2007 WAIRC 01121

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2007 WAIRC 01121

CORAM
: THE HONOURABLE M T RITTER, ACTING PRESIDENT
SENIOR COMMISSIONER J H SMITH
COMMISSIONER J L HARRISON

HEARD
:
MONDAY, 17 SEPTEMBER 2007

DELIVERED : TUESDAY, 25 SEPTEMBER 2007

FILE NO. : FBA 12 OF 2007

BETWEEN
:
MRTA OF WA INC
Appellant

AND

PANAGOUTA TSAKISIRIS
Respondent

ON APPEAL FROM:

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CORAM : COMMISSIONER S M MAYMAN
CITATION : (2007) 87 WAIG 2516
FILE NO : U 543 OF 2006

CatchWords:
Industrial Law (WA) - Appeal against decision of Commission - "Application" of appellant to adjourn jurisdictional hearing at first instance declined - Whether matter is in the public interest that an appeal should lie to the Full Bench - Requirements of s49(2a) of the Industrial Relations Act 1979 (WA) examined - Leave to appeal granted - Grounds of appeal unnecessarily prolix - Issues relating to s78B notices under the Judiciary Act 1903 (Cth) - Duty of the Commission when s78B(1) is engaged - Upon which party does the obligation to issue s78B notices lie - Whether a hearing date should be vacated pending the determination of an appeal in another case - Consideration of fairness and justice to the parties in delaying a hearing - Efforts to communicate with respondent who did not appear - Appeal allowed - Appellant directed by Full Bench to issue notices pursuant to s78B

Legislation:
Industrial Relations Act 1979 (WA), s12, s22B, s23(1), s23A, s26, s29, s35, s49(2a), s49(5), s49(6), s49(6a)

Judiciary Act 1903 (Cth), s78B(1), s78B(2)(b), s78B(5)


Result:
Appeal allowed, decision of the Commission varied
REPRESENTATION:
Counsel:
APPELLANT : MR D HOWLETT (OF COUNSEL), BY LEAVE
RESPONDENT : NO APPEARANCE
Solicitors:
APPELLANT : BOWEN BUCHBINDER VILENSKY LAWYERS
RESPONDENT : NO APPEARANCE


Case(s) referred to in reasons:

Aboriginal Legal Service of WA Inc v Lawrence (2007) 87 WAIG 856
Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd and Others (1999) 95 FCR 292; (1999) 167 ALR 303
BGC Contracting Pty Ltd v The Construction Forestry Mining and Energy Union of Workers [2004] FCA 417
Black v Lipovac (1998) 217 ALR 386
City of Sydney Council v Satara [2007] NSWCA 148
Commissioner of Police v Civil Service Association of Western Australia Inc [2002] WASCA 19
Culverhouse v John Septimus Roe Anglican Community School (1995) 75 WAIG 1960
Geelong Football Club Ltd v Clifford [2002] VSCA 212
Griffiths v Kerkemeyer (1977) 139 CLR 161
Holland v R [2005] WASCA 140
House v The King (1936) 55 CLR 499
Integrated Group Ltd t/a Integrated Workforce v Construction, Forestry, Mining and Energy Union of Workers and Skilled Rail Services Pty Ltd (2006) 86 WAIG 2706
Meggitt Overseas Ltd & Others v Grdovic (1998) 43 NSWLR 527
MRTA of WA Inc v Tsakisiris (2007) WAIRC 01048
Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247
Myers v Myers [1969] WAR 19
Okmasich v Evans (1980) 25 SASR 481
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230
Re S and the Adoption Act 2000 [2005] NSWSC 1346
State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549; (1986) 66 ALR 129


Case(s) also cited:

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
Coal and Allied v AIRC 203 CLR 194;
Cousins v YMCA of Perth [2001] WASCA 374; 82 WAIG 5 (IAC 6 2000)
Crown Scientific Pty Ltd v Clarke (2007) 87 WAIG 598
G & M Partacini t/as Bayswater Powder Coaters v SDAE (2005) 85 WAIG 51
John Holland Group Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers (2005) 85 WAIG 3918
Norbis v Norbis (1986) 161 CLR 513
R v Whiteway; Ex Parte Stephenson [1961] VR 168
Re: Mona Olive Kelly and Others together comprising a Repatriation Board (1981) 52 FLR 302 W.A.G. No. 9 of 1981
Rendezvous Observation City Hotel v Ian Mumme 86 WAIG 415
Seale and Anor and Repatriation Commission [2004] AATA 700 (30 June 2004)
Skilled Rail Services Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers FBA 11 2006 (Ref 2006 WAIRC 05199) delivered 3 August 2006
Sydney City Council v Ke-Su Investments Pty Ltd [1985] 1 NSWLR 246
The Registrar v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 126
Thornton v Repatriation Commission (1981) 52 FLR 285
Wayne Shortland v Lombardi Nominees Pty Ltd T/A Howard Porter FBA 28 2006 (2007 WAIRC 00547) delivered 25 June 2007
Yates Settlement Trusts [1954] 1 All ER 619


Reasons for Decision

RITTER AP:

The Application and Appeal
1 The appellant seeks to appeal against a “finding” constituted by an order made by the Commission on 26 July 2007. The hearing as to whether “an appeal should lie” under s49(2a) of the Industrial Relations Act 1979 (WA) (the Act), together with the appeal if this conclusion was in favour of the appellant were heard together on the afternoon of 17 September 2007. (I will for convenience simply refer to an “appeal” and the applicant/appellant as “the appellant”).
2 After the appeal was filed, the appellant also filed an application for the stay of the operation of the decision of the Commission which is the subject of the appeal. The stay application was heard on 29 August 2007. On 31 August 2007 I published reasons for decision and made an order granting a stay (MRTA of WA Inc v Tsakisiris (2007) WAIRC 01048 (“the stay reasons”)).

The Respondent
3 Unusually, the hearing took place without an appearance by or on behalf of the respondent. The respondent also did not appear at the hearing of the stay application. The communications and attempted communications with the respondent by my associate about the stay application are detailed in the stay reasons at paragraphs [42]-[54] and [66]-[69].
4 Despite the best endeavours of the Commission and as I understand it the appellant, there has been no communication with the respondent since that identified in the stay reasons.
5 The attempts by my associate to make contact with the respondent and ensure that she was aware of the hearing of the appeal include:-
(a) Sending to the respondent by email a copy of the stay order and a request that the respondent advise of any unavailable dates for the hearing of the appeal. The respondent had earlier advised that email was her preferred method of communication.
(b) When there was no response to the letter referred to in (a) above, my associate as directed by me listed the appeal for hearing. My associate sent by registered mail a letter explaining when the hearing was going to take place, a copy of the notice of hearing and the practice direction about an outline of submissions and list of authorities. The letter also invited the respondent to advise if she sought a direction from the Full Bench that as an unrepresented party she be excused from having to comply with the practice direction.
(c) Copies of these documents were also sent to the respondent by email.
(d) My associate has not as yet received any confirmation from Australia Post that the registered mail was collected by the respondent. As explained to her, the system is that if somebody is not at the address on the mail to collect and sign for it, a collection notice is left there and the mail taken to the closest post office for collection. On 17 September 2007 my associate spoke to Australia Post and was advised that further information about what had happened to the delivery of the mail would be available on 19 September 2007. As it turned out this information was not available until 20 September 2007. My associate was advised the mail was not received on delivery. A card was left advising of the mail to be collected but so far it has not been.
(e) On 17 September 2007 my associate tried to speak to the respondent by telephone to see whether she intended to appear at the hearing. My associate telephoned the home, work and mobile telephone numbers of the respondent. There was no answer at the home telephone. At the work telephone number my associate was told the respondent was not at work. There was no answer on the mobile telephone and my associate left a voice mail message which has not been replied to.

6 At the commencement of the hearing Mr Howlett, appearing for the appellant, informed the Full Bench that his instructing solicitors had attempted to serve the respondent with their outline of submissions and list of authorities by registered post, but they also had no information that the mail had been collected. Mr Howlett submitted it was appropriate to proceed with the hearing. The Full Bench agreed with this and advised Mr Howlett that he should proceed with his submissions.
7 I concurred with this because in the particular circumstances of this case it would not be procedurally unfair for the hearing to take place in the absence of the respondent. This is because:-
(a) Both the Commission and the appellant have taken reasonable measures to ensure the respondent was aware of the hearing and what was to be determined at the hearing.
(b) Given the background as set out in the stay reasons it appears there may well be, for whatever reason, a decision made by the respondent not to involve herself in the appeal.
(c) As set out in the stay reasons, in my opinion it is in everyone’s interests that this appeal be expeditiously decided one way or the other.
(d) My view was that the decision on the appeal would need to be reserved. After this occurred my associate would be directed to again try and communicate with the respondent about the hearing. This would constitute yet another effort to advise the respondent of what was happening and give her the opportunity, if she chose to do so, to involve herself in the proceedings.

8 My associate has acted in accordance with (d) above but there has been no response.

The Background
9 In the stay reasons I set out the relevant background in some detail. During the hearing of the appeal it was not submitted that there was any error in this description. Accordingly I adopt and incorporate into these reasons, paragraphs [3]-[39] of the stay reasons. These paragraphs discussed the application at first instance, the notice of answer, relevant correspondence, the course of the hearing on 11 July 2007, the order and the reasons for decision.

The Order
10 Bearing in mind the present appellant is the respondent at first instance, the order of the Commission on 26 July 2007 was that it:-
“ORDERS that the respondent’s application to adjourn the listing of jurisdictional proceedings is dismissed.”

11 As set out in paragraph [87] of the stay reasons there was a conundrum in the order as there had been no application to adjourn the listing of jurisdictional proceedings before the Commission. This was because the jurisdictional proceedings had not at that time 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 appellant requested by letter that this not yet occur. The Commission then decided that matter should be determined upon the making of oral submissions. This was what the hearing on 11 July 2007 was about. It was as I set out in the stay reasons an “application, submission, or request that the jurisdictional issue” at that stage not be listed for hearing.
12 The mismatch between the order and the application before the Commission was discussed with Mr Howlett at the hearing of the appeal. Mr Howlett was given the opportunity to take instructions upon whether he wished to amend the grounds of appeal to include a ground based upon this. After doing so Mr Howlett informed the Full Bench that the appellant did not seek leave to amend its grounds of appeal.

Section 49(2a) of the Act
13 Due to the terms of s49(2a) of the Act, the first hurdle which the appellant has to overcome is that the Full Bench decides “the matter is of such importance that, in the public interest, an appeal should lie”.
14 In Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247 I discussed the requirements of s49(2a) of the Act at paragraphs [12]-[14] of my reasons, which were agreed with by Gregor SC and Smith C. I there stated:-
“12 The appellant accepted that the order made by the Commission was a “finding” as defined in s7 of the Act. This was because the order did not finally dispose of the matter before the Commission at first instance. Accordingly, the appellant also accepted that s49(2a) of the Act applied to the appeal. This subsection provides that an appeal does not lie 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 subsection focuses the attention of the Full Bench upon “the matter”. It seems that a determination is to be made as to whether the matter, as opposed to individual appeal grounds, is of such importance that, in the public interest, an appeal should lie. Accordingly, it seems that the Full Bench may not form the opinion that an appeal should lie on only some of the grounds.
13 In RRIA v AMWSU and Others (1989) 69 WAIG 1873, the Full Bench at 1879 said that the words “public interest” in s49(2a) of the Act should not be narrowed to mean “special or extraordinary circumstances”. As stated by the Full Bench, an application may involve circumstances which are neither special nor extraordinary but which are, because of their very generality, of great importance in the public interest. The Full Bench, on the same page, went on to say that important questions with likely repercussions in other industries and substantial matters of law affecting jurisdiction can give rise to matters of sufficient importance in the public interest to justify an appeal. The RRIA decision was cited with approval and applied in the recent Full Bench decision of CSA v Shean (2005) 85 WAIG 2993 at 2995-2997.
14 The forming of the opinion referred to in s49(2a) of the Act involves a value judgment and is clearly a matter which the Full Bench needs to assess on a case by case basis, having regard to the issues which the proposed appeal will give rise to.”

15 The emphasis in s49(2a) is upon the “matter” and the “public interest”. It is not upon what might be important to the parties. Some broader public interest is the primary consideration.
16 In the schedule attached to the notice of appeal, the appellant set out in 18 numbered paragraphs what it asserted was the public interest for present purposes. The appellant did not elaborate upon this in its written outline or oral submissions but was content to adopt what was in the schedule. With respect, I do not think that the contents of the schedule in any clear or succinct way point to aspects of the subject matter of the appeal as being in the public interest.
17 As set out in the stay reasons, the respondent had filed an unfair dismissal claim with the Commission. The appellant asserted the Commission had no jurisdiction because it was a “constitutional corporation”. The appellant submitted and the Commission accepted that it was necessary to first hold a hearing into whether the Commission had jurisdiction. On two occasions this issue was listed for hearing but administratively adjourned. The appellant then asked that the re-listing of the issue not take place until the outcome of the Industrial Appeal Court (IAC) decision in IAC 4/2007. This was an appeal against Aboriginal Legal Service of WA Inc v Lawrence (2007) 87 WAIG 856, a decision of the Full Bench about the basis for determining whether or not a corporation is a trading corporation.
18 For the reasons set out in the stay reasons, the Commission did not accept that the jurisdictional hearing should be delayed as submitted by the appellant. The appeal against that decision is the “matter” for the purposes of s49(2a) of the Act. The schedule to the notice of appeal appears at times to confuse that with the issue of whether the decision of the IAC in Aboriginal Legal Service will be of public interest. As to the latter there is little doubt but this is not the same “matter” as the “matter” now before the Full Bench.
19 There are in my opinion however two aspects of the matter before the Full Bench which are of sufficient importance in the public interest so that the appeal should lie. The first of these is the requirements of s78B(1) of the Judiciary Act 1903 (Cth) which is raised in the grounds of appeal. The second is the approach which the Commission ought to take when there is an application to adjourn a hearing pending an appeal to the IAC (or the Full Bench) which is likely to involve issues of law relevant to the determination of the application.
20 Accordingly in my opinion the present appeal should lie.

The Grounds of Appeal
21 The grounds of appeal were set out under two headings being “The Judiciary Act 1903 (Cth) (“Judiciary Act”)” and “The Exercise of Discretion”. As I indicated in the stay reasons, in my opinion the grounds of appeal were unnecessarily prolix. The stay reasons contained a hint that the appellant ought to redraft the grounds and seek leave to substitute the grounds of appeal at the hearing. The appellant did not however act upon the hint. When discussed with Mr Howlett at the hearing, he accepted that there were some overlap in the grounds of appeal but asserted that under the heading “The Exercise of Discretion” there had been an attempt to set out the alleged errors in the categories identified in House v The King (1936) 55 CLR 499 at 504/5. Mr Howlett, whilst accepting that not each of the grounds had the same strength, declined to formally abandon any of them. Accordingly the Full Bench is obliged, either individually or collectively, to determine each of the grounds. To this end I set out in full below the grounds of appeal:-
“The Judiciary Act 1903 (Cth) (“Judiciary Act”)

1. The Commission erred in misunderstanding the Respondent’s argument in relation to the obligations pursuant to section 78B of the Judiciary Act.

2. The Commission erred in law in not complying with the mandatory requirement of s78B(1) of the Judiciary Act

3. Further or alternatively, the Commission acted arbitrarily and/or capriciously in not dealing with s78B(1) of the Judiciary Act in a manner consistent with that taken by the Commission as constituted by different Commissioners and the President in other Applications.

The Exercise of Discretion

The Commission erred in exercising its discretion for the reasons that follow:

1. It acted upon a wrong principle in:

a Incorrectly applying the principle in Myers v. Myers (1969) WAR 19 by refusing an adjournment (which should have been granted) in circumstances where there would be serious injustice to the Appellant when, by comparison, there was no serious injustice to the Respondent because:

i. The Respondent was able to approach witnesses to give evidence on the substantive matter (contrary to the finding of the Commission and even though that was not the Respondent’s submission) which meant that there was no issue of injustice affecting the Respondent to weigh against the issues of injustice affecting the Appellant;

ii. The injustice that the Commission found (paragraph 18 of the reasons for decision) was different to the perceived injustice as stated by the Respondent (see paragraph 11 of the reasons for decision even though that was not the Respondent’s submission); and

iii. There was no reason articulated by the Commission as to why the Appellant’s submission (contained at paragraph 6 of the reasons for decision) did not completely alleviate the Respondent’s perceived injustice (as stated at paragraph 11 of the reasons for decision even though that was not the Respondent’s submission).

b. Failing to have proper regard to the serious injustice to the Appellant (Respondent in U543 of 2006) in the event that an adjournment was not granted.

c. Identifying as a “principle” the requirement to deal with matters promptly and take evidence as close as possible to the events to which the application relates without referring to any authority.

d. In the event that there is such a principal or requirement of law (as referred to at sub-paragraph c. above) the hearing in relation to jurisdiction would not satisfy that principal or requirement of law.

e. Failing to apply the principle that there is a need to prevent there being any more uncertainty than is necessary in industrial matters.

f. Giving undue weight to the requirements of section 26 and insufficient weight to the principles in Myers v. Myers (1969) WAR 19.

g. Failing to apply the relevant principles in relation to a stay application that were relevant to an application for an adjournment.

2. It allowed extraneous or irrelevant matters to guide or affect it in:

a. Giving or giving too much weight to the Respondent’s (Applicant in U543 of 2006) only objection to the adjournment.

b. Failing to have proper regard to the serious injustice to the Appellant (Respondent in U543 of 2006) in the event that an adjournment was not granted.

c. Giving weight or too much weight and consideration to its incapacity to draw any comparison between the nature of the work carried out by the Appellant in ALS and the nature of the work carried out by the Appellant in this appeal.

d. Giving undue weight to the requirements of section 26 and insufficient weight to the principles in Myers v. Myers (1969) WAR 19.

e. Giving undue weight to the fact that two hearing dates had been vacated.

f Misunderstanding and/or misapplying the decision of Beech C in Culverhouse v John Septimus Roe Anglican Community School 75 WAIG 1960.

g. Misunderstanding and/or misapplying the obiter of Justice Scott in Commissioner of Police v Civil Service Association of Western Australia Inc.

3. It mistook the facts in:

a. Perceiving that the Appellant submitted that the Commission should issue the notices pursuant to the Judiciary Act.

b. It’s finding as to the injustice to the Respondent (Applicant in U543 of 2006) which was contrary to the Respondent’s submission (see paragraph 11 of the reasons for decision even though that was not the Respondent’s submission).

4. It did not take into account material considerations in:

a. Failing to treat as relevant to the Appellant’s submissions as to the application of s78B(1) of the Judiciary Act.

b. Failing to recognise that there was nothing to balance, in relation to injustice to the Respondent, against the injustice to the Appellant.

c. Failing to have regard or sufficient regard to the fact that the outcome of the appeal in IAC 4 of 2007 would assist the Commission in determining the question of jurisdiction. In ALS, the Full Bench held that:

“20. A decision of the Full Bench on this appeal will be of assistance to other Commissioners who are required to determine whether a corporation is a trading corporation.

21. It is accordingly unnecessary to consider the second basis on which leave was sought.”

The same applies, with equal force, in relation to the decision by the Industrial Appeal Court in IAC 4 of 2007.

d. Failing to have regard or sufficient regard to the fact that the purpose of the Full Bench decision in ALS, as quoted in the paragraph above, could not be achieved while the appeal in IAC 4 of 2007 was pending.

e. Failing to have regard or sufficient regard to the fact that the outcome of the appeal in IAC 4 of 2007 would assist both the Appellant and the Respondent in preparing and presenting their cases on the question of jurisdiction.

f. Failing to properly recognise and record the Respondents submissions in relation to the adjournment.

g. Failing to have proper regard to the fact that the Respondent (Applicant in U543 of 2006) was able to approach witnesses and to gather evidence and that in that regard the Respondent’s only recorded objection to the adjournment was misconceived (even though that was not the Respondent’s submission).

h. Failing to have proper regard to the serious injustice to the Appellant (Respondent in U543 of 2006) in the event that an adjournment was not granted.

i. Failing to have sufficient regard to the fact that issues of law unconnected to the facts relating to the work carried out by the Appellant in this appeal or the facts relating to the work carried out by the Appellant in ALS were likely to be determined by the Industrial Appeal Court in ALS.

j. Failing to have regard or proper regard to the Appellant’s submission that any questions of law determined by the Industrial Appeal Court in IAC 4 of 2007 would have a bearing on the conduct of the case (submissions and evidence) in the jurisdiction hearing in U543 of 2006.

k. Failing to have sufficient regard to the public interest considerations in relation to sub-paragraph j. above.

l. Not giving sufficient weight or consideration to the submissions in relation to the decision in Peter Black v Tomislav Lipovac BHNF Maria Lipovac & Ors [1998] 699 FCA (4 June 1998) Full Court of the Federal Court compared to the obiter of Justice Scott referred to in paragraph 2g. above.

m. Failing to require evidence or explanation from the Respondent as to why she could not approach witnesses to give evidence on the substantive matter (even though that was not the Respondent’s submission).

n. Failing to have regard to the Respondent’s submission that she was advised not to approach potential witnesses.

o. Failing to allow the Appellant to make submissions in relation to the finding of injustice contained at paragraph 18 of the reasons for decision when such finding was contrary to the submission made by the Respondent (thereby denying the Appellant natural justice).

p. Failing to properly have regard to the considerations of fairness and justice to the parties as required by Myers v Myers [1969] WAR 19 when the injustice to the Respondent, as found by the Commission, was not the injustice stated by the Respondent and when there was, in truth, no injustice to the Respondent.

q. Failing to properly have regard to the fact that because the Respondent’s challenge is a challenge to jurisdiction the evidence in relation to the merits of the case would not be heard in the preliminary hearing.

r. Failing to properly have regard to the fact that whether or not there is an adjournment will not assist in the Commission’s concern as to the evidence in relation to the merits.

s. Failing to properly have regard to the fact that some of the principles in relation to a stay application had equal application to an adjournment.”

22 In his oral and written submissions however Mr Howlett primarily focussed upon the Judiciary Act grounds, and grounds 4(j), (k), (n) and (p).

The Judiciary Act Grounds
23 The constitutional issue was raised by the appellant on 21 December 2006 when in its notice of answer it asserted the Commission did not have jurisdiction because it 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)”.
24 The notice did not contain any particulars supporting the assertion the appellant was a constitutional corporation. With the notice of answer the appellant’s solicitors filed a letter to the Commission dated 21 December 2006. The letter said that no further action could be taken until the jurisdictional question was determined and also asserted without particulars that the respondent needed to comply with the “Judiciary Act 1903” before the matter could proceed any further.
25 No notices pursuant to s78B(1) of the Judiciary Act were issued by either party before the hearing on 11 July 2007. It has not been suggested that notices were not required. In my opinion they were (see Aboriginal Legal Service at paragraph [10]; Re S and the Adoption Act 2000 [2005] NSWSC 1346 at paragraphs [30]-[35]).
26 At the hearing on 11 July 2007 the non issuing of the s78B notices was relied on by Mr Howlett as being a reason why the jurisdictional issue should not as yet be listed for hearing. Mr Howlett said:-
“A further reason why this matter should not be listed for jurisdictional argument and why the adjournment should be granted is that no notices have been issued pursuant to the Judiciary Act, and that is a matter that the respondent has raised formally on at least two occasions in letters dated 21 December last year and 11 January this year.”
(T6)

27 Mr Howlett then referred the Commission to the reasons of the Full Bench in Aboriginal Legal Service at paragraph [10] about the issuing of s78B notices in that appeal.
28 In her reasons, the Commissioner set out this submission at paragraph [7]. The Commissioner dealt with the issue at paragraph [20] as follows:-
“20 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.”

29 In my opinion this paragraph of the Commissioner’s reasons, with respect, demonstrates error. Firstly the lack of s78B notices was a relevant consideration in determining whether to continue to adjourn the jurisdictional hearing. Secondly the Commissioner referred to the “notification process” in s78B of the Judiciary Act but ignored what that section says about the duty of the Commission, as a court. (See s12 of the Act). In my opinion grounds 1 and 2 of the Judiciary Act grounds are established. Ground 3 is not. I do not think there is support for the contention that the Commissioner acted “arbitrarily” or “capriciously”. There were no particulars supporting these claims, which should not properly have been made.
30 Section 78B of the Judiciary Act is in the following terms:-
“(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.”

31 Section 78B(1) of the Judiciary Act clearly states “it is the duty of the court not to proceed in the cause unless and until the court is satisfied” that the notices have been given. The duty of the Commission not to proceed until it was satisfied as required by the subsection was overlooked by the Commissioner in her reasons.
32 During the hearing of the appeal an issue emerged as to whether s78B(1) was engaged or could be complied with prior to a hearing date having been set. In my opinion a hearing date is not so required. This stems from the language used, being “not to proceed in the cause”. The subsection requires the giving of a notice and a reasonable time for the AttorneysGeneral to consider the question of intervention or removal. If a hearing date has been set then it is easy to determine whether or not a reasonable time exists between the issuing of the notice and the hearing date. If no hearing date has been set however then it will be possible to structure the hearing date to take into account the required reasonable time. There is no requirement in s78B(1) for the notices to say when the hearing is. And the notices can and in my experience have been drafted to accommodate a hearing date not yet being set.
33 This approach is consistent with the purpose of notices under s78B(1) of the Judiciary Act. In State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549; (1986) 66 ALR 129, Kirby P at page 558 (NSWLR) said of s78B:-
“… The object of the new procedure is clear. It is to ensure that, in our Federal polity, the Federal, State and Territory law officers should always be afforded the opportunity to consider whether the possible effect of a matter before the courts on their interests and on the development of constitutional law is such that they should avail themselves of the opportunity to intervene. If the matter is not already before the High Court, they should have the opportunity to consider whether to seek removal of the cause. The history of the legislation suggests that the change that was introduced in 1976 simply altered the exclusive jurisdiction of the High Court to a contingent exclusive jurisdiction, upon the option of the Attorneys-General and decision of that Court. But that option could not properly be exercised without reasonable notice of the considerations to govern the exercise.”

34 Kirby P also said at pages 558 and 559 (NSWLR) that:-
“… s 78B is expressed in terms that are unusually emphatic … and … strictly limited exceptions … In such circumstances, the duty should not be narrowly confined.”

35 The reasons of Kirby P in State Bank of NSW were cited with approval by French J in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd and Others (1999) 95 FCR 292; (1999) 167 ALR 303. At paragraph [12] French J referred to the court’s duty not to proceed, apart from the exceptions specified in s78B(2) and (5), being “unqualified by any residual discretion to proceed”. In the same paragraph his Honour reiterated the observations of Kirby P that the strictly limited exceptions to the duty imposed on the court stressed the importance attached by Parliament to the proper fulfilment of the duty of notification.
36 At paragraphs [25]-[27] French J concluded:-
“[25] In the ordinary course, if one or other of the parties had raised the constitutional point in its pleadings, the question of the issue of a s 78B notice would have arisen well prior to the trial date. Although in this case there were case management conferences prior to trial, the issue was not raised. The Court's awareness of the point as arising in this case was only enlivened upon a review of the pleadings in the weekend prior to the trial and recent unrelated consideration of the issue by the trial judge
[26] It is probably not possible to construct a fail safe mechanism to avoid recurrence of the inconvenient course thrust upon the Court and the parties in this case. It may be, however, that in future the possibility of s 78B applying to a case should routinely be checked by solicitors and counsel for the parties and, in a case where there is any doubt, should be raised in a directions hearing or case management conference.
[27] The provisions of s 78B themselves may merit further review to broaden the discretion of the Court to proceed with a cause to which it applies provided that reasonable notice is given to Attorneys-General so that they may intervene at some time before the conclusion of the proceedings which could be adjourned part heard for that purpose or, in a suitable case, to allow submissions by any intervening Attorney-General after the evidence and before judgment. That, however, is a matter for the legislature.”

37 This makes it clear that the opinion of his Honour was that there was no requirement for a hearing date to be set before the duty set out in s78B(1) was engaged.
38 An illustration of this appears to be Holland v R [2005] WASCA 140. An appeal against conviction involved a constitutional issue. Malcolm CJ noted in paragraph [4] of his reasons that a s78B notice was filed on 17 December 2003 and served on all Attorneys-General. The report indicates however that the appeal was not heard until 14 February 2005. Common knowledge of how the Supreme Court appeal lists then operated strongly suggests that at the date of the filing and serving of the s78B notices, no hearing date had been set.
39 It is also clear that the Justices of the High Court believe there is no requirement for a hearing date before notices should be issued. The High Court Rules 2004, rule 5.02 sets out when s78B(1) notices should be issued. This contemplates, for example, notices being given as early as 7 days after the filing of any originating process. (Rule 5.02(b)). In an explanatory statement accompanying this new rule issued with the authority of the justices, it said the rule was to “overcome procedural difficulties which have occurred during proceedings raising constitutional issues. The court has had occasion to adjourn proceedings because a notice under s78B of the Judiciary Act 1903 had not been given to the appropriate Attorney-General, or because a notice had not been given within a reasonable time.”
40 The Commissioner said the notification obligation lay upon the present appellant. In their letter to the Commission in December 2006, the appellant contended otherwise. In some Australian jurisdictions there are provisions in the rules which set out that the party who raises the issue has the obligation to issue the notices. (See for example High Court Rules 5.01.1, Federal Court Rules Order 51, Supreme Court Rules NSW Order 12, Supreme Court (General Civil Procedure) Rules 2005 (Vic) Order 19; cf Federal Magistrates Court Rules 2001 10.06). The Commission does not have any such prescription. However, common sense dictates that in this case the appellant ought to have issued the s78B notices. They could have done it as early as in late December 2006 or January 2007. At that stage the appellant had raised the constitutional issue. As the appellant put to the Commission the issue needed to be first determined. The respondent knew what that constitutional question was. As it was represented by at least solicitors at that stage the appellant would have been able to comply with the procedural requirements of s78B.
41 In Okmasich v Evans (1980) 25 SASR 481 there was an appeal against convictions for unlawfully taking abalone pursuant to the Fisheries Act 1971-1977 (SA). White J referred to the issue of whether there was “some possible collision” between the provisions of the Fisheries Act 1952 (Cth) and the South Australian Fisheries Act (page 486). White J said that if the appellant had wished to raise that point he should have done so in the hearing before the Magistrate and obtained an adjournment in order to give the requisite written notice of his intention to do so to the Attorneys-General pursuant to s78B of the Judiciary Act. His Honour said that at no stage did the appellant raise the point and said if there was in existence some Commonwealth provision regulating fishing for abalone which came into collision with the State legislation the provision had not come to his attention nor did it come to the notice of the Magistrate.
42 This decision reinforces the point that the appellant could and should have issued the s78B notices. That it did not do so appears to be based upon a misconception of the party on whom the duty lay, as referred to in the letter dated 21 December 2006. Also at that stage given the duty which lay upon the Commission, it could have made a direction to the appellant under s78B(2) of the Judiciary Act.
43 In the stay reasons at paragraph [79] I said the following:-
“… 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.”

44 The appellant did not however issue the s78B notices prior to the hearing of the appeal. Mr Howlett explained that even if the notices were now filed and served, this would not cure the error made by the Commissioner at first instance. Whilst this might be so, the fact remains that the notices are required to be issued before the jurisdictional issue can be determined. Accordingly there is no logical reason why the appellant at least now cannot issue the s78B notices forthwith. I uphold the grounds of appeal 1 and 2 but will later consider the relief which the appellant is entitled to.

The Exercise of the Discretion Grounds
45 As quoted above, under the heading “The Exercise of Discretion”, the schedule to the notice of appeal has four grounds, with sub-grounds setting out why it is asserted the exercise of the discretion miscarried. As stated earlier, these grounds were framed with an eye focussed upon the well-known passage of the reasons of three members of the High Court in House v The King. In this passage it was said:-
“But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

46 This well known passage is authoritative in appeals to the Full Bench against discretionary decisions of Commissioners.
47 As stated, Mr Howlett focussed upon grounds 4(j), (k), (n) and (p).

Focus on the Commissioner’s Reasons
48 Before turning to these grounds I wish to focus a little more closely upon the reasons given by the Commissioner for not accepting that the hearing of the jurisdictional issue should be further delayed.
49 At paragraphs [12]ff the Commissioner made its assessment of the application. The Commissioner said she had taken into account a number of factors in assessing whether there would be a serious injustice to the appellant. This statement was linked to the submissions of the appellant and what the Commissioner had said in paragraph [3] of her reasons as follows:-
“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, principles reflected in Myers v Myers [1969] WAR 19.”

50 This persuades me that the Commissioner had, with respect, the correct approach in mind in deciding the application, even though it was not strictly an application to adjourn. Indeed, the appellant does not contest this. It argues instead that the Commissioner erred in assessing the extent of the prejudice to be suffered by the appellant and the respondent.
51 The factors considered by the Commissioner as set out in paragraphs [12]ff of her reasons were:-
(a) The complexity and costs issue raised by the appellant having to participate in the hearing prior to the IAC decision in Aboriginal Legal Service. The Commissioner said whether “it be the current decision of the Full Bench or the IAC determination following the hearing of IAC 4/2007 the Commission considers on balance that all relevant decisions would require consideration”. ([13]).
(b) Two hearing dates for the jurisdictional hearing had already been vacated. ([14]).
(c) The Commissioner was unable to draw any comparison between the nature of the work carried on by the appellant and the Aboriginal Legal Service given “limited submissions and no evidence before me on which to make such a comparison”. ([15]).
(d) The appellant’s submission about a public interest case for adjourning the listing of the jurisdictional issue was not made out because of the lack of submissions or evidence upon which to make a comparison between the appellant and the Aboriginal Legal Service. ([16].
(e) Matters coming before the Commission are best dealt with promptly and evidence is best taken from witnesses as close as possible to the events to which the application relates, citing Scott J in The Commissioner of Police v Civil Service Association of Western Australia Inc [2002] WASCA 19. ([17]).
(f) If the listing of the jurisdictional proceeding is adjourned there will be injustice to the respondent in that she will be “unavailable [sic-unable] to call evidence on the substantive matter for a lengthy period of time from the date of dismissal”. (The dismissal was on 30 October 2006). ([18]).
(g) Claims of unfair dismissal must be dealt with expeditiously, citing Culverhouse v John Septimus Roe Anglican Community School (1995) 75 WAIG 1960. ([18]).
(h) The appellant cited cases about stay applications but there is a significant difference between an application for a stay and an application for adjournment. ([19]).
(i) The s78B of the Judiciary Act argument was irrelevant. ([20]).

52 The Commissioner therefore concluded that “to adjourn the listing of the jurisdictional proceedings would mean a serious injustice” to the respondent. ([21]). It appears also from the structure and text of the Commissioner’s reasons that she did not find there was a serious injustice to the appellant by the failure to further delay the hearing of the jurisdictional issue. In my opinion, for the reasons later set out, I do not think there was demonstrated to be any serious injustice to the appellant by the Commissioner not acceding to the application.

Ground 4(j)
53 Ground 4 is drafted as a ground of not taking into account material considerations. Ground 4(j) is failing to have regard or proper regard to the appellant’s submission that any questions of law determined by the IAC in Aboriginal Legal Service “would have a bearing on the conduct of the case (submissions and evidence)” in the jurisdictional hearing.
54 In support of this ground the appellant took the Full Bench to the grounds of appeal in Aboriginal Legal Service which were also placed before the Commissioner at first instance. It was pointed out that the grounds of appeal brought into question the “qualitative assessment” of the trading activity of the Aboriginal Legal Service which the Full Bench thought was determinative of whether it was a trading corporation. The grounds also raise the question of whether the use of monies earned by trading activity was relevant to whether a corporation was a trading corporation.
55 Although the Commissioner did not perhaps deal with this issue very clearly at paragraph [15] of her reasons, she said that the principal submission that the Full Bench decision in Aboriginal Legal Service was the subject of an IAC appeal, listed for hearing, was “accepted”. The Commissioner then went on to say that she was unable to draw any comparison between the nature of work carried on by the appellant and the Aboriginal Legal Service.
56 The Commissioner also set out the appellant’s argument with clarity in paragraph [4] of her reasons in which it was recorded that the appellant “submitted that a critical aspect of the Commission’s consideration as to whether [sic] adjourn the listing of the jurisdictional proceedings was the uncertain state of the law in this area until the outcome of the IAC’s considerations” in Aboriginal Legal Service was known. The appellant submitted the IAC decision “would settle the matter.” In my opinion what the Commissioner was in effect saying was that in the absence of any evidence or submissions comparing the appellant with the Aboriginal Legal Service it was difficult to assess the extent to which the IAC decision would have an impact upon the present application.
57 Mr Howlett drew our attention to the Full Bench decision of Integrated Group Ltd t/a Integrated Workforce v Construction, Forestry, Mining and Energy Union of Workers and Skilled Rail Services Pty Ltd (2006) 86 WAIG 2706. In paragraph [6] of these reasons the Full Bench said:-
“The appeals were then listed for hearing on 24 July 2006. Prior to that date counsel for the CFMEU advised that they wished the hearing to be adjourned. Due to the unavailability of members of the Full Bench, an application to adjourn could not be heard until the date of the hearing. Accordingly, on the morning of the hearing, counsel for the CFMEU sought an adjournment. This was because the Full Bench had on 29 June 2006 reserved its decision in another appeal which involved a number of similar issues to those raised in the present appeals. This appeal was Skilled Rail Services Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2006] WAIRC 05199; (2006) 86 WAIG 2509 (Skilled No 1). Counsel for the CFMEU argued that once Skilled No 1 was decided, that decision would determine or at least substantially decrease the issues in dispute in the present appeals. Accordingly, it was argued that overall there would be a saving of time and money for the parties if the adjournment was granted. The application to adjourn was opposed by both Integrated and Skilled. We were of the view however that it was appropriate to grant an adjournment.”

58 Mr Howlett pointed out that no reasons for decision about the adjournment application were otherwise published in that case. This is so, although upon checking I confirmed that extempore reasons for decision were given on 24 July 2007 at (T29). It is appropriate that these reasons be reproduced in published form and I will arrange for this to occur. In any event however the reasons for the adjournment application being granted can be gleaned from paragraph [6] quoted above. This is that the Full Bench accepted the other decision “would determine or at least substantially decrease the issues in dispute in the present appeals”.
59 Mr Howlett submitted that on the basis of a parity of approach the application at first instance should have been granted. I do not accept this submission. This links with what the Commissioner at first instance said about the lack of evidence or submissions upon the nature and activities of the appellant. In the absence of such information, it is not possible to say that the decision by the IAC in Aboriginal Legal Service will “determine or at least substantially decrease the issues in dispute” in the jurisdictional application.
60 When asked how the decision of the IAC in Aboriginal Legal Service could affect the evidence which the appellant would adduce at the jurisdictional hearing, Mr Howlett struggled to find an answer. At one point he suggested that if the “qualitative approach” was not accepted by the IAC it might not be necessary to lead evidence about all of the things which the appellant did with the money it received/earned. I do not accept this is a likely outcome of the IAC decision in Aboriginal Legal Service.
61 The IAC is bound by what the High Court has said about determining the status of a trading corporation. The Full Bench reasons in Aboriginal Legal Service at paragraphs [196]-[218] summarised relevant decisions of the High Court. In paragraph [232] of its reasons the Full Bench, based on the High Court decisions, summarised that whether a corporation was a trading corporation was a question of fact to be determined upon the evidence before the Commission. The primary focus was on what the corporation did; that is what its activities are. A corporation is a trading corporation if it substantially engages in trading activity. It is difficult to see that the IAC could as a matter of law and precedent say anything different to this. As a result I cannot see that the outcome of the appeal in Aboriginal Legal Service will have an impact upon the evidence which the appellant will need to lead at the hearing of the jurisdictional issue.
62 I accept that when the IAC hands down its decision in Aboriginal Legal Service (assuming the case is not settled beforehand) the exposition of the law is likely to assist the appellant in the submissions it wishes to make to the Commission. This does not of itself however dictate that the Commissioner erred in failing to delay the hearing until after the IAC decision.
63 The issue of vacating a trial date pending the determination of an appeal in another case was recently considered by the New South Wales Court of Appeal in City of Sydney Council v Satara [2007] NSWCA 148. When asked by me, Mr Howlett did not submit there were any errors of law in the reasons of McColl JA (with whom Beazley JA and Tobias JA agreed). It is accepted that the decision is not on all fours with the present case. The court was there dealing with an appeal against an adjournment granted on the basis of an application for special leave to appeal to the High Court in another case which, if special leave was granted, could have an impact upon the relevant law. The general observations of McColl JA are however of assistance. I extract the following five important observations by McColl JA in City of Sydney Council:-
(a) An appeal court will only interfere with a decision to grant or refuse an adjournment in exceptional cases and then only where the discretion has been exercised on a wrong principle or resulted in serious injustice; citing Meggitt Overseas Ltd & Others v Grdovic (1998) 43 NSWLR 527 at 528. ([18]).
(b) The court should deal with the law as it is, rather than speculate about changes in the law; citing Starke J in Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 at 253 and other authorities. ([19], [20]).
(c) It is not “ordinarily sufficient to show that an appeal yet to be heard in another case may reach a legal conclusion which could support the claim made by the party seeking the adjournment”; quoting with approval the reasons of Ormiston JA (with whom Callaway JA agreed) in Geelong Football Club Ltd v Clifford [2002] VSCA 212 at paragraph [6]. ([30]).
(d) There were no black and white rules preventing adjournments in appropriate circumstances and in a civil case involving some technical rule of law or the disputed meaning of a particular section, “where the hearing and the resolution of the case will directly depend on the outcome of an appeal in a test case” it would be preferable to await the expected outcome; quoting Ormiston JA again at paragraph [6]. ([30]).
(e) Possible changes in the law are too speculative and it is ordinarily rare that one can foresee that a decision on appeal will necessarily apply although in some circumstances it might be open to a trial judge to adjourn the hearing of a case pending the outcome of an appeal yet to be heard in another case (quoting Ormiston JA in Geelong Football Club at paragraph [7] and citing Meggitt. ([30], [32]).

64 Having regard to these principles I am not satisfied that ground 4(j) has been established. In particular given the lack of evidence or information about the activities of the appellant, the Commissioner did not err in failing to delay the hearing of the jurisdictional issue until the IAC decision. It is not in any way apparent how or even if the IAC decision will impact upon the result in the present application.
65 Mr Howlett also cited Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at page 154 (per Dawson, Gaudron and McHugh JJ) and pages 164-166 (per Kirby J). At page 154 in the joint reasons it was said that “the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim”.
66 Whilst those observations cannot be doubted the requirements of justice are multifaceted and vary with the circumstances of the individual case.
67 The general jurisdiction of the Commission under s23(1) of the Act is to “enquire into and deal with any industrial matter”. An alleged unfair dismissal as an industrial matter may be referred to the Commission under s29 of the Act. Section 23A of the Act gives the Commission power to make certain remedial orders if it finds the dismissal of an employee was harsh, oppressive or unfair. The remedies provided, in general terms, are those of reinstatement or compensation. Where reinstatement is sought, there is obviously a need, subject to the requirements of procedural fairness, for the application to be determined as expeditiously as reasonably possible. Even where reinstatement is not sought, as here, the nature of the jurisdiction and powers of the Commission is such that the dispute ought be arbitrated with reasonable expedition. This requirement is legislated for in s22B of the Act which says that:-
“22B. Commission to act with due speed
In the performance of its functions the Commission is to act with as much speed as the requirements of this Act and a proper consideration of the matter before it permit.”

68 As I said in the stay reasons, notions of justice and fairness are inherent within the expression “proper consideration” in s22B of the Act. Nevertheless in being concerned about more delay, the Commissioner was clearly not in error.

Ground 4(k)
69 Ground 4(k) refers to the public interest considerations in relation to ground 4(j). As articulated, this was the public interest consideration in the parties saving time and expense and the time of the Commission being saved if the jurisdictional issue was decided after the IAC decision.
70 In paragraph [16] of her reasons the Commissioner did not accept the “public interest case for adjourning”. It is argued that this observation ignores the fact that the Aboriginal Legal Service decision of the IAC would have relevance irrespective of whether there was a close comparison between the appellant and the Aboriginal Legal Service. I have already addressed this issue. In my opinion any failing of the Commissioner, as submitted, was not such that it vitiated the exercise of her discretion. This is because the potential impact of the Aboriginal Legal Service decision was not shown to be crucial to the outcome of the application.

Grounds 4(n) and 4(p)
71 Ground 4(n) was that the Commissioner did not take into account material considerations in failing to have regard to the respondent’s submission that she was advised not to approach potential witnesses. This is linked to ground 4(p) which was also heavily relied upon. Ground 4(p) was that the Commissioner did not properly have regard to the considerations of fairness and justice to the parties as required by Myers v Myers [1969] WAR 19, when the injustice to the respondent, as found by the Commissioner, was not the injustice stated by the respondent and there was in fact no injustice to the respondent.
72 The respondent, who appeared in person before the Commissioner, made short submissions opposing the continuing delay of the hearing of the jurisdictional issue. Her submissions occupied a half page of transcript (T13). Relevantly, the respondent submitted:-
(a) She was concerned about a further adjournment.
(b) If the Commission did not have jurisdiction she had obtained legal advice that there would be other options “but that also did depend on how much time that this matter takes here”.
(c) In answer to a leading question from the Commissioner about how further delays were prejudicing her, the respondent said: “The longer it takes, the harder it is for me … this happened last year and I put in the application last year. The further the delays go, the harder it will be for me if it does progress to the stage that I need to bring in witnesses. Obviously, since I've left the employer, the MRTA, I don't have connections”.
(d) She had not approached witnesses as she was advised she should not until the matter progresses and so it would be harder to get statements and other material required for the case.
(e) Also she was “just worried about the delay and how it'll affect me to prepare for it and that I won't know where I stand”.

73 In paragraph [11] of her reasons the Commissioner said of the present respondent:-
“The applicant opposed the application to adjourn the listing of the jurisdictional proceedings submitting if the matter was to be delayed further it would be more difficult to approach witnesses to give evidence on the substantive matter.”

74 In my opinion this was not an inaccurate summary of submission (c) of the respondent, in the list above.
75 In paragraph [18] the Commissioner set out that she considered the injustice to the respondent to be an inability “to call evidence on the substantive matter for a lengthy period of time from the date of dismissal”. In paragraph [21] the Commissioner referred to the “serious injustice” to the respondent.
76 The appellant asserts the respondent did not complain about the injustice referred to by the Commissioner in paragraph [18]. I am not at all sure that this is correct, given at least (a), (c) and (e) above. In any event, however, it is obvious that ordinarily a lengthy delay between dismissal and hearing will cause injustice to the parties. Mr Howlett submitted the injustice would be the same for both parties. I am not sure that this is so either in the present case or generally, where an applicant has the onus of proving that their dismissal was unfair and that they should obtain one of the remedies set out in s23A of the Act. Mr Howlett also submitted the respondent could in effect secure her position by now contacting witnesses and obtaining witness statements. She might be able to do this, but merely locating witnesses and obtaining witness statements would not necessarily or entirely avoid the potential injustice of a further delayed hearing. Witnesses’ memories fade and they can become ill, indisposed, or difficult or impossible to locate. Simply having a witness statement or even an affidavit does not, at least in all cases, fill the real potential for an evidential gap caused by one of these events. Additionally delay in potentially obtaining a remedy was prejudice in itself.
77 It is correct that the Commissioner did not refer to the statement by the respondent that she was advised not to approach potential witnesses. In my opinion however this was not something so material that it vitiated the exercise of the Commissioner’s discretion. I do not accept there was no injustice to the respondent by the continued delay of the hearing of the jurisdictional issue, as asserted in ground 4(p).

The Other Grounds of Appeal
78 As set out earlier, the appellant did not abandon any of the other grounds or sub-grounds of appeal under the heading “The Exercise of Discretion”. I have already referred to the repetitive nature of many of these sub-grounds. Generally, I think what I have said above is sufficient to collectively dispose of each of them. Many of the sub-grounds are predicated upon an asserted “serious injustice to the appellant” if the jurisdictional hearing was not delayed. I do not accept that there was or is a serious injustice to the appellant. As stated the appellant’s evidence will not in all likelihood be affected by the IAC decision. In my opinion the outcome of the IAC decision is not closely linked with the outcome of the present case, at least on the basis of the information before the Commission and the Full Bench. Applying the principles extracted from City of Sydney Council it would probably not have been a sound exercise of discretion to defer the hearing, in the face of the opposition by the respondent.
79 It is necessary to make a few specific observations on some of the other grounds of appeal. Ground 2(f) complains that the Commissioner misunderstood or misapplied the decision of Beech C in Culverhouse. In that decision Beech C emphasised the juridical and forensic need for unfair dismissal applications to generally be heard promptly. Beech C did not as the Commissioner said at paragraph [18] decide that unfair dismissal claims “must be dealt with expeditiously”. This did however form the basis of the decision the Commissioner made. The Commissioner referred to the 9 month delay since the dismissal, characterised this as a “lengthy period” and said it was a “relevant consideration”. None of this was erroneous.
80 Grounds 2(g) and 4(l) complain about the Commissioner’s reliance upon the observations of Scott J in Commissioner of Police and say insufficient weight was placed on the submissions about Black v Lipovac (reported in (1998) 217 ALR 386). Black was an appeal in part against an assessment of damages in a case of medical negligence. One aspect of the appeal, the question of interest on the past component of the award of damages under the principle in Griffiths v Kerkemeyer (1977) 139 CLR 161, was adjourned pending the decision of another Full Court, of five members, which would determine a conflict of authority on the issue. This situation is an example of principle (d) from City of Sydney Council, listed above. It is far removed from that which was before the Commissioner. The comments by Scott J were in the context of an appeal about the jurisdiction of the Public Service Arbitrator. The appeal reached the IAC without any evidence being taken at all and therefore no occasion for the applicant to obtain a remedy. The comments of Scott J were, with respect, entirely understandable. The quotation from his Honour’s reasons was “in regard for” the “principle” which the Commissioner mentioned in paragraph [17] of her reasons and is summarised in paragraph [50](e) above. There was no error in this reasoning of the Commissioner.
81 There is a complaint in ground 1(c) that there was no authority cited to support the principle that matters should be dealt with promptly and evidence taken as close as possible to the events to which the application relates. In my opinion this is a fairly obvious and common sense point and the failure to cite any authority did not mean that the Commissioner fell into error.
82 There is also a complaint in ground 1(f) about the giving of undue weight to the requirements of s26 of the Act. I do not accept this. The Commissioner did not mention s26 in her reasons.
83 Ground 2(e) asserts the Commissioner gave undue weight to the fact that two hearing dates had been vacated. I do not accept this as the ongoing length of the delay from the date of dismissal was important to the determination of the issue by the Commission.
84 Ground 4(o) complains the Commissioner did not allow the appellant to make submissions about the finding of injustice contained at paragraph [18] of the reasons for decision, when the finding was contrary to the submission made by the respondent and therefore the appellant was denied natural justice. I do not accept this. The appellant’s counsel was able to and did deal with the issue of whether there was an injustice caused by the respondent not calling evidence on the substantive matter for a lengthy period of time. Indeed it made the submission which it has continued to rely on, being that this injustice could be obviated by the taking of witness statements and the like.
85 Overall in my opinion it has not been established that, save for the s78B notice issue, the Commissioner’s discretion miscarried.
86 I do not think any of the grounds of appeal under the heading “The Exercise of the Discretion” have been established.

Relief
87 It remains to be considered what the outcome of the appeal ought to be.
88 I am satisfied that the discretion of the Commissioner miscarried because of her errors in relation to s78B of the Judiciary Act.
89 The powers of the Full Bench on appeal are set out in s49(5) of the Act. The Full Bench may subject to s49(6) uphold an appeal and vary a decision in such a manner as the Full Bench considers appropriate. Additionally s49(6a) provides that the Full Bench should not remit a case to the Commission unless it considers it is unable to make its own decision on the merits of the case because of lack of evidence or for other good reason.
90 In my opinion this is a case where the Full Bench should vary the decision made by the Commissioner. Once the s78B notices have been issued and a reasonable time allowed for responses thereto, there is no reason why the hearing of the jurisdictional matter cannot proceed.
91 Both the Commissioner and the Full Bench under s78B(2)(b) of the Judiciary Act, may direct the appellant to give notices in accordance with s78B(1) of the Judiciary Act (see BGC Contracting Pty Ltd v The Construction Forestry Mining and Energy Union of Workers [2004] FCA 417 at [8]). The notices could be issued within a short period of time, say seven days.
92 The Full Bench now directing the appellant to issue notices under s78B(1) was not discussed with counsel for the appellant. It is however an outcome which will in my opinion best resolve the appeal. If they wish to do so, the appellant may speak to this issue following the publication of a minute in accordance with s35 of the Act.

Minute of Proposed Orders
93 In my opinion, a minute of proposed orders should issue that:-
1. The appellant is granted leave to appeal.
2. The appeal is upheld.
3. The decision of the Commission made on 26 July 2007 is varied by the order being substituted with an order in terms of 4 below.
4. The appellant is directed, pursuant to s78B(2)(b) of the Judiciary Act 1903 (Cth), to give notices within 7 days in accordance with s78B(1) of the Judiciary Act.

94 The effect of these orders is that s78B notices will be issued The Commissioner at first instance will again be seized of the application and be able to list the jurisdictional issue for hearing as soon as reasonable to do so, in terms of s78B(1) of the Judiciary Act.

SMITH SC:
95 I have read the reasons of decision of His Honour, the Acting President and I agree with those reasons and have nothing to add.

HARRISON C:
96 I have had the benefit of reading the reasons for decision of His Honour, the Acting President. I agree with those reasons and have nothing to add.
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