2008 WAIRC 00331

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2008 WAIRC 00331

CORAM
: THE HONOURABLE M T RITTER, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
COMMISSIONER P E SCOTT

HEARD
:
TUESDAY, 25 MARCH 2008, WEDNESDAY, 2 APRIL 2008

DELIVERED : FRIDAY, 30 MAY 2008

FILE NO. : FBA 27 OF 2006

BETWEEN
:
EDWARD MICHAEL
Appellant

AND

DIRECTOR GENERAL, DEPARTMENT OF EDUCATION AND TRAINING
Respondent

ON APPEAL FROM:

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CORAM : COMMISSIONER J L HARRISON
CITATION : 86 WAIG 2627
FILE NO : U 116 OF 2005

CatchWords:
Industrial Relations (WA) – Appeal against order of the Commission in unfair dismissal claim – interlocutory applications – application to the Full Bench to consider “new and additional” documents – application to review video record of proceedings at first instance.

Additional documents – whether “new” documents/distinction between new and fresh evidence – “George Moss” test - most documents available to be used at first instance – appellant bound by the way in which he conducted his case at first instance – appellant bound by the actions of his counsel at first instance – application dismissed.

Application to the Full Bench to review video record of proceedings – coaching of witnesses – appellant able to observe conduct and make submissions at first instance – no submissions made – documents brought into evidence after hearing date not cogent – no injustice in Full Bench not receiving all documents - application dismissed.

Legislation:

Industrial Relations Act 1979 (WA)
s23A, s26(1)(b), s31(3), s49(4), s49(4)(a)

Public Sector Management Act 1994 (WA)
s79(5)

Result:
Order issued, Interlocutory Applications dismissed
REPRESENTATION:
APPELLANT : THE APPELLANT APPEARED IN PERSON
RESPONDENT : MS R HARTLEY (OF COUNSEL), BY LEAVE
Solicitors:
RESPONDENT : THE STATE SOLICITORS OFFICE OF WESTERN AUSTRALIA


Case(s) referred to in reasons:

Appellant WADC of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 298
Coulton v Holcombe (1986) 162 CLR 1
Federated Clerks’ Union Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040
Devereaux-Warnes v Hall [2006] WASCA 268
Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215
Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852
Hanssen Pty Ltd v Construction, Forestry, Mining and Energy Union (Western Australian Branch) (2004) 84 WAIG 694
Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788
Kershaw v Sunvalley Australia Pty Ltd (2007) 87 WAIG 1169
McCarthy v Sir Charles Gairdner Hospital (2004) 84 WAIG 1304
Shortland v Lombardi Nominees Pty Ltd trading as Howard Porter (2007) 87 WAIG 1158
State Railway Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29
University of Wollongong and Others v Metwally (No. 2) (1985) 59 ALJR 481; 60 ALR 68
Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672

Reasons for Decision

RITTER AP:

Summary of Outcome
1 For the reasons which follow in my opinion the two applications by the appellant to the Full Bench to firstly receive additional documents in support of the appeal and to secondly view the video record of the proceedings at first instance should both be dismissed.

The Application at First Instance
2 On 14 October 2005 the appellant filed a notice of application seeking an order pursuant to s23A of the Industrial Relations Act 1979 (WA) (the Act). The application was made on the ground that the appellant’s dismissal as a state school mathematics teacher on 21 September 2005 was harsh, oppressive or unfair. He was then teaching at Pinjarra Senior High School but the dismissal was for a substandard teaching performance when at John Willcock College in Geraldton in 2004. The application was defended and proceeded to a hearing. The appellant was then represented by solicitors and counsel. The hearing took place before the Commission on 20 and 21 April 2006. Final written submissions were then filed and reasons for decision were delivered on 24 July 2006. On the same date an order was made dismissing the application.

The Notice of Appeal
3 On 14 August 2006 the appellant instituted an appeal against the dismissal of the application. At that time the appellant was still represented by his solicitors. The notice of appeal was accompanied by a document setting out 10 “grounds of appeal”.
4 After the filing of the notice of appeal the appellant ceased to retain his solicitors.
5 The appeal was not progressed for a lengthy period of time, due to a number of reasons which do not need to be set out. In the latter half of 2007 the appeal was then re-activated.

The Two Interlocutory Applications
6 An appeal book and two interlocutory applications were filed on 27 August 2007.
7 The first was an application to the Full Bench to receive and consider new and additional “materials” not in evidence at first instance. These “materials” were documents. The second application was for the Full Bench to conduct what was described as a “review of proceedings at first instance”. There were two aspects to this application. The first was for the Full Bench to ascertain whether there were errors in the transcript of the proceedings at first instance, as identified in a list prepared by the appellant. The second application was for the Full Bench to look at and listen to the video record of the proceedings at first instance. At a later directions hearing the appellant said the purpose of this was to support the appellant’s contention that the respondent’s advocate improperly coached witnesses. That advocate was not the respondent’s counsel.

Orders by the Full Bench, Documents Consequently Filed and Transcript
8 Pursuant to an order made by the Full Bench on 15 January 2008 the respondent on 22 January 2008 filed and served an indexed file of all of the documents received as exhibit R1 by the Commission at first instance. This comprised 244 documents and 570 pages. Not all of these documents had been included in the appeal book. As later described this comprised all but one of the documents before the Commission.
9 The appellant was ordered to file the following documents:
(a) A statutory declaration that set out how he asserted he found out that documents which he had provided to his solicitor were not in evidence before the Commission and annexed a list of the documents attached to the application which:
(i) The appellant asserted were not in evidence before the Commission.
(ii) The appellant asserted were improperly changed.
(iii) In relation to (ii), identified the asserted changed version of the document which was in evidence before the Commission.
(b) A list of:
(i) The pages and paragraphs of the transcript said to be incorrect.
(ii) The asserted correct version of what was said at the hearing.
(iii) The date and time when this evidence was given.
(iv) The date and time on the video record of the proceedings where it is asserted there was coaching of the respondent’s witnesses.

10 The appellant in effect complied with these orders on 6 February 2008.
11 The respondent had the opportunity to file and serve a statutory declaration in response to that of the appellant but did not do so.
12 Due to an assertion by the appellant that the transcript of the first instance hearing was inaccurate, the Commissioner arranged for the hearing to be transcribed a second time by a different organisation. In these reasons I will use quotations and page numbers from the second transcript. In the appellant’s statutory declaration and the other documents he filed the page numbers in the first transcript were used.

The Appellant’s Statutory Declaration
13 The appellant’s statutory declaration contained a page of dot points with an attached list of what were described as the “new documents”. This contained numbers for these documents, the page number of exhibit R1 to which the “new” document related, pages of the transcript where that document had been referred to and a summary of the point being made by the appellant about the new document. There were then two pages which had tables on them, one of which was headed “more important documents were with my solicitor” and the other “additional documents”. Under these headings were tables in the same format as I have just described. Behind these tables were copies of the documents which the appellant wanted the Full Bench to consider in addition to the trial documents.
14 With one exception, explained below, the dot points in the statutory declaration were as follows except that for ease of reference I have changed the dot points to numbers:
“1. My Solicitor collected about 920 - 950 documents before the Court day from me and the Department Of Education, and he presented ZERO to the court. (transcript page number 7 last paragraph, and page number 8 last paragraph, first day 20/04/04)

2. My Solicitor presented only two documents in the last few minutes after the court finished in the and the witnesses left the court to go home (Ref:- transcript page 241 paragraph 6 & and page 243 paragraph 5 second day 21/04/04)

1- Holly's letter
2- the report from Pinjarra S.H.S

3. The Department Of Education presented 600 document (Transcript page number 7, last paragraph, first day 20/04/04), they used only about 4.2% from these document and the rest 95.8% they ignored it because most of these documents explaining facts against them, some document were (forged), and the rest were fabricated document

5. Very important conversation between my Solicitor and my self regarding to the commissioner in the beginning of the court day

6. Documents presented to commissioner Harrison by the respondent contained forged signatures and excluded important contents (lessons plans)

7. Conflicting reports by the respondent regarding my employment after Mt Magnet D.H.S (termination v placement request form)

8. A number of complaints and documents were presented by the respondent which I was never been made aware of until after Commissioner Harrison reached her decision

9. A fabricated letter from Shane Hill MLA LAPOQA which is far from the truth

10. Investigator report page 221 to 233 changed 143-155 (forged)

11. Commissioner Harrison refused to allow me the time to present my case by not granting my councilor [sic] the time to present very important facts. (Transcript page 55 first day on 20/04/04)

12. Commissioner Harrison assisted the respondent's witness (Mr. Pilkington) with his answers. (Transcript page 128 last paragraph and the time between 37:00:00 to 37: 12:00)” ([sic] to all paragraphs and emphasis in original – T128 in the first transcript is T37 in the second)

15 The fourth dot point I have deleted. This contained information about settlement offers which had been made to the appellant and this was objected to by the respondent. It is not information which should be put before the Full Bench. Points 5, 11 and 12 are not about documents. Point 12 was not pursued by the appellant in the application to the Full Bench to view the video record.
16 The statutory declaration also contained a list of the page and paragraph references which the appellant asserted were incorrect and the correct version. There were six pages and paragraph numbers asserted to be incorrect in the transcript.
17 The appellant also provided five pages of tables setting out:
(a) The times “when people from the Department of Education gave the answer for my lawyer’s question in body language [sic]” (“Document 1” at pages 1-2).
(b) The times “when the camera wasn’t on my lawyer when he ask [sic] the question” (“Document 2” at pages 1-3).

The Additional Documents
18 For clarity and ease of reference set out below in a table is a list of the additional documents filed by the appellant in support of the application. I have given each document a number. The page numbers are as marked by the appellant on the document filed:


Document
Number

Description of Document

Date
(if any)

Page Number(s)
1
Grounds on which Full Bench should reverse decision

1
2
Letter from appellant to the Commission
27 August 2007
2
3
Letter from Mr K Pilkington to the appellant
18 August 2004
3
4
Letter to appellant from Ms Tracy Kelly
16 August 2004
4
5
Letter “To Whom It May Concern”
16 August 2004
5
6
Letter from Mr Gary Savill to Ms Jillian Stewart
15 August 2004
6
7
Letter from C Jakovljevic to Mrs B Carey

7
8
Note by Ms Sarah Savill

8
9
Letter from Ms Tracy Kelly to the appellant
2 April 2004
9
10
Letter from C Jakovljevic to the appellant
17 May 2004
10
11
Memorandum from Mr K Pilkington to the appellant
23 August 2004
11
12
Record of conversation with Mr and Mrs Jackson and Corrina Jackson
20 August 2004
12 - 13
13
Letter from Mr and Mrs Jackson to Mr K Pilkington
20 August 2004
14
14
Letter to Mr K Pilkington from Corrina Jackson
21 August 2004
15
15
Letter from Mr K Pilkington to the appellant
17 December 2004
16
16
Letter from appellant to Mr K Pilkington
19 February 2005
17
17
Note to appellant from “Jillian” (Ms Stewart)
30 July 2004
18
18
Certificate from Cairo Ministry of Education about appellant

19
19
Letter from appellant to Mr K Pilkington

20 - 21
20
Letter from appellant to Mr K Pilkington

22 - 24
21
Note from Ms Stewart to appellant
21 June 2004
25
22
Facsimile from Mr T Vaughan, State School Teachers’ Union of WA (SSTU), to appellant
25 May 2004
26
23
Letter from Department of Education and Training (DET) to Mr D Kelly, General Secretary, Australian Education Union (AEU)
15 January 2002
27
24
Letter from Dr John Crawford To Whom It May Concern
11 August 2007
28
25
Notes of maths game headed “STEWARTZ!”, with annotations

29
26
Notes headed “Explanation of Multiplying 15 x 5 was lost on most of the class” typed by the appellant, with annotations

30
27
Letter from the appellant to Mr K Pilkington
10 August 2004
31 - 35
28
Lesson comments by Ms J Stewart, with annotations by the appellant
5 August 2004
36 - 38
29
Document typed by appellant with heading “Block 2 Friday 25 June 2004 Year 9”

39 - 50
30
Letter from the appellant to Complaints Management Unit, DET
18 November 2004
51
31
Memorandum to appellant from “Anne” at Mount Magnet District High School
1999
52
32
Athletic Award Certificate given to appellant
24 September 1999
53
33
Letter from Mr Ireland to appellant
18 February 2000
54
34
Annotated “Action Plan” for appellant

55
35
Blank page headed “Lesson Plan”

56
36
Lesson plan with annotations, unsigned
30 June 2004
57 - 59
37
Typed mathematical questions with annotations

60 - 69
38
Annotated lesson plan, signed
3 August 2004
70 - 71
39
Attachment to lesson plan: Typed notes headed “Writing Algebraic Expressions”, with annotations

72 - 76
40
Annotated lesson plan
11 August 2004
77 - 78
41
Attachment to lesson plan: Document of typed mathematics questions with annotations

79 - 82
42
Annotated lesson plan, unsigned
16 June 2004
83 - 84
43
Attachment to lesson plan: Typed mathematics questions headed “Using fractions”

85 – 87
44
Handwritten notes

88
45
Lesson plan
11 August 2004
89 - 91
46
Attachment to lesson plan: Typed mathematical questions with annotations

92 - 95
47
Attachment to lesson plan: Typed notes headed “Writing Algebraic Expressions”

96
48
Document headed “Self Evaluation” by the appellant, signed
13 August 2004
97
49
Letter from appellant to Mr K Pilkington
9 August 2004
98 - 102
50
Handwritten notes by Ms J Stewart, unsigned
25 June 2004
103
51
Letter from appellant to Mr A Huts, Executive Director Human Resources, DET
30 July 2005
104 - 110
52
Handwritten note from K Farrington, Geraldton Health Service to Mental Health Team re appellant
23 August 2004
111
53
Document by Ms J Stewart headed “Appraisal Process”
16 August 2004
112 - 113
54
Notes of observations by Ms J Stewart
9 August 2004
114 - 116
55
Typed document headed “Second Test”

117 - 118
56
Notes of observation
28 June 2004
119 - 120
57
Photocopies of pages of textbooks about “Measurement”

121 -124
58
Letter by appellant
7 December 2004
125 - 131
59
Note from Geraldton Regional Hospital to Mental Health Team about appellant

132
60
Letter from appellant to Ms Franklyn, SSTU
7 August 2004
133
61
Letter from Bruce Seymour, Head of Learning Area, Mathematics - To Whom It May Concern
9 November 2004
134
62
Letter from Mr Butcher, Principal, Katanning Senior High School -To Whom It May Concern
15 November 2004
135
63
Mathematical Association Certificate of Attendance to appellant
2003
136
64
Handwritten note by Holly Reynolds
7 June 2004
137
65
Letter from appellant to Ms Jack
20 August 2004
138
66
Document headed “Appraisal Process”
25 June 2004
139 - 143
67
Appraisal Process
28 June 2004
144 - 146
68
Handwritten notes by Ms J Stewart
25 June 2004
147
69
Letter from appellant to Director General, DET
14 May 2005
148
70
Notes by Mr K Pilkington
25 June 2004
149
71
Document headed “Lesson comment” with annotations
5 August 2004
150 - 152
72
Letter from appellant to Director General, DET

153 - 154
73
Typed document headed “Response to Saul Molina” by the appellant

155 - 163
74
Typed notes about incidents

164 - 165
75
Email from Ms Tania Monument to Ms Beth Aitken
7 June 2005
166
76
Letter from Dr Crawford - To Whom It May Concern
25 August 2007
167
77
Email from Mr Newman to Ms Jack
10 September 2004
168
78
Worker’s Compensation First Medical Certificate about appellant
3 September 2004
169
79
Handwritten notes about mathematic lessons

170 - 171



There are no pages 172- 173
80
Geraldton Secondary College student referral of student KW
14 May 2004
174
81
Geraldton Secondary College student referral
2 August 2004
175
82
Geraldton Secondary College student referral of KW
24 May 2004
176
83
Notes of conversation between appellant and Mr K Pilkington

177
84
Typed notes headed “Clarification of roles”

178 - 179
85
Portion of typed lesson plan with annotations

180
86
Handwritten notes

181
87
Notes of “drop in observation” by Mr K Pilkington
25 June 2004
182
88
Notes of observation of lesson by Mr K Pilkington
30 June 2004
183 - 185
89
Handwritten notes about lesson observation by Mr K Pilkington
23 June 2004
186 - 188
90
Summary of lesson observation
23 June 2004
189
91
Handwritten note by Mr K Pilkington
25 June 2004
190
92
Notes of drop in observation Mr K Pilkington
25 June 2004
191
93
Self reflection by appellant
5 August 2004
192
94
Lesson plan
11 August 2004
193 - 194
95
Letter from Dr Crawford – To Whom It May Concern
16 November 2004
195
96
Handwritten note
19 August 2004
196
97
Note from Mr Jackson to the staff

197
98
Letter from Ms Tracy Kelly to Mr K Pilkington
16 August 2004
198
99
Notes to appellant by Ms Carey

199
100
Document of appellant headed “Response to Saul Molina”
27 January 2005
200 - 208
101
Progress report for student at John Willcock College Term 1 2004

209
102
Slater and Gordon file memorandum

210
103
Typed notes of questions

211
104
Typed document headed “Final interview most likely questions”

212
105
Typed questions “For Kevin”

213
106
Typed summary of interview between appellant and Mr Peter Burgess
18 May 2005
214 - 220
107
Typed summary of interview between appellant and Mr Peter Burgess with tracked changes
18 May 2005
221 - 233
108
Handwritten notes of drop in observation by Mr K Pilkington
25 June 2004
234
109
Handwritten note from appellant to Ms Jack
24 September 2004
235
110
Form for mathematical problem solving

236
111
Letter from Mr K Pilkington to appellant
31 August 2004
237
112
Note to year 8 teachers from “Jillian”

238
113
Typed mathematical questions

239 - 261
114
Letter from Mr David Kelly, General Secretary, SSTU to the appellant
8 June 2007
262
115
DET Secondary Staffing facsimile
27 November (no year)
263
116
Letter from Mr Shane Hill MLA to Mr Rod Baker, DET
1 October 2004
264
117
Letter from Mr G Savill to Ms J Stewart
15 August 2004
265
118
Letter from appellant to Mr K Pilkington
Received 6 August 2004
266
119
Letter from appellant to Mr Pilkington
19 February 2005
267
120
John Willcock College “Memo from Kathy Pilks” to appellant
4 August 2004
268
121
Handwritten note headed “Rescheduled meeting 5 August 2004”

269
122
Geraldton Secondary College student referral
24 February 2004
270
123
Handwritten notes of mathematics game headed “Stewartz!”

271
124
Incomplete typed portion of memorandum or letter by appellant
17 January 2005
272
125
Certificate from Cairo Ministry of Education

273
126
Letter from Mr and Mrs Kelly to Mr K Pilkington
16 August 2004
274
127
Letter from Ms Tracey Kelly to appellant
16 August 2004
275
128
Letter from Mr and Mrs Kelly to Mr K Pilkington
3 August 2004
276
129
Document headed “Viewing Edward Michael”
11 August 2004
277
130
Memorandum from appellant to Mr K Pilkington

278 - 279
131
Letter from Ms Beth Aitken, Principal Pinjarra Senior High School to appellant
24 August 2005
280
132
Handwritten note by Ms J Stewart
25 June 2004
281
133
Pinjarra Senior High School “Teaching Set List”
6 May 2005
282
134
Typed and handwritten notes about mathematical problems

283
135
Signed memorandum by the appellant to Mr K Pilkington
27 August 2004
284
136
Document headed – To Whom It May Concern by appellant

287
137
Letter from Mr Baker to appellant
14 September 2004
288
138
John Willcock College “Memo From Kathy Pilks” to appellant
29 April 2004
289
139
Handwritten note to “Edward” from “Kathy”
5 May 2004
290
140
Note to “Kurt” from “Barbara Carey”

291
141
Record of meeting about unsatisfactory performance
29 June 2004
292
142
Letter from Ms Jack to appellant
28 September 2004
293
143
Letter from Mr Baker to appellant
14 September 2004
294
144
Letter from Mr Baker to appellant
6 September 2004
295
145
Letter from Mrs Karen Gilligan to appellant
3 April 2004
296
146
Letter from Dr Proud to Ms Tania Monument, DET
2 March 2005
297 - 299
147
Letter from appellant to Mr John Ryan
12 April 2000
301
148
Letter from Dr Crawford – To Whom It May Concern
11 August 2007
302
149
Letter from appellant to Mr David Kelly, SSTU

303 - 305
150
Letter from appellant to Mr David Kelly, SSTU
25 June 2007
306 - 307
151
Facsimile journal report
1 September 2006
308
152
Letter from appellant to Ms Susan Hopgood
11 July 2007
309 - 310
153
Letter from appellant to Ms Hopgood
8 August 2007
311
154
Facsimile journal record
7 August 2007
312
155
John Willcock College “Memo From Kathy Pilks”
3 August 2004
313
156
Facsimile from SSTU to appellant
2 August 2004
314
157
Handwritten note from appellant to “Kathy”
4 August 2004
315
158
Letter from appellant to Ms Aitken
10 August 2007
316
159
Letter from appellant to Ms Aitken
16 August 2007
317 - 318
160
Facsimile journal report
16 August 2007
319
161
Letter from Ms Aitken to appellant
27 June 2005
320
162
Letter from Ms Aitken to Whom It May Concern
14 August 2007
321
163
Facsimile from Ms Aitken to appellant
13 August 2007
322
164
Letter from appellant to Ms Aitken
10 August 2007
323
165
Facsimile journal record

324
166
Letter from Ms Aitken to appellant
27 June 2005
325
167
Handwritten notes about lesson observations

326 - 328
168
John Willcock College “Memo From Kathy Pilks”
24 June 2004
329
169
Typed note by appellant “re: Jodi Teacher Assistant”

330
170
Copies of documents 170 and 169 put onto the same page

331
171
Handwritten note – To Whom It May Concern by appellant
27 August 2007
332
172
Undated, unsigned letter “To Whoever It May Concern”

333
173
Letter from appellant to Mr Shane Hill
9 July 2007
334
174
Registered post customer receipt
11 July 2007
335
175
Letter from appellant to Ms Eva Sims
October 2004
336
176
School notes about KW
February - July 2004
337 - 338
177
Geraldton Secondary College Student Referral of KW
29 July 2004
339
178
John Willcock College Contact Record for KW
16 June 2004
340
179
John Willcock College Contact Record for KW
18 March 2004
341
180
Geraldton Secondary College Student Referral of KW
29 March 2004
342
181
Geraldton Secondary College Student Referral of KW
5 April 2004
343
182
Questionnaires completed by Mathematics Students

344 - 355
183
Unsigned letter by appellant to“Simon”
3 April 2006
356 - 360
184
Letter from a teacher to "Whoever it may concern"
12 July 2007
361
185
Letter from appellant to SSTU
10 January 2008
362
186
Facsimile Transmission Verification Report (time: 2:21pm)
10 January 2008
363
187
Facsimile Transmission Verification Report (time: 2:24pm)
10 January 2008
364

The Appellant’s Self Representation and Hearing Dates
19 Whilst the applications were pending, the appellant was for a time represented by an industrial agent. He was then represented by a friend who was appointed as his agent but this did not continue up until the hearing of the interlocutory applications.
20 At the hearing the appellant represented himself. He did so with the assistance of an Egyptian interpreter who was able to assist him in understanding any language which was not clear. This did not happen on very many occasions.
21 The hearing of the applications occurred on 25 March and 2 April 2008. At the conclusion of the second day the Full Bench reserved its decision.

Appellant’s Written Submissions and Documents Handed to the Full Bench.
22 At the commencement of the hearing the appellant handed to the Full Bench six sets of written submissions. These were:
(a) A summary of general points.
(b) A document headed “The commissioner gave her decision based on:-”. (For ease of reference I will call this document “Submissions on the Basis of the Commissioner’s Decision”.)
(c) A first analysis of the documents in exhibit R1.
(d) A second analysis of the documents in exhibit R1.
(e) A third analysis of the documents in exhibit R1.
(f) A list of documents in exhibit R1 not previously seen by the appellant.

23 The appellant also provided to the Full Bench, without objection by the respondent, copies of two books which he had co-written for the Ministry of Education in the Republic of Egypt. The Full Bench were able to look at the books during the hearing of the applications and then photocopied the cover and first few pages of the books before returning them to the appellant.
24 On the second day of hearing the respondent, without objection by the appellant, provided the Full Bench with a copy of exhibit A1 tendered by the appellant’s counsel at the hearing at first instance. This document had not been included in the appeal book.

Description and Analysis of the Appellant’s Six Sets of Written Submissions
25 I will now describe and consider the relevance of these submissions.

(a) Summary of General Points
26 The Summary of General Points said at the outset that they did not “relate in [sic] direct way to the matter”. The document said the points were important background. Whilst I accept the appellant believes this, none of the contents of this document are relevant to resolving the present applications.

(b) Submissions on the Basis of the Commissioner’s Decision
27 This submission contained a list of 15 difficulties the appellant experienced at or in relation to the hearing. Some of these points may be relevant to the resolution of the appeal but they are not relevant to the present applications. I will only comment on those which may have relevance to these applications. Point 8 was that from 25 September 2005 to 19 April 2006 the appellant gave “all the important documents” to his solicitor but “he choose not to presented at the hearing instead he kept it in his office [sic]”. Point 9 asserted the night before the hearing the appellant’s solicitor received another 600 documents from the respondent to increase the number of documents in his office to 925, but he did not have any time for research or preparation. It was also asserted in point 11 that the appellant’s solicitor did not do his job properly in for example not giving enough time to identifying the “forge [sic] and fabricated documents”.
28 Point 14 was that the appellant was sitting in the back of the court with no files to check what people were talking about and watching the principal “and his team and the two people from the Department of Education when they controlled the hearing completely by fabricated stories and 600 [documents]”. There was then listed the following division of the documents: 113 out of 600 or 18.8% of letters, emails, faxes and “fabricated stories just to prove I am a mental person”; 284 out of 600 or 47.3% they “ignored all because they were against them”; 162 out of 600 or 27% “I didn’t see them before or during the hearing…”; 39 out of 600 or 6.5% “at the hearing they mentioned about the page number only without any research (Transcript page 161,151,135,184.......)” (sic, T105, 99, 89 and 120 of new transcript). Discussion of these points will occur as part of my final analysis of the application to receive additional documents.
29 Point 12 was that the appellant’s solicitor was not ready to stop the extensive body language between the respondent’s advocate and the witnesses. It was submitted he could not control them because he found out the limit of his power when the “principal’s wife” (Mrs Pilkington) rudely stuck her tongue out at him. Point 15 asserted the respondent’s advocate helped his witnesses during the hearing by giving them answers by body language. These points will be covered by my analysis of the application to view the video record.

(c) First Analysis of Documents
30 This submitted the documents in exhibit R1 were not “checked” in the hearing and were ignored because they were letters, messages, emails, general information and “fabricated stories” but nothing relating to the “appellant’s performance”. It was asserted a named employee of the respondent fitted all of the documents in a file “to make them bigger”. It was said that some of the people had said they rang or met with the appellant but he had not met with them, known them or even talked to them on the telephone. It was asserted that such untrue allegations occurred in 113 out of the 600 pages of documents or 18.8%. A table was then set out showing the page numbers where the document was located, the number of pages and a summary. In my opinion this document is not of itself relevant to these applications because it does not provide any reasons why the Full Bench ought to receive the additional documents or view the video record of proceedings.

(d) Second Analysis of Documents
31 The second analysis of exhibit R1 asserted that 284 documents out of 600 or 47.3% were ignored because these documents were “against them”. A table of the same type referred to in the previous paragraph was then set out. In the summary a number of these documents were referred to as being “forged” or “fabricated”. The table does not of itself contain submissions relevant to the application to receive additional documents, save and except where any additional documents may support assertions of fabrication, forgery or have some potential impact upon the cogency of the documents referred to in the table. This will be later considered.

(e) Third Analysis of Documents
32 The third analysis of exhibit R1 asserted only 39 out of the 600 pages of documents or 6.5% were referred to at the hearing. The documents referred to by the appellant’s counsel were asserted to be only 11 pages out of 600 which was 1.8%. A table set out the document number, who referred to it, the relevant page of the transcript, whether the document had been “checked” and a summary of what had occurred. Again the contents of this table do not themselves assist the application to put additional documents before the Full Bench. They may be relevant to the hearing of the substantive appeal.

(f) List of Documents Not Seen
33 This submission listed 162 pages of documents in exhibit R1 or 27% which the appellant said he had not seen until the hearing. The appellant said his solicitor got them the night before the hearing and they were generally ignored. A table set out the document number, the number of pages and an assertion that except in four occasions each document was not seen until after the hearing; and in those four occasions a slight variation of this. I will consider this submission when analysing the application to receive additional documents.
34 I will refer to the appellant’s oral submissions when later analysing the applications.

“Additional” Documents Already Included in Exhibit R1
35 It emerged during the hearing of the application that a number of the “additional documents” were included in exhibit R1 before the Commission.
36 Set out below is a table of these documents showing the number and page of the appellant’s document and the page number of exhibit R1 where the same document appears:

Appellant’s document
Page number of same document in exhibit R1
3 (3)
293
4 (4)
295
6 (6)
301
12 (12-13)
269
13 (14)
266
17 (18)
353
20 (22-24)
225
21 (25)
432
27 (31-35)
322
28 (36-38)
332
37 (64)
379
38 (70-71)
346
40 (77-78)
312
47 (96)
318
70 (149)
410
71 (150-152)
332
73 (155-163)
271
75 (166)
170
77 (168)
212
78 (169)
222
97 (197)
268
108 (234)
409
111 (237)
241
117 (265)
301
118 (266)
327
120 (268)
338
121 (269)
331
126 (274)
300
135 (284)
253
138 (289)
467
139 (290)
466
144 (295)
216
166 (325)
516
170 (331)
426

37 These documents are of course not additional documents and do not need to be considered for the purpose for deciding the present application.

Duplicated “Additional Documents”
38 Some of the additional documents filed by the appellant were duplicated. These were the documents numbered 16 and 119; 24 and 148; 28 and 71; 50 and 69; 87, 92 and 108; 137 and 143; 158 and 164.
39 Of course only one of the documents in the duplicate sets is an “additional document”.

The Respondent’s Position
40 The respondent opposed the applications, although as I will later set out, the issue of the errors in the transcript was resolved during and after the hearing of the applications. The basis of the respondent’s opposition was summarised in outlines of submissions which were filed and which I will now summarise.

The Respondent’s Submissions about the Additional Documents
41 The respondent relied upon s49(4)(a) of the Act which provides that an appeal to the Full Bench “shall be heard and determined on the evidence and matters raised in the proceedings before the Commission”. Despite the breadth of the words of the subsection, the respondent accepted the Full Bench had decided there was a discretion to receive additional evidence within strict confines. The respondent cited Federated Clerks’ Union Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040, where at 3041 the Full Bench said:
“Fresh evidence which is admissible on appeal is evidence which was not available to the Appellant at the time of the trial and which reasonable diligence in the preparation of the case could not have made available.
Secondly, the evidence must be such that it would have had an important influence on the result of the trial, and it must be credible, but not necessarily beyond controversy [see Ventura v. Sustek (1976) 14 SASR 395, Orr v. Holmes 76 CLR 632 and Bristow Helicopters v. Global Marine Drilling Co (1981) WAR 108].”

42 The respondent relied upon the approval of this passage in Full Bench decisions such as McCarthy v Sir Charles Gairdner Hospital (2004) 84 WAIG 1304 and Hanssen Pty Ltd v Construction, Forestry, Mining and Energy Union (Western Australian Branch) (2004) 84 WAIG 694.
43 It was submitted the documents which the appellant now wanted to rely upon did not fit the criteria specified in George Moss. This was because the evidence could have easily been made available with “reasonable diligence in the preparation of” the appellant’s case. Most of the documents were given by the appellant to his counsel but then not put before the Commission. Additionally, the respondent rejected any assertion that the documents tendered at the hearing were anything other than the original, “unadulterated versions of those documents”. The respondent submitted that before the hearing the appellant’s solicitors and counsel were provided with copies of the documents in exhibit R1 and no objection was made to their tender during the hearing.
44 It was submitted that any issue about whether the documents before the Commission were genuine ought to have been made at first instance. This point was made about only one document, as later set out. The respondent relied upon University of Wollongong and Others v Metwally (No. 2) (1985) 59 ALJR 481; 60 ALR 68 and Coulton v Holcombe (1986) 162 CLR 1 as authority for the proposition that a party is bound by the conduct of their case at first instance. Reference was also made to the application of this principle by the Full Bench in Hanssen at [191].

The Respondent’s Submissions about Viewing the Video Record of Proceedings
45 The respondent denied any suggestion that their advocate acted in any way inappropriately at the hearing. It was also submitted that if the appellant had any concern about this it should have been raised at the time and argued at first instance. It was again submitted the appellant was bound by the conduct of his case and could not now seek to have this matter dealt with on appeal to the Full Bench.
46 The respondent accepted that the Full Federal Court in Appellant WADC of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 298 reviewed the transcript and tape recording of proceedings before both the Refugee Review Tribunal and the primary judge to assess claims made by the appellant about how they were conducted. The respondent accepted that although the Full Bench did not discuss the issue of whether or not its role extended to reviewing the transcript and tape recordings of the earlier hearings, it proceeded on the basis that there was no reason why it could not do so. In effect however the respondent submitted that the issue did not need to be further considered in the present case because the appellant was, as already referred to, bound by the way in which he conducted his case at first instance.

Legal Principles Relevant to Both Applications
(a) Appellant Bound by the Conduct of his Counsel
47 As I have set out, the appellant was represented by counsel at the hearing before the Commission at first instance. Section 31(3) of the Act provides:
“(3) A person or body appearing by a legal practitioner or agent is bound by the acts of that legal practitioner or agent.”

48 This means that the actions of the appellant’s counsel at the hearing before the Commission at first instance as his representative are deemed to be the acts of the appellant. This has the effect that even if the appellant may have grounds for complaint against his counsel (as to which no opinion can be expressed by the Full Bench) it is not something which can assist his appeal. This principle was applied by the Full Bench in Shortland v Lombardi Nominees Pty Ltd trading as Howard Porter (2007) 87 WAIG 1158 at [20] and [52].

(b) Appellant Bound by Case Presented at First Instance
49 This is to some extent linked to the impact of s31(3) of the Act. It is a general principle that ordinarily a party is bound by the way in which they conduct their case at first instance. The principle was explained in the High Court decisions of Metwally and Coulton, relied on by the respondent and cited above.
50 The principle was referred to in Kershaw v Sunvalley Australia Pty Ltd (2007) 87 WAIG 1169 at [44]-[47]. I there quoted from the comprehensive summary of the relevant principles by the Full Federal Court in Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 at [16]-[19]. That discussion was in the context of a ground of appeal raising an issue which was not argued at first instance. The following points were made:
(i) Where the issue could possibly have been opposed by the other party calling evidence at first instance or conducting their case differently the appellant will not be permitted to rely on it on appeal.
(ii) Where there is no dispute about the facts in the appeal, or the point is one of construction or law, then the appeal court can allow it to be argued if it is expedient and in the interest of justice to do so.
(iii) There is a public interest in ensuring the finality of litigation.
(iv) The parties being bound by the courses they deliberately choose at trial reduces unnecessary litigation and maintains “fair play”.
(v) If these principles did not apply “the main arena for settlement of disputes” would move from courts at first instance to an appellate court. First instance hearings would be reduced to little more than a “preliminary skirmish” (see also Coulton at 7).
(vi) Any tendency to treat trials in that way should be discouraged.

51 These comments increase the difficulty of the appellant persuading the Full Bench that it ought to hear the appeal on the basis of grounds, arguments and evidence, including documents not before the Commission at first instance.

(c) Section 49(4) of the Act and Restrictions Upon Receipt of Additional Evidence
52 I have already referred to and quoted from s49(4)(a) of the Act in the context of summarising the respondent’s outline of submissions. I have also set out the approach of the Full Bench to this subsection in the past.
53 In George Moss, Sharkey P for the Full Bench at page 3041 cited and quoted from Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852. There Kennedy J at 855 referred to subsection 49(4) and said that the legislature “has not elected to have the Full Bench deal with a matter as if it were hearing the initial application to the Commissioner”. Olney J at 857 said that “the option open to the Commission at first instance to ‘inform itself on any matter in such a way as it thinks fit’ (s26(1)(b)) is not open to it when sitting as at Full Bench on appeal”.
54 In his reasons, Sharkey P said at 3042 that the “discretion to admit fresh evidence on appeal is not specifically excluded” in s49(4). The Full Bench therefore endorsed the fresh evidence “rule” referred to at page 3041 and quoted earlier.
55 In Hanssen a submission was made that the Full Bench should reconsider the principle in George Moss. Sharkey P on behalf of the Full Bench did so but concluded at [170] that George Moss should continue to be followed. As indicated the respondent did not on this occasion seek any review of the decision of George Moss.
56 In Devereaux-Warnes v Hall [2006] WASCA 268, Martin CJ stressed the importance of limiting the receipt of additional evidence on appeal when the Chief Justice said at [2]:
“… it is a mistake in principle to consider an appeal as merely another step in a serial process of litigation. There is a very strong public interest in the finality of litigation (see Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672 at 684; State Railway Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29 at 38; Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215 at 275). This provides a powerful reason in public policy for strictly confining the circumstances in which a party will be permitted on appeal to augment the evidence led at trial. It is well established that the circumstances in which that course will be permitted are rare and exceptional.”

57 Also in Devereaux-Warnes, Buss JA, with whom Martin CJ and Roberts-Smith JA agreed, reviewed the basis on which the Court of Appeal could receive additional evidence. His Honour at ([25] - [26]) said that if it was in “the interests of justice” to do so the Court could receive evidence which could “have been obtained with reasonable diligence for use at the trial”. His Honour cited authorities of the Court of Appeal of New South Wales as well as earlier reasons of his own in support of the point. I will refer to it again later.

Resolution of Transcript Errors Issue
58 I will deal with this first given it has been resolved.
59 At the hearing of the applications it became apparent that there was little in dispute about this issue. After the hearing the respondent advised the Full Bench it was prepared to accept that in five of the six instances asserted by the appellant the transcript was in error. The sixth instance involved a place where the appellant submitted the transcript was confusing because it had omitted to put the name of the Commissioner in front of a question which had been asked. It was explained to the appellant that the way in which the transcript was typed was in the usual form. The Full Bench and the respondent both accepted the appellant’s submission that the question had been asked by the Commissioner.
60 There is therefore no issue for the Full Bench to decide on this topic.

Context of Application to the Full Bench to Consider Additional Documents
61 To put the application into context it is necessary to set out the names of the witnesses who gave evidence, relevant events, what happened at the hearing about the receipt of documents as exhibits and the reasons for decision of the Commission.

(a) Witnesses
62 The appellant was the only witness who gave evidence in support of his case. The respondent called the following witnesses:
(i) Mr Kevin Pilkington, Principal of John Willcock College, Geraldton.
(ii) Mrs Kathy Pilkington, Deputy Principal at Geraldton Senior College and Deputy Principal at John Willcock College in 2004. (Mr and Mrs Pilkington were married).
(iii) Ms Jillian Stewart, Head of Mathematics Department at John Willcock College.
(iv) Ms Vicki Jack, at the relevant time the Manager of Operations at the Mid-West District Education Office, Department of Education and currently District Director of the Pilbara Education District.
(v) Ms Meredyth McLarty, at the relevant time the Acting Principal of Pinjarra Senior High School.
(vi) Mr Peter Burgess, investigator of the appellant’s alleged substandard performance.

(b) Chronology of Events
63 From the reasons for decision of the Commissioner the following dates are relevant:

Late 1990
The appellant emigrated to Australia from Egypt. He had obtained a Bachelor of Science and Education in Cairo and taught in Egypt for a number of years.
1999
The appellant taught at Mount Magnet District High School for approximately 6 months.
2003
The appellant taught at Katanning Senior High School during terms 3 and 4.
2004
At the commencement of the school year the appellant was employed full-time in the mathematics department at John Willcock College, Geraldton.
20 May 2004
The appellant was formally advised by Mr K Pilkington that he was not performing to a satisfactory level and was then subject to two Performance Improvement Plans (PIPs).
14 June – 28 July 2004
The first PIP took place.
30 July – 27 August 2004
The second PIP took place.
20 August 2004
The appellant became unwell during the last week of the second PIP.
31 August 2004
The appellant returned to John Willcock College and was involved in an incident which led to him being directed to attend the Department of Education and Training (DET) District office. The appellant did not return to the College afterwards.
26 April 2005
The appellant commenced teaching at Pinjarra Senior High School.
5 July 2005
The appellant was advised the respondent intended to terminate his employment but was given the opportunity to provide written submissions about this intended action.
9 August 2005
The appellant’s solicitor made written submissions to the respondent.
22 September 2005
The appellant was terminated from his employment as a teacher by the respondent.

(c) Documentary Exhibits at First Instance
64 On the first morning of the hearing on 20 April 2006 the appellant’s counsel said that he had been provided by the respondent with two folders of documents containing “about 600 pages”. Counsel then said the appellant did not “have any further documents that we’ll be referring to” (T6). The respondent’s advocate then explained some colour co-ordination of the files of documents. They were then received as exhibit R1 (T6). The appellant’s counsel said the bundle of documents had been provided “yesterday” and that he had the chance of briefly going through all of them. He said he did not “think that there is anything further that the [appellant] wishes to rely on but, because of the timing of the provision of the documents it may take me a while to go through the examination-in-chief” (T6-7). The appellant then gave evidence. The appellant’s examination-in-chief, cross-examination and re-examination were concluded that day. No other documents were received into evidence that day.
65 The respondent’s witnesses gave evidence the next day. During their examination in chief, cross-examination and re-examination no additional documents were tendered by either party.
66 At the conclusion of the evidence there was discussion between the Commissioner and the appellant’s counsel about the documents in exhibit R1. The Commissioner asked counsel whether he took issue with any of the documents (T157). Reference was made to the lack of any objection at the commencement of the hearing. Reference was also made to the evidence of the appellant that he did not sign a document said to include his signature (see T157; the evidence was at T61 and T71). This document was a lesson plan dated 3 August 2004 at page 347 of exhibit R1. After some discussion the appellant’s counsel said he did not have the original of the document (T159). There was then discussion about the appellant’s counsel being able to review the original of that lesson plan which could be discussed between advocates after the adjournment for the preparation of written submissions. (The issue was not raised in the written closing submissions).
67 The appellant’s counsel then informed the Commissioner there was “one further document that was referred to in [the appellant’s] evidence-in-chief which we weren’t able to locate … in the bundle of documents that have been provided” (T159). Counsel described the document and requested it be received. This was not objected to by the respondent’s advocate and the document became exhibit A1. This was a series of notes written by a Ms Ventouras at Pinjarra Senior High School covering the period 27 April 2005 to 29 April 2005.
68 Just before the proceedings were adjourned there was discussion about a handwritten note by a student called “Holly”. The appellant’s counsel made a deliberate decision not to tender this document (T161). This was because he said the evidence of the appellant which the note supported was already sufficiently supported by the document at exhibit R1 pages 436 - 437 which was another handwritten note by “Holly” dated 7 June 2004.

(d) Reasons for Decision
69 In her reasons for decision the Commissioner summarised the evidence given by each of the witnesses at the hearing. It is not necessary to discuss this in deciding the present applications. The Commissioner also set out a summary of the submissions made by both the appellant and the respondent. Again it is unnecessary to set this out.
70 The Commissioner said at [106] that she had “concerns about the evidence given by the” appellant who “was not convincing when he claimed that the support given to him by his line managers to assist him with his performance was inappropriate and that his performance was consistently being unfairly criticised”. The Commissioner said the “weight of evidence” was against the appellant’s claim.
71 The Commissioner also said she doubted the appellant’s evidence that “he was denied access to resources to effectively teach his classes”. The Commissioner referred to assertions by the appellant about being poorly treated by his line managers but said there was no evidence to “corroborate these claims”. The Commissioner said the appellant was deliberately not forthcoming when giving evidence about interactions with Mr Pilkington on 31 August 2004. The Commissioner also found the appellant’s claims that his teaching performance at Pinjarra Senior High School was excellent was not supported by documents relevant to the period he taught at that school.
72 The Commissioner also said she doubted a claim by the appellant that he did not sign a lesson plan dated 3 August 2004 as his signature on the document was similar to his signature on other relevant documents. The Commissioner said that in the circumstances “I doubt the veracity of the evidence given by” the appellant.
73 In contrast at [107] the Commissioner found all of the evidence by the respondent’s witnesses honest and given to the best of their recollection. The Commissioner also commented on the significant amount of documentary evidence which supported their testimony and said she had no hesitation in accepting their evidence. At [108] the Commissioner said that whenever there was any inconsistency in the evidence given by the appellant and the respondent’s witnesses she preferred the evidence given by the latter.
74 The Commissioner then referred to some legal issues before returning to the facts. The Commissioner made a finding that it was appropriate for the appellant’s line managers at John Willcock College to decide his performance was substandard. As at 31 August 2004 it was open to Mr Pilkington to refer the issue to the respondent for further consideration ([118]). The Commissioner also said the respondent dealt with issues about the appellant’s substandard performance in line with the requirements under the Public Sector Management Act 1994 (WA) (the PSMA) and reviewed relevant documents including a report completed by Mr Burgess. The respondent therefore took into account “relevant considerations” before determining it was appropriate to terminate the appellant’s employment due to substandard performance.
75 The Commissioner made a finding that the assistance available to the appellant during the PIPs formed part of a co-ordinated and systematic process designed in collaboration with the appellant to aid his improvement in required areas and that Mrs Pilkington, Ms Stewart and Ms Jack as well as a Ms Stone assisted with this ([126]).
76 The Commissioner found that although the time period for the second PIP was not completed due to the appellant’s ill health, he had already been given sufficient time to improve his performance so that he was not disadvantaged. The Commissioner found that the appellant had made little if any progress in the required areas ([127]).
77 The Commissioner said she accepted the evidence of Mr Pilkington that the appellant returned to school on 31 August 2004 after being on sick leave for a week following an altercation with a parent, and became upset when told of a complaint made about him by a fellow mathematics teacher, Mr Molina. The Commissioner found the appellant left his classroom and went to Mr Pilkington’s office and abused and threatened him. The Commissioner found Ms Jack overheard the altercation and telephoned the District Director who then contacted Mr Pilkington and told him to stand the appellant down from teaching at the College with immediate effect and to escort him off the premises.
78 The Commissioner found the appellant was offered procedural fairness during the PIPs. At [129] the Commissioner rejected the appellant’s claim that “his line managers at the College conspired against him to ensure that he was unable to perform successfully at the College and that as a result he had no chance of convincing his line managers that his performance could improve” ([129]). The Commissioner went on to say that she found no evidence of conspiracies or collusion between Mr and Mrs Pilkington and between Mrs Pilkington and Ms Stewart.
79 The Commissioner rejected the appellant’s claim that the College should have arranged for him to attend a professional development course to improve his English literacy ([131]). The Commissioner also rejected a claim that the appellant’s line managers including Mr Pilkington solicited complaints from parents ([132]).
80 The Commissioner referred to the investigation undertaken by Mr Burgess under s79(5) of the PSMA. She accepted that “Mr Burgess interviewed the [appellant] using a fair process and that after the interview the [appellant] was given a copy of his statement to review and to make any alterations” ([138]). The Commissioner mentioned that Mr Burgess did not provide the appellant with background documents given to the former by the respondent, but the issue was not raised at the time by the appellant. In addition, the appellant did not contest an assertion by the respondent that the documents were sent to him in December 2004. The Commissioner said she had some difficulty with witness statements of people Mr Burgess interviewed not being provided to the appellant but said that, as these people had given evidence, the “issue has since been overtaken” ([138]).
81 The Commissioner said that it was open to the respondent after receiving the appellant’s submissions provided on 9 August 2005 to decide he should be terminated as his performance at the College had been substandard ([139]). The Commissioner also found it would have been open to the respondent to terminate the appellant’s employment for gross misconduct because of the way he abused and threatened Mr Pilkington, using “foul language”, on 31 August 2004 ([139]).
82 The Commissioner then concluded that the application should be dismissed.

Determination of Additional Documents Application
83 The documents filed by the appellant numbered and paginated 1 and 2 are not evidentiary documents in addition to those before the Commission at first instance. Accordingly they do not need to be considered as part of this application

(a) Documents Available For Use at First Instance
84 I have earlier referred to the legal principles about the appellant being bound by the conduct of his counsel at first instance and by the case argued at first instance. I have also set out the limitations within which the Full Bench has decided it can receive additional documents on appeal.
85 All of the additional documents, except for a few which I will later identify, were in existence and available to the appellant and his counsel to use at the hearing before the Commission. In arguing the application before the Full Bench, the appellant said there were three files containing 925 pages of documents which were with his solicitor from 25 September 2005 until 20 February 2006 (T58). These files included both documents contained in exhibit R1 and additional ones. I asked the appellant whether his “complaint essentially is that there were, you say additional documents that you gave to your solicitor that he did not provide to the Commission”. The appellant said in reply: “that’s right” (T58-59).
86 This was consistent with paragraphs 1 and 2 of the appellant’s statutory declaration and points 8 and 9 of the “Submissions on the basis of the Commissioner’s Decision”.
87 In my opinion this concession is very significant. Compounding that is what happened at the hearing about documentary exhibits as I have earlier described.

(b) Documents in Existence Before the Hearing Should Not be Received by the Full Bench
88 As I have said, all of the additional documents that were in existence before the hearing were available for the use of the appellant and/or his counsel. This is because they were in the possession of one and/or the other. It seems that during the hearing they were either with the appellant’s counsel or at the offices of his solicitor. They are not documents which were unable, with reasonable diligence, to be obtained and provided to the Commission at first instance. They cannot therefore be received according to the George Moss test.
89 The appellant may complain that these documents were available to his counsel and he did not make use of them. As set out earlier however the appellant is bound by the conduct of his counsel and the case presented at first instance. I do not believe that this is a situation where, given the legal principles earlier referred to, the Full Bench can receive the documents on the basis of an asserted error by counsel.
90 To do so would run counter to the principles based upon the decision of the Full Federal Court in Iyer. In particular, if the additional documents had been before the Commission at first instance, the respondent may well have adduced evidence or documents in response or argued additional or different points. As stated in Iyer the Full Bench cannot tolerate the hearing at first instance simply being a “preliminary skirmish”. It would fit this character if the additional documents, evidence in response from the respondent and submissions about this evidence were heard and adjudicated upon appeal.
91 The appellant also provided orally to the Full Bench additional information and arguments about documents, some of which were not before the Commission at first instance. In my opinion for similar reasons these also cannot be taken into account by the Full Bench in deciding the appeal.

(c) Interests of Justice Do Not Support Application
92 I earlier referred to the observation by Buss JA in Devereaux-Warnes that additional evidence might be received on appeal if it was in the “interests of justice” to do so. It is not necessary in this appeal to decide if this applies to the Full Bench. This is because even if it did so I see no reason why in the circumstances it would be in the “interests of justice” to receive the additional documents. The reasons for this overlap with those I have already set out, but for the sake of clarity they are:
(i) The appellant was represented by counsel at the hearing.
(ii) Many of the documents were in fact generated by the appellant.
(iii) The additional documents were known to and in the possession of the appellant and/or his counsel prior to the hearing.
(iv) If counsel made the deliberate choice not to put the additional documents before the Commission or erred in not considering whether to do so, the appellant is, as stated in s31(3) of the Act, bound by the conduct of his counsel.
(v) To permit the receipt of the additional documents would be unfair to the respondent unless they had the opportunity to adduce evidence and make submissions about them. It is not appropriate in this case to allow the Full Bench to become the forum for this type of hearing.
(vi) The content of s49(4)(a) of the Act, at the very least, displays a legislative intention that ordinarily the Full Bench should not receive additional documents.

(d) The Appellant’s Oral Submissions
93 I would also add, for the sake of completeness, that at the hearing of the application I carefully listened to the lengthy argument of the appellant about the additional documents and have read the transcript of the hearing and the written submissions of the appellant. In my opinion the additional documents do not individually or in combination have the strength to lead to a conclusion that there is a reasonable possibility the Commissioner would have made a different decision if they were before her.
94 I will refer to some examples to illustrate the point.

(e) Examples of Additional Documents Submissions
95 Firstly - the appellant took the Full Bench to additional document 23 (page 27) which was a letter from Mr Ryan of the DET to Mr Kelly, the General Secretary of the AEU. This letter was about a letter from Mr Kelly to Mr Ryan dated 5 December 2001 which was exhibit R1 page 508. The appellant asserted exhibit R1 page 508 contained incorrect information which was submitted by Mr Kelly “just to support the Department of Education” (T71). The Full Bench is not in a position to decide whether or not this is so. It is sufficient to say that additional document 23 was written in 2001 about events which occurred in 1999. It does not bear any apparent relationship to what happened in 2004 and 2005 and the appellant’s termination from employment in September 2005 for substandard teaching performance.
96 Secondly - the appellant referred to additional document 156 (page 313) which was a memorandum to the appellant from Mrs Pilkington dated 3 August 2004. This was about a meeting the appellant wanted to have with Ms Mary Franklyn from the SSTU and the time during the day when the meeting could take place. The appellant also referred to additional document 157 (page 314) which was a facsimile from Ms Franklyn to the appellant dated 2 August 2004. She there said she was available to meet with the appellant between 9:30am – 11:45am (excluding morning recess) on Thursday of that week. The appellant also referred to his evidence before the Commission at first instance where he explained how Mrs Pilkington did not allow him adequate time to meet with Ms Franklyn (T32-33). This was contrasted with the evidence of Mrs Pilkington (T107). In particular the appellant referred to T108 where Mrs Pilkington said the appellant had 106 minutes to meet with Ms Franklyn.
97 The appellant submitted the additional documents showed the evidence of Mrs Pilkington was in error and his evidence that he had between 30-40 minutes to meet with Ms Franklyn ought to have been accepted. The appellant submitted this was important given the Commissioner found she accepted the respondent’s witnesses’ evidence in preference to his. The appellant agreed when I put it to him that in effect he was saying that if the Commissioner had been aware of this information she may have made different findings about credibility (T74). With respect, having regard to all of the evidence before the Commission at first instance and her reasons for decision, I cannot accept that this is a reasonable possibility. This is because the findings of the Commissioner were based on the totality of a large amount of evidence and not an isolated circumstance.
98 Thirdly - the appellant referred to additional document 141 (page 291) which was a note by another teacher, Ms Carey, about a student. The appellant said the student was “used against him” in the sense that lessons were observed when the student “made trouble”. The appellant asserted however that additional document 141 and others showed the student had family problems and no one could control him at the school (T80). In my opinion the additional documents are not capable of proving this or undermining the findings made by the Commissioner about the appellant’s substandard teaching and termination.
99 Fourthly - the report of Mr Burgess, the investigator, was within exhibit R1 at pages 45-158. The appellant asserted to the Full Bench that he had an interview with Mr Burgess. At the end of the interview Mr Burgess gave the appellant a “floppy disk” with his (Mr Burgess’) summary of what had happened at the interview. The appellant asserted to the Full Bench that Mr Burgess said to him he could take this home, change it in any way he wanted and then give it back (T103). The appellant said he did so and prepared the document which is now additional document 107. The appellant said Mr Burgess’ report in exhibit R1 at pages 45ff removed those bits which the appellant had included as tracked changes in additional document 107. The appellant confirmed however that additional document 107 was with his solicitor before the hearing (T103).
100 Additionally, at the hearing the appellant admitted he had seen the report of Mr Burgess at T53 and T54, but did not then say anything about additional document 107. This was his opportunity to do; the appeal is not. In addition, Mr Burgess could have been but was not cross-examined on this issue (see T151-153). For these reasons it is not “just” to permit additional document 107 to be received by the Full Bench.
101 Fifthly - I have earlier referred to the appellant’s evidence at first instance that he had not signed the lesson plan dated 3 August 2004, which was at page 347 of exhibit R1 (see T61 and 71). I have also described the discussion about this between counsel and the Commissioner at the conclusion of the hearing. I have also set out the Commissioner’s finding on this issue.
102 This was the only document at the hearing which was disputed in this way. At the hearing of the applications the appellant took the Full Bench to “additional document” 38 at page 70. This was a copy of the lesson plan dated 3 August 2004. It was as set out in the earlier table the same document as exhibit R1 pages 346-347. On both the second but not the first page had a signature purporting to be the appellants. As this is not truly an additional document it need be considered no further.
103 At the hearing of the applications however the appellant went further and said that any signatures on lesson plans purporting to be his, were forgeries (T90). The appellant took the Full Bench to a lesson plan dated 3 June 2004 which had signatures on exhibit R1 pages 374 and 376. This was compared to pages 57 and 59 of additional document 36 which were a copy of the same pages of the lesson plan without the signatures. Similarly, exhibit R1 page 433 was a signed lesson plan dated 16 June 2004 compared to additional document 42 (page 83) which was an unsigned copy. Exhibit R1 page 308 was a “Self Evaluation” apparently signed by the appellant and dated 17 August 2004, whereas additional document 48 (page 97) was in a different form.
104 With respect to these submissions it is sufficient to reiterate that all of these documents could have been used by the appellant and/or his counsel at first instance but were not; the appellant did not then give evidence about any forged signatures on them; and the copies of the documents without the signatures do not of themselves establish the appellant did not sign the corresponding documents in exhibit R1. I see no injustice in the Full Bench not receiving these documents on appeal.
105 Sixthly – the appellant asserted some of the additional documents demonstrated that those who were reviewing his teaching were not capable of doing so. I do not accept these documents tend to establish this. Also the documents could have been used to try and achieve this purpose at first instance but were not.
106 Seventhly - the appellant referred to additional document page 213 which was a list of questions he prepared for his counsel to ask at the hearing but did not. This document does not pass the George Moss test and there is no good reason why the Full Bench should receive it on the appeal.
107 In my opinion these examples are sufficient to illustrate why, having considered the submissions made by the appellant, I am not convinced that it would be “just” for the Full Bench to receive the additional documents which existed before the hearing.
108 As set out earlier the appellant submits there were many documents in exhibit R1 he did not see before or during the hearing. This does not however assist his application for two reasons. Firstly his counsel received these documents before the hearing, said he had looked at them did not object to their admission as exhibits and could have but did not ask the appellant about them. Secondly the appellant could have asked his counsel to look at the documents during suitable breaks in the hearing, during the day or overnight.

(f) Documents Created After the Hearing at First Instance
109 The following documents came into existence after the decision by the Commission and therefore need to be separately considered.
110 Additional document 24 (page 28) is a letter from Dr Crawford To Whom It May Concern dated 11 August 2007. This said the appellant had been a patient of the Joondalup Drive Medical Centre since May 1999 and Dr Crawford had been his treating practitioner. Dr Crawford said the appellant had no illness likely to affect his ability in his work as a mathematics teacher. Dr Crawford said in the letter that the appellant had “mentioned to me that his manager at work said to staff at the John Willcock College in Geraldton in 2004 that [the appellant] has heart and kidney problems. I can confirm that [the appellant] has fully functional heart and kidneys”.
111 Whilst this document only came into existence after the hearing, it is about facts occurring before then and accordingly evidence of this could have been given to the Commission. In addition the issue referred to in the letter was not important to the decision of the respondent to terminate the appellant’s employment or the dismissal of the application by the Commission. (The same document was number 149 at page 302 of the additional documents).
112 Additional document 150 (pages 306 – 307) is a letter from the appellant to Mr Kelly of the SSTU. In the letter the appellant describes some of the difficulties he had with his representation by them. If this was relevant to the hearing the evidence could have been adduced by the appellant. In my opinion however the issue was not material to either the decision made by the respondent or the Commission at first instance.
113 Additional document 152 (pages 309 – 310) is a letter from the appellant to Ms Hopgood, the “Federal Secretary” (presumably of the AEU) to complain about officials of the SSTU. This letter falls into the same category as the previous one and should not be received by the Full Bench. Document 153 (page 311) is another letter from the appellant to Ms Hopgood dated 8 August 2007 which should not be received for the same reason.
114 Additional document 158 (page 316) is a letter dated 10 August 2007 from the appellant to Ms Aitken at Pinjarra Senior High School requesting a copy of a letter she had previously given to the appellant and his response. Also requested was a letter confirming that when he was at Pinjarra Senior High School he taught years 9 to 12. Again the evidence referred to in this document could have been given at first instance and the contents are not of importance to the decisions of the respondent or the Commission.
115 Additional document 159 (page 317) is a letter from the appellant to Ms Aitken dated 16 August 2007. For the same reasons as just stated this document should not be received by the Full Bench. It is a letter about earlier correspondence with Ms Aitken, a comment attributed to Ms Aitken about the appellant’s file of work and the appellant’s version of events when he was at Pinjarra Senior High School.
116 Additional document 162 (page 321) is a letter from Ms Aitken dated 14 August 2007 setting out the dates when the appellant was employed at Pinjarra Senior High School. This was not a contested issue in the hearing at first instance and the document should not be received by the Full Bench.
117 Additional document 163 (page 322) is a facsimile from Ms Aitken to the appellant dated 13 August 2007 in reply to his facsimile dated 10 August 2007. For the same reasons as earlier expressed the document should not be received by the Full Bench.
118 Additional document 171 (page 332) is an undated handwritten form letter “To Whom It May Concern”. It refers to unnamed people (designated by crosses) having written a letter supporting of the appellant but feeling that repercussions could affect their current or future employment. The contents of the letter are not relevant to the appeal.
119 Additional document 173 (page 334) is a letter from the appellant to Mr Shane Hill MLA dated 9 July 2007. The letter refers to Mr Hill’s letter to Mr Baker dated 1 October 2004 which was part of exhibit R1. In the letter the appellant asserts the contents of Mr Hill’s letter were “mostly” fabricated. Although the appellant’s letter was written after the hearing and decision by the Commission, Mr Hill’s letter was in existence before the hearing and the appellant could have given evidence about it.
120 Additional document 184 (page 361) is a letter written by a teacher which is positive about the appellant’s work in 2004. (In a letter to the Commission the appellant requested that the teacher’s name not be published). Although the letter was written after the hearing its contents are not “fresh”. There is nothing before the Full Bench which suggests that either the teacher could not have given evidence at the hearing or at that time written a similar letter.
121 Additional documents 185-7 (pages 362-364) is a letter and two facsimile reports about the same, from the appellant to Mr Kelly of the SSTU requesting documents for the purpose of the present application. The letter is not relevant to the decision of the Commission or therefore the appeal.
122 Accordingly none of the documents which came into existence after the hearing ought to be received by the Full Bench as part of the appeal.

(g) Conclusion on Additional Documents Application
123 For the reasons I have set out the application to the Full Bench to consider additional documents should be dismissed.

Application to View Video Record of Proceedings
(a) Legal Principles
124 The principles set out earlier about the appellant being bound by his case at first instance were again relied upon by the respondent in answer to this application and in my opinion are applicable. As submitted by the respondent’s counsel, if there was inappropriate coaching of witnesses at first instance then the appellant and/or his counsel were able to observe this happening and it could have been brought it to the attention of the Commissioner. Additionally the appellant and/or his counsel could have requested the Commissioner at first instance to view the video record of proceedings.

(b) The Hearing at First Instance
125 There are some aspects of the hearing at first instance which are relevant. When Ms Jack was being cross-examined the following is recorded has having occurred:
“Now, did you have any contact ... you didn’t have any contact with Mr Michael before you got to school the first time you evaluated him?---As I mentioned previously, we had a telephone conversation.

Yes, okay. You don’t need to keep looking at Mr Barnes?---I don’t know where I’m supposed to – sorry.

You can look at me, I’m not going to – because it just creates the impression that you are trying - - -?---I’ll look at the Commissioner.

Excellent, thanks. Now, you had one telephone conversation and that was it?---That’s correct.” (T140-141)

126 Nothing further was made of this issue in cross-examination.
127 As mentioned earlier final written submissions were provided. Both parties also replied in writing to the submissions which the other had filed.
128 In the “Applicant’s Closing Submissions” filed on 5 May 2006, submissions were made about the credibility of witnesses based upon whether they “maintained good eye contact with the [appellant’s] representative”. The expression just quoted was an argument in support of the submission that Mr Pilkington was a “credible witness”. By contrast it was later said that: “Mrs Pilkington refused to maintain eye contact with the [appellant’s] representative”. It was said of Ms Jack that she “appeared evasive and often failed to make eye contact with the [appellant’s] representative during cross-examination, preferring to maintain eye contact with the respondent’s representative”. It was also submitted that “Ms Stewart appeared evasive and often failed to make eye contact with the [appellant’s] representative during cross-examination”.
129 The written submissions did not develop why the maintaining or not maintaining of eye contact with the “[appellant’s] representative” or looking at the respondent’s advocate when answering questions necessarily undermined credibility. Additionally, other than the episode I have earlier quoted involving Ms Jack, it was not put to any of the three witnesses referred to that they were not looking at the appellant’s counsel, that this affected their credibility or they were being coached. Indeed coaching was not raised at all at first instance.
130 In a document entitled “Response to Applicant’s Closing Submission” filed on 12 May 2006 the respondent submitted all witnesses “were advised that their evidence was to the Commissioner and hence no negative inference can be drawn from them engaging in eye contact with the Commissioner”. Whilst this point does not answer the submission made about Ms Jack maintaining eye contact with the respondent’s representative, it is illustrative of there being explanations for a witness not making eye contact with the person cross-examining them, which do not affect credibility.
131 The Commissioner did not specifically refer to these arguments in her reasons for decision.

(c) Analysis and Determination of Application
132 The submissions made by the appellant’s counsel at the hearing demonstrate that he observed where witnesses were looking and with whom they were making eye contact when they gave evidence. As mentioned earlier, he did not submit there was any coaching. It was open to him to request that the Commissioner view the video record of the proceedings to substantiate the points he did make; or to request to view the video record of proceedings himself and then provide the Commissioner with examples of when credibility was affected by where witnesses were looking.
133 I reiterate that the appellant is bound by the case argued at first instance. Coaching of witnesses could clearly have then been raised and submissions made about viewing the video record of proceedings. This did not occur and there is no good reason for the Full Bench to now view the video record.
134 The video recording of proceedings is a relatively new phenomenon. There are issues of some significance which arise both at first instance and on appeal. They include the circumstances in and purposes for which the video record should be viewed by decision-makers at first instance and the procedural fairness requirements which might follow. I also anticipate there will be a disinclination amongst appellate courts to readily accept applications to view video records of first instance proceedings. This is because of what is ordinarily the nature of an appellate jurisdiction. Relevant principles will need to be established. For present purposes however I think it is simply necessary to say is the Full Bench ought to be judicious in deciding whether to allow an application like the present and not lose sight of the legal principles I have earlier outlined.

(d) Conclusion of Application to View Video Record of Hearing
135 For the reasons I have set out the application of these principles in the present application leads to the conclusion that it should be dismissed.

Future Conduct of the Appeal
136 Although the two interlocutory applications should be dismissed, the appeal of course remains to be decided. There is however a lack of clarity about the grounds of appeal. As set out earlier grounds of appeal were included with the notice of appeal, but in the additional documents filed there is, as document number 1, a list of the reasons upon which the appellant wants the decision to be overturned.
137 In my opinion it is appropriate to now list another directions hearing to provide the appellant with the opportunity of providing a document which sets out the grounds which he would now like to argue to support the appeal. At that directions hearing the respondent will have the opportunity to make submissions about the grounds of appeal as then drafted.
138 At or after this directions hearing it will be appropriate to list the appeal for hearing.

Orders
139 At the present time the Full Bench should simply make the following orders:
(1) The appellant’s application to the Full Bench to consider new and additional material dated 27 August 2007 is dismissed.
(2) The appellant’s application to the Full Bench to listen to the audio record and view the video record of the proceedings at first instance dated 27 August 2007 is dismissed.


BEECH CC:
140 I have read in advance the Reasons for Decision of the Acting President and have nothing to add.


SCOTT C:
141 I have had the benefit of reading the draft Reasons for Decision of His Honour the Acting President. With respect, I agree with those Reasons and wish to add some comments.
142 As the Acting President noted, a party is bound by the conduct of his counsel (s31(3) Industrial Relations Act 1979) and by the case presented at first instance. If a party is not satisfied with the manner in which the legal practitioner represented him and conducted his case that is not a matter for an appeal. That is a matter for another place. If a party could seek to revisit the evidence presented and the conduct of the case on appeal by alleging that the case was not run as he would have wanted, this would turn the case at first instance into no more than a rehearsal (Kershaw v Sunvalley Australia Pty Ltd (2007) 87 WAIG 1169).
143 A good deal of the basis for the appellant’s applications dealt with by the Acting President’s Reasons seems to be his dissatisfaction with the way his case was conducted at first instance. He disagrees with his solicitor’s choice of working from the respondent’s Bundle of Documents; was concerned that he was sitting at the back of the court and was not able to check the documents as they were being dealt with; his solicitor did not make as much of, or the point that the appellant now makes about, the allegation of coaching of the respondent’s witnesses, and was not able to raise issues of so called forgery or fabrication. These are not matters for an appeal and an appeal is not merely an opportunity to run the case differently to the way it was done at first instance, in the hope of a different outcome. The matters raised in the applications are not for the Full Bench to remedy, if they require remedy. As noted above they may be for another place.
144 I too, would dismiss the applications.
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