associate provided Mr Howlett, the applicant’s counsel, with a copy of the letter from the respondent dated 28 August 2007. At the beginning of the hearing he was also provided with a copy of the letter from the respondent to Commissioner Mayman’s associate dated 22 August 2007. I also advised counsel of the contents of the exchange of emails between my associate and the respondent on 29 August 2007. I then sought submissions from the applicant’s counsel about what course should be taken given the circumstances.
52 Mr Howlett submitted the stay application should proceed. Reference was made to the service of the application upon the respondent, the applicant having complied with the directions endorsed on the stay application, the close proximity of the hearing listed before Commissioner Mayman on 5 September 2007 and the desire for the applicant to know as soon as possible whether it was required to continue to prepare for the jurisdictional hearing on 5 September 2007.
53 I then advised Mr Howlett that I thought the hearing of the stay application should continue but in such a way so as to preserve the opportunity for the respondent to make submissions about the application, if she chose to do so. Accordingly I told Mr Howlett that I would hear his submissions and then adjourn the hearing to the afternoon of 31 August 2007 when I intended to publish my reasons for decision and make any relevant orders. In the interim, after the hearing of the application, my associate would write to the respondent by email. I said that my associate would refer to what had happened at the hearing and enclose for the respondent copies of all of the relevant documents, being the order, the reasons for decision, the notice of hearing for 5 September 2007, the transcript of the hearing before Commissioner Mayman, the notice of appeal, the notice of application for the stay, the applicant’s outline of submissions and the applicant’s list of authorities. The correspondence from my associate to the respondent would advise of my intention to make a decision on the afternoon of 31 August 2007 and say that any submissions the respondent wished to make about the application should be received in sufficient time for me to be able to consider them prior to that.
54 Mr Howlett then made his submissions in support of the stay application. At the conclusion of the hearing I said that it would be adjourned to 3:00pm on 31 August 2007 for the purpose I have referred to. At the conclusion of the hearing, my associate wrote to the respondent in accordance with the above and advised of today’s hearing time.

The Applicant’s Submissions
55 Mr Howlett adopted and also spoke to the outline of submissions which had been filed. He also elaborated upon some of the key grounds of appeal.
56 The applicant’s primary submission was that if the stay was not granted the appeal would be rendered nugatory. This was because the jurisdictional hearing, which had sought to be delayed, would proceed on 5 September 2007, prior to the appeal taking place. It was submitted that this was not a case where there was a “fruit of litigation” from the orders made at first instance in the traditional sense. That is, there had been no conferring of a “tangible benefit such as compensation or reinstatement”. It was submitted the grounds of appeal were arguable and the balance of convenience favoured the applicant. It was also submitted that there was the prospect of wasted costs and inconvenience if the stay application was not granted. To support this proposition, the application cited and read from the decision of Kennedy J in The West Australian Locomotive Engine Driver’s Firemen’s and Cleaners’ Union of Workers v Schmid and Others (1995) 76 WAIG 6 at page 7.
57 Mr Howlett also emphasised that notices to the Attorneys-General had not been issued pursuant to s78B of the Judiciary Act, for the jurisdictional hearing. He submitted that as well as forming a ground of appeal, this issue was also relevant to whether the stay ought to be granted. It was also submitted the issues that the applicant sought to raise on appeal were sufficiently important to satisfy s49(2a) of the Act. It was submitted there were special circumstances supporting the granting of the stay because it was required to preserve the integrity of the appeal. In support of this submission, the applicant cited my reasons for decision in John Holland Group Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers (2005) 85 WAIG 3918 at [35]. The applicant also cited other decisions about stay applications which were Burswood Resort (Management) v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch (2000) 81 WAIG 9; Rendezvous Observation City Hotel v Mumme (2006) 86 WAIG 415; Merredin Customer Service Pty Ltd as Trustee for the Hatch Family Trust trading as Donovan Ford/Merredin Nissan and Donovan Tyres v Green (2007) 87 WAIG 133 and St Cecilia's College School Board v Grigson (2006) 86 WAIG 1260.
58 Mr Howlett focused on what he described as four key grounds to establish the arguability of the appeal. The first was, in essence, that the Commissioner has misunderstood the nature of the obligation in s78B of the Judiciary Act. The second as contained in ground 4 (j) and (k) in the notice of appeal was that the Commissioner did not pay sufficient regard to the “public interest consideration” that the questions of law to be determined by the IAC in Aboriginal Legal Service would have a bearing on the conduct of the present jurisdictional hearing. Thirdly, ground 4 (n) which was failing to have regard to the respondent’s submissions that she was advised not to approach potential witnesses. Fourthly, ground (4)(p), which was making an error in the finding of the injustice which would be suffered by the respondent if the jurisdictional hearing was delayed.
59 With respect to the first ground, Mr Howlett contrasted the requirements of s78B(1) of the Judiciary Act as against what was said and decided by Commissioner Mayman. Section 78B of the Judiciary Act provides:-

“(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the AttorneysGeneral of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the AttorneysGeneral, of the question of intervention in the proceedings or removal of the cause to the High Court.
(2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b) may direct a party to give notice in accordance with that subsection; and
(c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
(3) For the purposes of subsection (1), a notice in respect of a cause:
(a) shall be taken to have been given to an AttorneyGeneral if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that AttorneyGeneral; and
(b) is not required to be given to the AttorneyGeneral of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the AttorneyGeneral of a State if he or she or the State is a party to the cause.
(4) The AttorneyGeneral may authorize the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section.
(5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.”

60 I have earlier set out paragraph [20] of the Commissioner’s reasons which Mr Howlett said showed a misunderstanding of the duty of the court under s78B(1) of the Judiciary Act.
61 With respect to the second ground, Mr Howlett argued in effect that the Commissioner had placed too much emphasis upon the lack of any factual comparison between the applicant and the Aboriginal Legal Service and had overlooked the point which was being made. This was that the pronouncement of the law to be made by the IAC in Aboriginal Legal Service would shape, in my words, the course, content and outcome of the jurisdictional hearing before the Commission. In relation to this I asked Mr Howlett whether there could be any evidence which was relevant to the jurisdictional issue, based on the decision of the Full Bench in Aboriginal Legal Service, which he could conceive would not remain relevant whatever the outcome of the IAC appeal. Mr Howlett had, with respect, some difficulty in pointing to any such evidence but said that in any event, the law as set out by the IAC would have the effect just referred to. It was put to Mr Howlett that Senior Commissioner Smith in Bysterveld v Shire of Cue (2007) 87 WAIG 2462 had heard and decided a jurisdictional challenge of the same type without waiting for the decision of the IAC in Aboriginal Legal Service. Mr Howlett suggested (which appears from a review of the reasons to be correct) that it may well have been the case that neither party in that case sought to defer the hearing until the IAC decision.
62 The third ground was that the Commissioner had misunderstood the submissions made by the respondent at the hearing, which I have set out above. It was submitted the Commissioner overlooked the fact that the respondent had not as yet approached witnesses because she had been instructed not to do so but could approach witnesses and obtain relevant witness statements or proofs of evidence.
63 The fourth ground was that the Commissioner erred in paragraph [18] in making the finding about “injustice”. This is linked to ground 3, and what the respondent said about why she thought there was an injustice. Again, Mr Howlett contrasted the finding with what the respondent said and argued there was no serious injustice to the respondent.
64 Mr Howlett also confirmed the appeal books had been filed and the applicant was available for the hearing of the appeal on a number of dates prior to 21 September 2007.
65 At the hearing Mr Howlett also said he would provide a list of authorities which supported the principle he sought to derive from Black, at first instance. The list was provided in the afternoon of 30 August 2007. One of the authorities was City of Sydney Council v Satara [2007] NSWCA 148. This is a very recent decision of the NSW Court of Appeal (decided 8 June 2007) where McColl JA (with whom Beazley and Tobias JJA agreed) discussed the relevant principles in some detail at paragraphs [17]-[38]. This analysis is likely to prove helpful in deciding the appeal and from what I have quickly read does not diminish the arguability of ground 2 as highlighted by Mr Howlett.

The Position of the Respondent
66 As I have said the respondent has been difficult to make contact with, albeit she did advise my associate, that she could not attend the hearing on 29 August 2007, on the first occasion that they spoke. The respondent did not suggest any alternative date that would allow the application to be determined in sufficient time before 5 September 2007.
67 In proceeding with the hearing on 29 August 2007 I tried to ensure that actions were taken, which I have described, so as to preserve the respondent’s opportunity to be heard on the application.
68 I have described the letter and documents which my associate sent to the applicant by email on the afternoon of 29 August 2007. There has been no response to the email. My associate has endeavoured to speak to the respondent by telephone, leaving messages for her at what seems to be a home telephone number and also a mobile telephone. The messages have not been responded to.
69 In all the circumstances, I do not think there is procedural unfairness in determining the stay application today.

Relevant Principles
70 The relevant principles in deciding an application for a stay under s49(11) of the Act have been discussed in cases such as those cited by the applicant which I have set out. Relevantly, ss49(11) and (12) provide:-

“(11) At any time after an appeal to the Full Bench has been instituted under this section a person who has a sufficient interest may apply to the Commission for an order that the operation of the decision appealed against be stayed, wholly or in part, pending the hearing and determination of the appeal.
(12) An application under subsection (11) shall be heard and determined by the President.”

71 The applicant clearly has the “sufficient interest” referred to in s49(11). There is an issue as to whether an appeal to the Full Bench has been “instituted” in the terms of s49(11), given the contents of s49(2a) of the Act which relevantly provides that an “appeal does not lie under this section from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie”. The order under appeal is a “finding” as defined in s7 of the Act because the order did not finally dispose of the matter before the Commission. As I decided in John Holland Group, cited above, however “instituted” in s49(11), means in my opinion when an appeal is filed. This has the effect that a party in the position of the applicant does not have to obtain the leave of the Full Bench referred to in s49(2a) before it is entitled to make an application for a stay to the President under s49(11) of the Act.
72 As I set out in John Holland Group, the legislation does not provide any criteria governing the exercise of the discretion to order a stay. What is clear is that the instituting of an appeal does not automatically stay the operation of the orders of the Commission at first instance. Such a stay will only occur upon the order of the President. The usual course is that there is no stay. Accordingly, in my opinion there must be something about the particular circumstances of the case which makes it just and fair to order a stay. These circumstances might be described as something “special” or “unusual”, but whatever epithet is applied, the reason for the granting of a stay will be, as stated, because it is just and fair in the particular circumstances of the case to do so.
73 In considering this issue, in my opinion usually the most important consideration will be the consequences of whether or not a stay will be granted. This approach is consistent with authorities that I referred to in John Holland Group such as Federal Commissioner of Taxation v Myer Emporium Limited (No 1) (1986) 160 CLR 220; Commonwealth Bank v Bouwman [2003] WASC 205; Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 and Eastland Technology Australia Pty Ltd and Others v Whisson and Others (2003) 28 WAR 308. As I set out in John Holland Group and have referred to in subsequent decisions, in my opinion the principles distilled by Murray and Parker JJ in Eastland Technology at 311 are, with respect, a good general guide as to how to exercise the discretion contained in s49(11) of the Act. The points made by their Honours were:-
“• The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
• It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
• It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
• The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
• If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
• If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.”

74 These principles contemplate what was said by Dawson J at page 222 in Myer Emporium Limited that “the ordinary rule [is] that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal”.

Consideration of the Issues
75 As submitted by the applicant however the order made by Commissioner Mayman does not provide the respondent with “fruit” in the ordinary sense. It has secured for the respondent an earlier hearing of the jurisdictional issue than if the applicant’s request was acceded to by the Commissioner. It may well be however that given the correspondence received from the respondent that she does not at present regard this as much “fruit”.
76 At present, if the application for the stay is not granted, the consequence is clear. The jurisdictional hearing will proceed on 5 September 2007. The appeal against the decision of the Commissioner to not delay the jurisdictional hearing would be made futile or nugatory. If this occurs, the applicant will in effect be denied the opportunity of seeking and obtaining leave under s49(2a) of the Act and succeeding in an appeal. In my opinion this is a strong factor in support of granting the stay application.
77 Its strength as a factor would diminish if the grounds upon which the application for leave and the appeal were sought were not reasonably arguable. In considering this factor however there is some element of restraint involved. As I said in the John Holland Group reasons at paragraph [48], I share the observations of O’Dea P in Robe River Iron Associates v AMWSU (1988) 68 WAIG 1709 where the President at page 1710 said:-
“It is obviously not an appropriate function in an Application of this kind, to decide whether there is a strong case or a fairly strong case. I do not attempt to set out the precise nature of this task but certainly it is to exclude the possibility that there is in fact no issue of substance to be raised – that is what is raised is not a mere triviality. I think there is some difficulty involved in searching too closely the substance and import of the grounds raised in an Appeal at this stage because a Tribunal is bound to avoid reaching any conclusions which might, in a sense, pre-empt the view taken when he constitutes part of the appeal board ultimately.”

78 As part of this I steadily bear in mind that I will be only one member of the Full Bench which will hear the appeal.
79 It is sufficient at this stage to say that the grounds highlighted by Mr Howlett in his submissions are in my opinion reasonably arguable and therefore support the granting of the stay. This is not to say that they are all arguable with the same degree of strength. I also mention that although s78B(1) of the Judiciary Act refers to the duty of the court, it is understood that it is the responsibility of the parties to raise issues about s78B of the Judiciary Act and issue the relevant notices. (see Okmasich v Evans (1980) 25 SASR 481). As set out earlier, the applicant has since early on in the proceedings at first instance raised the issuing of the s78B notices. It is not the function of the Commission to issue the notices. As the respondent is in person and does not appear to have any legal training, it would be appropriate for the applicant who raised the jurisdictional issue and is represented by solicitors and counsel, to issue the notices under s78B of the Judiciary Act. This having been now pointed out, any failure to do so by the applicant might attract the criticism that the applicant is simply desirous of delaying the hearing of the jurisdictional application.
80 As set out in Eastland Technology, even where an appeal might be rendered nugatory if a stay was not granted and there are reasonably arguable grounds of appeal, a stay still might be refused where the balance of convenience does not lie in favour of the applicant. In Eastland Technology, the example of the stay occasioning hardship to the respondent is referred to. In the present case, the respondent has not put before me any particular hardship. In fact from what I have received she also seems to be concerned by the prospect of the hearing proceeding on 5 September 2007. If the stay is granted then it will delay the hearing of the jurisdictional issue at least until the determination of the present appeal.
81 From her reasons Commissioner Mayman was clearly concerned about the consequences of delay upon the efficacy of the substantive hearing, if there was one. This concern reflects the old maxim that “justice delayed is justice denied” and Commissioner Mayman was, with respect, not manifestly in error in being concerned about delay. However, delay does not have a sole mortgage on the justice of an individual case. (See for example Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154).
82 Despite this it is in my opinion in everybody’s interests if the jurisdictional hearing take place as expeditiously as practicable. This is consistent with the Commission’s charter, as alluded to by Commissioner Mayman, in s22B of the Act. Inherent within the expression “proper consideration” in s22B are notions of fairness and justice of the type I have referred to.
83 As discussed with Mr Howlett however concern about delay can to some extent be overcome if the appeal is heard quickly. There seems to be the capacity to do this. This also supports the granting of the stay.
84 In my opinion because of the combination of circumstances described above it is in this case just and fair to make the order for a stay.

The Orders
85 The terms of the orders can be settled at the hearing today. My preliminary view however is that the appropriate orders are:-

(1) The applicant have leave to amend the application for the stay to replace the word “appellant” with “applicant” in the 3 instances it appears on the cover sheet to the schedule to the application and replace the word “respondent” with “applicant” on the final page of the schedule to the application.
(2) The order made by the Commission on 26 July 2007 in application U 543 of 2006 is wholly stayed pending the hearing and determination of appeal number FBA 12 of 2007 or until further order.
(3) The parties have liberty to apply on 48 hours notice for the purpose of seeking any variation to or revocation of order (2).
86 The first order is necessary because of some minor errors of description contained in the application. Leave to amend was sought by Mr Howlett at the hearing and I said that leave would be granted and an order made at the appropriate juncture.

A Final Conundrum
87 Before concluding, I mention the following which may or may not be material. As set out earlier, the notice of hearing on 4 July 2007 and the order made by the Commission on 26 July 2007 are in respect of an “application to adjourn the listing of jurisdictional proceedings”. In fact there was no such application before the Commission. This was because the jurisdictional proceeding at that time had not been listed for hearing. It had previously been listed for hearing on two occasions and then administratively adjourned. Prior to it being listed for hearing again the applicant requested by letter that this not yet occur. The Commission then decided that matter should be determined upon the making of submissions. This was what the hearing on 11 July 2007 was really about. It was the application, submission, or request that the jurisdictional issue not be heard until the determination of Aboriginal Legal Service by the IAC.

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