WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2010 WAIRC 00242

DELIVERED : WEDNESDAY, 28 APRIL 2010

FILE NO. : FBA 2 OF 2010

Appellant

AND

Charles Henry Rosenthal

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Acting Senior Commissioner P E Scott

Citations : 2010 WAIRC 00006, 2010 WAIRC 00023

File No : U 10 of 2009, B 101 of 2009

CatchWords :  Industrial Law (WA) - Decision of Commission was a 'finding' under s 49(2a) of the Industrial Relations Act 1979 (WA) - what constitutes a 'decision' of the Commission considered - oral rulings not a decision within the meaning of s 49 of the Act - application to amend grounds of appeal - interlocutory order made - principles of case management considered - public interest requirement in s 49(2a) not satisfied - purpose of speaking to the minutes considered - application to amend dismissed - appeal dismissed - Industrial Relations Act 1979 (WA) s 22B, s 27(1)(ha), s 27(1)(hb), s 32(2), s 34, s 35, s 36, s 49, s 49(2a).

Result : Application to amend appeal dismissed and appeal dismissed.

Representation:

Appellant : Mr Tony Palermo (as agent)

Respondent : Ms A Bilich (of counsel)

Reasons for Decision

THE FULL BENCH:

Background

1          This appeal was heard on 22 April 2010.  At the conclusion of the hearing the parties were informed that the appeal and the application to amend the grounds of appeal would be dismissed.  The following paragraphs of these reasons for decision set out the reasons why we reached that decision.

The Grounds of Appeal

2          The appellant in the notice of appeal seeks to institute an appeal against the decision of the Commission given on 15 January 2010 in U 10 of 2009 and B 101 of 2009.  A 'decision' within the meaning of the Industrial Relations Act 1979 (WA) (the Act) was not given on that day but reasons for decision were delivered.  The 'decision' was given on 21 January 2010 in the form of an order.  However in the schedule to the notice of appeal the grounds of appeal make it clear the appeal is against the order made by the Commission on 21 January 2010.

3          The order made on 21 January 2010 was made for the purpose of limiting the period for presentation of the parties' respective cases pursuant to s 27(1)(ha) of the Act.  The order requires the parties present their witnesses and closing submissions within maximum periods. 

4          The order was made by the Commission after it had commenced the hearing of the substantive applications before the Commission.  The Acting Senior Commissioner in her reasons for decision said that she was concerned with the Commissioner's obligation to conduct hearings in an expeditious manner and do so in a manner which is fair to both sides.  Prior to making the order the Commission had taken five days of evidence.  The Acting Senior Commissioner took the view that it would be appropriate to determine the periods that are reasonably necessary for the fair and adequate presentation of the parties' respective cases to enable the hearing and determination of the applications to be completed.

5          The appellant seeks to appeal the order made on 21 January 2010 on grounds that he has not been afforded the right to be heard by the Commission in relation to the orders.

6          Prior to making the order on 21 January 2010 the Commission made an order on 5 November 2009 which also dealt with a number of interlocutory issues dealing with further and better particulars and other programming orders in respect of the identification of witnesses and programming the length of time for evidence to be completed and submissions.

Application to Amend the Grounds of Appeal

7          The appellant filed a supplementary appeal book on 23 February 2010 which contains an application to amend the grounds of appeal to add additional grounds of appeal.  In the application to amend the grounds of appeal the appellant seeks to add a number of grounds of appeal to set aside a number of rulings made by the Commission which were oral rulings made during the course of the hearing of these applications on 31 August 2009 and 20 September 2009.  The appellant also seeks an order that the Commission reimburse him for the cost incurred and for time lost as a result of the provision of an incorrect and unedited transcript in February 2010.

8          The schedule to the application to amend the grounds of appeal sets out a number of proposed supplementary grounds of appeal.  These are set out in paragraphs 4, 8 and 9(3) of the application to amend.  Paragraph 4 provides as follows:

4. This schedule sets out the grounds of appeal supplementary to the application filed at the Commission on 1 February 2010. They are as follows:

(a) the ruling made by Acting Senior Commissioner P.E. Scott (Commissioner) on 20 September 2009 to refuse to allow me to continue to examine Chantel Rosenthal about computer records, and to refuse me to call Nadine Rosenthal to produce her computer and to submit to examination;

(b) the ruling made by the Commissioner on 31 August 2009 to refuse to allow me to call Laurie Rosenthal to produce stock and other records and to submit to examination; and

(c) the ruling made by the Commissioner on 31 August 2009 to refuse to allow me to examine the records of LS & NA Rosenthal Pty Ltd AC 092 127369 (Company), of which the Respondent, Chantel Rosenthal, Nadine Rosenthal and Laurie Rosenthal are directors and shareholders.

9          The appellant says in paragraph 4 and 8 that the Commissioner should have allowed him to call Chantel Rosenthal, Nadine Rosenthal and Laurie Rosenthal to be examined as witnesses.  In paragraph 9(3) the appellant makes an application for reimbursement of costs in relation to time for charge-out loss as the result of the incorrect and unedited transcript being provided to him by the Commission.  In the alternative the appellant seeks a full refund of the cost of fees paid of $1,188.  At the hearing of the appeal the Full Bench informed the appellant that this was not a matter that could properly form a ground of appeal as the provision of transcript was not a 'decision' of the Commission within the meaning of s 49 of the Act.

The Appellant's Submissions

10       The appellant's submissions and evidence relied upon about the speaking to the minutes of the order are set out in [44] and [56] of these reasons.

11       In support of the application to amend the grounds of appeal, the appellant requested an extension of time to file the applications due to delay caused by the Commission as he was provided with an incorrect copy of the transcript by the Commission.

12       The appellant's particulars filed on 8 June 2009 which state the reasons the respondent (applicant) was terminated are as follows:  'He was dismissed for serious misconduct, failing and refusing to attend to his duties, failing and refusing to attend to the carting of hay, failing and refusing to attending (sic) to legislative requirements and failing and refusing to attend to the welfare and other requirements of cattle'.

13       The appellant says he requires to continue to cross-examine Chantel Rosenthal about computer records as this part of the cross-examination was incomplete.  In the supplementary appeal book, the appellant contends that during cross-examination Chantel Rosenthal admitted compiling farm notes for the respondent and she also admitted she had typed letters to Tony Palermo on a computer which belonged to Nadine Rosenthal, who is Mrs Rosenthal Snr.  The appellant also claims that Tony Palermo had not received some of those letters and during cross-examination Tony Palermo, the agent for the appellant, asked Chantel Rosenthal to provide proof as to when the letters were actually typed.  The appellant claims that she could not do so without producing Nadine Rosenthal's computer for examination.  The appellant contends that the Acting Senior Commissioner erred by not requiring Nadine Rosenthal to appear to produce the computer and by not allowing Tony Palermo to continue to examine Chantel Rosenthal in relation to the computer.  However during oral submissions to the Full Bench, the appellant's agent Tony Palermo informed the Full Bench that if the computer is produced, the appellant would not require Chantel Rosenthal to be recalled to give evidence. 

14       In relation to the summonses to Mr and Mrs Rosenthal Snr, the appellant says that during the cross-examination of Chantel Rosenthal it became evident that Laurie Rosenthal, who is Mr Rosenthal Snr and his directors of LS and NA Rosenthal Pty Ltd carried the same stock for farming operations as the appellant did and, further, when the respondent (applicant) went on leave, he consigned (without the authority of the appellant) the farm and all stock to Laurie Rosenthal to manage.  The company's farm is located across the road at about 100 metres from the appellant's farming operations.  The appellant argues that he requires all stock records of the Rosenthal operations to be produced, although he admits that no allegation of theft of any stock is made against the respondent (applicant).  Notwithstanding this admission, the appellant claims the production of records and the evidence that Mr Rosenthal Snr could give would be critical and instrumental to proving the case for dismissal.

15       The appellant says this is not a fishing exercise and that other than diaries which were produced to the Commission prior to the hearing he has not been able to reconcile missing cattle numbers.

16       The appellant also argues it is relevant for him to determine whether the respondent (applicant) appropriated diesel fuel, plant and equipment and hardware and other farm items that contributed to the dismissal action.  Further the appellant says it is relevant for him to determine whether the respondent was also employed by LS and NA Rosenthal Pty Ltd whilst employed full-time by him.

17       During oral submissions before the Full Bench, the appellant's agent informed the Full Bench that the appellant now only seeks to call evidence from Mrs Rosenthal Snr about the computer and no other issue.

18       The appellant's agent also explained why the appellant wants to call Ms Consentino.  He said the appellant wished to call her because one of his principal witnesses that he had intended to call had died.  Shortly before the witness died Ms Consentino telephoned him and the appellant wishes to examine her about that matter.

19       The appellant argues that if Mr Laurie Rosenthal is called to give evidence then they may not need to call five or six of their witnesses including the appellant's agent, Mr Tony Palermo.

The Respondent's Submissions

20       The respondent points out that the appellant seeks to appeal discretionary decisions made by the Commission and that the approach to the Full Bench to the exercise of its discretion is canvassed notably in Burswood Resort (Management) Ltd v The Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch [2000] WASCA 386 at [12] - [13] which in turn follows well established principles laid down in House v The King (1936) 55 CLR 499 (504 - 505) and Norbis v Norbis (1986) 161 CLR 513 (518 - 519).

21       The respondent also says the appeals have not complied with reg 102(3) of the Industrial Relations Commission Regulations 2005 (the regulations) which requires a notice of appeal to 'specify the particulars relied on to demonstrate that it is against the weight of evidence and the specific reasons why it is alleged to be wrong in law'.  As the decisions appealed against are 'findings' as defined in s 7 of the Act, reg 102(4) of the regulations requires the grounds of appeal to contain a statement setting out 'the reasons why it is considered that the appeal is of such importance that, in the public interest, an appeal should lie'.  The respondent points out that neither the notice of appeal nor the application to amend the grounds of appeal satisfied this requirement.

22       Further the respondent says that the appeal and the amended application to amend the grounds of appeal must fail by virtue of s 49(2a) of the Act because none of the matters are of such importance that, in the public interest, an appeal should lie.  The respondent also says that the appeal and the application to amend the appeal should fail because the appellant is not able to show an error of law in the exercise of discretion by the Acting Senior Commissioner.

23       In relation to the notice of appeal, the respondent points out that the grounds relate to an alleged lack of notice given to the appellant about the speaking to the minutes held on 21 January 2010.  They also point out there is no complaint about the process leading to the draft orders been issued.  Nor is there any complaint that the appellant did not have an adequate opportunity to make submissions prior to the issuing of reasons for decision.

24       The respondent says a speaking to the minutes under the Act only has a limited purpose: Tan v Paris and Christie Kafetzis t/as Gabriel's Café (1999) 79 WAIG 2987.  In particular, he says the purpose of a speaking to the minutes is to ensure that the order reflects the Commission's intention and not to challenge the order itself.

25       The respondent also contends that in any event the order made by Acting Senior Commissioner Scott on 15 January 2010 limiting the time for presentation of the parties' cases arose as a result of the appellant's failure to provide particulars of its case despite being ordered to do so by the Acting Senior Commissioner on 5 November 2009.

26       In relation to the appellant's application to amend the grounds of appeal, the respondent says that before the appeal grounds can be amended an extension of time would have to be granted to the appellant as an appeal to the Full Bench must be brought within 21 days of the decision being appealed against (s 49(3) of the Act).  The respondent submits that an extension of time should not be granted in these circumstances as the appellant has not provided an acceptable explanation for a delay as a significant period of time has lapsed since the decisions were made in August 2009 and September 2009.

27       In relation to the decision by Acting Senior Commissioner Scott to set aside the witness summonses, the respondent contends the submissions made by the appellant's agent showed the appellant's purposes for issuing the summonses were a fishing expedition and for an improper and ancillary purpose, namely to establish whether the witnesses had stolen cattle where it was not alleged in the proceedings that the respondent had stolen cattle or was dismissed for that reason.

28       In respect of recalling Chantel Rosenthal, the respondent says her evidence in relation to the computer was limited to verifying she had typed certain documents on certain dates using Nadine Rosenthal's computer.  The respondent contends the appellant's purpose in demanding production of Nadine Rosenthal's computer was to disprove the witness' evidence about the dates on which she typed those letters.  Consequently, the respondent submits there is no forensic purpose for the production of the computer and that the production of the computer had minimal purpose in the proceedings.  A submission is also made that the Commission is not a forum for the appellant to retrospectively determine what the reason is for the termination of the respondent's (applicant's) employment.

The Appeal is Against a Finding or Findings

29       Pursuant to s 49(2) of the Act, an appeal lies to the Full Bench in the manner prescribed from any decision of the Commission.  However, pursuant to s 49(2)(a) of the Act, an appeal does not lie under s 49 from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal shall lie.

30       A 'decision' is defined in s 7 of the Act to include award, order, declaration or finding.  A 'finding' is defined in s 7 of the Act to mean a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate.

31       Section 34(1) of the Act provides:

The decision of the Commission shall be in the form of an award, order, or declaration and shall in every case be signed and delivered by the commissioner constituting the Commission that heard the matter to which the decision relates or, in the case of a decision of the Commission in Court Session, shall be signed and delivered by the Senior Commissioner among the commissioners constituting the Commission in Court Session.

32       Section 35 of the Act relevantly provides:

(1) Subject to this section, the decision of the Commission, except a direction, order or declaration under section 32 or an order for dismissal shall, before it is delivered, be drawn up in the form of minutes which shall be handed down to the parties concerned and, unless in any particular case the Commission otherwise determines, its reasons for decision shall be published at the same time.

(2) At the discretion of the commissioner giving the decision the minutes and reasons for decision may be handed down by the Registrar.

(3) The parties concerned shall, at a time fixed by the Commission, be entitled to speak to matters contained in the minutes of the decision and the Commission may, after hearing the parties, vary the terms of those minutes before they are delivered as the decision of the Commission.

(4) The Commission, with the consent of the parties, may waive the requirements of this section in any case in which it is of the opinion that the procedures therein prescribed are inappropriate or unnecessary.

33       Further, s 36 of the act provides:

Every decision of the Commission shall — 

(a) be sealed with the seal of the Commission;

(b) be deposited in the office of the Registrar; and

(c) be open to inspection without charge during office hours by any person interested.

34       It is clear that the order made on 21 January 2010 is a 'finding' constituted by an order made by the Commission as the order did not dispose of the rights of the parties.  It is an interlocutory order solely concerned with the mechanics of case management.  Consequently, for an appeal to lie the Full Bench must form the opinion that the matter is of such importance that, in the public interest, an appeal should lie.  Unless the Full Bench forms that opinion, the appellant does not have a right of appeal in respect of the order made on 21 January 2010.

Does an Appeal lie against rulings made during the course of a Hearing

35       A decision of the Commission is a document required to be signed and delivered.  Before its delivery it has to be drawn up in the form of minutes.  The minutes are either varied or not varied if there is a speaking to the minutes.  The decision of the Commission is then delivered, sealed and deposited in the office of the Registrar and is open for inspection:  McCorry v Como Investments Pty Ltd (1989) 69 WAIG 1000 (1003) (Kennedy J); Registrar v Metal and Engineering Workers' Union of Western Australia (1994) 74 WAIG 1487 (Hamersley Iron).  Unless the decision is sealed there is no 'decision':  Como Investments Pty Ltd (1001 - 1003) (Brinsden J).

36       In the Hamersley Iron matter, the Commission convened a compulsory conference under s 44 of the Act after employees of Hamersley employed at Tom Price had withdrawn their labour for an indefinite period.  The Commissioner formed the opinion that it was necessary to intervene and to make an order prohibiting industrial action to prevent further deterioration of the industrial relations between the parties until further conciliation or, failing that, arbitration, had resolved the matter in dispute.  On 19 June 1992, pursuant to its powers under s 44(6)(ba) of the Act, the Commissioner announced certain orders, which were subsequently incorporated into a formal order.  The formal order was signed by the Commissioner and was deposited in the office of the Registrar on 23 September 1992.  However the orders required that certain steps be taken by particular dates in June 1992.  In October 1992, the Registrar commenced enforcement action against the respondent and a number of other unions, maintaining that the respondents had failed to take all such steps that were necessary to ensure the industrial action cease in accordance with the order.  Breaches of the order were said to have occurred on dates in June 1992.  It was argued on behalf of the respondents that at the time the breaches were said to have been committed there was no 'order' in existence.  This argument was successful before the Full Bench who dismissed the enforcement application.  The Registrar appealed to the Industrial Appeal Court who after hearing argument the majority of the Industrial Appeal Court dismissed the appeal.

37       Justice Kennedy explained the reasons of the majority for doing so as follows:

As I endeavoured to make clear in McCorry's case, in my opinion, a decision (which is defined to include an order) under the Act, except, perhaps, an oral order in conciliation proceedings under s 32(4), is a document.  Until an oral order is put into the form of a document and signed and delivered, there is no order – cf Holtby v Hodgson (1889) 24 QBD 103, at 107, per Lord Esher MR.  Until that time there remains something to be done to perfect it.  There is no general power to be found in the Act to make orders apply retrospectively.  Whether a signed order, which has been delivered, still requires compliance with s 36, remains, for me, an open question.  The answer to it may depend, to some extent, upon the meaning of the word 'delivered' in this context.  Nevertheless, it is clear that the Act requires 'delivery' of the document after it has been signed.  In McCorry's case, the signing, sealing and depositing of the document in the office of the Registrar all appear to have taken place on the same day.  Having regard to the opening words of s 36 and to para (c), which requires that a decision be open to inspection, it may well be that the section merely addresses formalities to be complied with after the decision has been perfected.  In contrast to ss 34 and 35, s 36 refers to 'every decision' and not 'the decision'.  And it may well be that "delivery" of a decision by a Commissioner requires no more than the evincing of an intention, after signature, to have it operate (cf delivery of deeds, 12 Halsbury's Laws of England, 4th ed, para 1329).  No suggestion was put before us, however, that if s 36 did not have to be complied with before the order came into effect, it would make any difference in the present case.  The information we were given as to the normal procedure after orders have been signed strongly suggests that it would not, because, as in McCorry's case, the signing of the order and its depositing with the Registrar were likely to have occurred on the same day.

In my opinion, as the time when it is alleged that the respondents failed to take the steps required by the order, there was no breach of an existing order.

38       Consequently oral rulings made in the course of a hearing are not a 'decision' within the meaning of s 49 of the Act.  As the Acting Senior Commissioner has made no 'decision' within the meaning of s 34, s 35 and s 36 of the Act in respect of the oral rulings complained of in August 2009 and September 2009 in the application to amend the notice of appeal, we are of the opinion that the application to amend should be dismissed on the basis that there is no 'decision' from which an appeal can be instituted.  However, if it can be said the order made on 21 January 2010 disposes of these applications as the Acting Senior Commissioner reconsidered these applications in her reasons and dealt with the matter afresh, we are of the opinion the application should be dismissed as the matters raised in the application to amend are not of such importance that, in the public interest, an appeal should lie.

The terms of the Orders made on 5 November 2009 and 21 January 2010

39       It is clear from the grounds of appeal that the appellant does not seek to challenge the terms of the order made on 5 November 2009.  The order made on 5 November 2009 and the reasons for decision set out in the order provided as follows:

WHEREAS this is an application by which the applicant claims that he has been unfairly dismissed from his employment with the respondent; and

WHEREAS on Thursday, the 23rd day of April 2009 the Commission issued Orders dealing with the Notice of Answer and Counter Proposal and matters of production and discovery; and

WHEREAS on Monday, the 11th day of May 2009 the Commission varied the Order of the 23rd day of April 2009; and

WHEREAS the matter proceeded to hearing on Monday, the 31st day of August 2009, Tuesday, the 1st day of September 2009, Wednesday, the 2nd day of September 2009, Tuesday, the 20th day of October 2009 and Wednesday, the 21st day of October 2009; and

WHEREAS the Commission expressed concern as to the pace at which the hearing was proceeding and discussed with the parties during the hearing of the 20th and 21st of October 2009 mechanisms for focusing the parties' attention on the issues in dispute between them and for specifying and limiting the times for the conduct of the hearing; and

WHEREAS the Commission noted that in accordance with the Orders previously issued by the Commission, the respondent filed and served a document dated the 8th day of June 2009 which provided some further and better particulars of the respondent's reasons for dismissal however, other matters continued to arise during the course of the hearing and it was difficult to determine whether they were matters upon which the respondent relies for its decision to terminate the employment and are thus relevant to the proceedings; and

WHEREAS the applicant sought a direction that the respondent file and serve further and better particulars of:

1. The applicant's alleged misconduct; and

2. The applicant's performance issues;

upon which it relies, in its decision to dismiss him; and

WHEREAS the respondent agreed to provide further and better particulars of those matters; and

WHEREAS the Commission sought from the respondent a timeframe in which he would be able to provide those further and better particulars of those matters and the respondent indicated that it would be approximately 60 days, that is by the 15th day of December 2009 due to his other business commitments; and

WHEREAS the Commission heard from the parties as to the appropriate timeframe for the filing and serving of such a document and the Commission has taken account of:

1. The timeframes provided for within the Industrial Relations Act 1979 and the Industrial Relations Commission Regulations 2005 for the filing and serving of claims and of Notices of Answer and Counter Proposal;

2. The fact that the respondent had previously filed and served some further and better particulars;

3. The hearing of the matter having proceeded for five days and that the respondent had been cross-examining the applicant, with some interruptions, over a number of days; and

4. The respondent's business commitments; and

WHEREAS the Commission is of the view that an appropriate period for the respondent to file and serve further and better particulars is a period of 28 days from Wednesday, the 21st day of October 2009 and that an order shall issue accordingly; and

WHEREAS by email dated the 20th day of October 2009 following the conclusion of the hearing of that day the applicant raised the issue of the Commission issuing directions limiting the period for presentation of the parties' respective cases pursuant to s 27(1)(ha) to ensure that the matter is conducted in a manner envisaged by s 26(1)(a); and

WHEREAS during the course of the hearing on 21st day of October 2009 the Commission heard from the applicant in elaboration on that matter and the respondent provided to the Commission a document expressing the respondent's view and further responded to the applicant's application; and

WHEREAS the Commission is of the view that in the circumstances of the manner in which the hearing of this matter has proceeded to date that it would be appropriate to determine the periods that are reasonably necessary for the fair and adequate presentation of the parties' respective cases and to require that the cases be presented within the respective periods; and

WHEREAS the Commission will require the parties to:

1. identify the names of their respective witnesses and how long they anticipate the examination of each such witness will take;

2. upon advice as to the names of the other party's witnesses and how long that party anticipates examination-in-chief will take, how long cross-examination will take; and

3. indicate the amount of time which will be required for the presentation of closing submissions or whether closing submissions ought to be made in writing and if so, the period to be allowed between the final day of hearing and the filing of closing submissions.

NOW THEREFORE, having heard Ms R Cosentino of counsel on behalf of the applicant and Mr T Palermo and Mr J Palermo, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders that:

1. The Respondent file and serve further and better particulars of facts and issues of:

(a) the applicant's alleged misconduct; and

(b) the applicant's performance issues,

upon which it relies as reasons for the termination of the applicant's employment no later than 28 days from Thursday, 5 November 2009;

2. The parties shall file and serve a list of the names of their witnesses and an estimate of the time necessary for examination in chief of each of those witnesses no later than 28 days from Thursday, 5 November 2009;

3. No later than 7 days after receipt of the other party's list of witnesses referred to in Order 2 above, each party shall file and serve a notice of the estimated length of time for the cross-examination of each of the other party's witnesses;

4. Reference to witnesses in Orders 2 and 3 above includes estimates of the time necessary to conclude the examination in chief of Victor John Matthews and the cross-examination of Charles Henry Rosenthal; and

5. The parties advise the Commission no later than 28 days from Thursday, 5 November 2009;

(a) an estimate of the length of time their closing submissions will take; and

(b) whether they would prefer to make closing submissions in writing; and

(c) if closing submissions are to be made in writing, the period to be allowed between the final day of hearing and the filing of closing submissions.

6. The parties advise the Commission of their unavailable dates for the resumption of the hearing in February and March 2010.

40       The material parts of the order made by the Commission on 21 January 2010 are that the Commission:

1. Declares that the periods set out in Order 2 hereunder are those reasonably necessary for the fair and adequate presentation of the parties' respective cases;

2. Orders that the parties shall present their cases in accordance with the maximum periods set out below:

(a) completion of the cross examination of the applicant, Charles Henry Rosenthal – a further day;

(b) completion of the evidence of Victor John Matthews:

(i) examination in chief – a further half day or 2.5 hours, whichever is greater;

(ii) cross examination – 1.5 hours.

(c) evidence of Tony Palermo:

(i) examination in chief – 2 hours;

(ii) cross examination – 1.5 hours.

(d) evidence of John Palermo:

(i) examination in chief – 2 hours;

(ii) cross examination – 30 minutes.

(e) evidence of Noel Nancarow:

(i) examination in chief – 1 hour;

(ii) cross examination – 10 minutes.

(f) evidence of Todd Nancarrow, Bob Nancarrow, Michael Venn and Tim Venn:

(i) examination in chief – 1 hour each:

(ii) cross examination – by application, provided that it shall be no more than thirty minutes each.

(g) evidence of David Cabassi:

(i) examination in chief – one hour;

(ii) cross examination – 20 minutes.

3. Orders that closing submissions be made orally at the conclusion of the evidence, with each of the respondent and applicant being limited to 1 hour.

4. The hearing of this matter shall be re listed for a period of 5 days at which time it shall conclude unless further time is allowed.

Public Interest

41       The requirement to show public interest when an appeal is against a 'finding' is no mere technicality but serves an important function in the administration of justice under the Act by discouraging unnecessary appeals against interim and interlocutory decisions of the Commission.  In other jurisdictions such aims are met by a requirement to obtain leave of a court to appeal an interlocutory order.

42       The effect of s 49(2a) of the Act is that no appeal against a 'finding' is competent until the Full Bench has reached the opinion that the matter is of such importance that, in the public interest, an appeal should lie.  In RRIA v AMWSU (1989) 69 WAIG 1873, the Full Bench in respect of public interest considered the meaning of public interest in s 49(2a) of the Act.  They observed (1879):

The words 'public interest' should not be narrowed to mean 'special or extra-ordinary circumstances', which is the test which the respondent applied, in that case.  It is not the test.

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 (see Re Australian Insurance Employees' Union; ex parte Academy Insurance Pty Ltd and Others 78 ALR 466).  We agree with that proposition.  In Re Gas Industry Award 104 CAR 376, Wright and Moore J.J. and Gough C. said that the question of sufficient importance cannot be decided on the basis of case law.  Each case will be a question of impression and judgment whether the appeal has the required degree of importance.  We agree.

An appeal will not lie unless the Commission has formed a positive opinion on the public interest of the matter.  Doubts or misgivings are not sufficient [see Re Journalists Metropolitan Daily Newspapers Agreement (1960) 94 CAR 760 at 768].  We agree also with that proposition.

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.

Clearly, every allegation of an injustice being done to persons whose terms and conditions of employment are affected or who employ persons, whose terms and conditions are thereby affected, does not warrant a re-opening of an award or order, for example.

In The Industrial Life Assurance Agents Union v. The AMP Society 74 CAR 161, Kelly C.J. said at page 162:-

I think it should be shown on the face of the award or order that something has been dealt with by that order, which I should think, directly or certainly apparently affects the public interest.

It is obviously impossible to express any general standard or degree of importance which will satisfy the test of such importance.  Every case must be viewed on its merits according to its individual circumstances [see Federated Ship Painters and Dockers Union v. Adelaide Steamship Co. (op. cit.)].

In the case of section 49(2) of the Act, public interest would not be identical however, to the concept as it might be applied in issuing an award for example [see Re Chemists State Award (1967) AR (NSW) 391].

43       Acting President Ritter in MRTA of WA Inc v Tsakisiris (2007) 87 WAIG 2795 also relevantly observed: 'the emphasis in s 49(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 [15]'.

44       The grounds on which the appellant makes the application and the evidence which he relies upon in the appeal against the order made on 21 January 2010 are set out in the schedule of the notice of appeal as follows:

4. On 14 January 2010, Helen Evans, Associate to the Commissioner (Associate) sent an email to my agent, Tony Palermo, stating that a Reasons for Decision regarding the limitation of times for presentation of cases  in this matter would be available for collection at the Commission's Registry after 11:30 am on Friday 15 February 2010 (Email).  A copy of that email is attached as Annexure 1.

5. Neither I, nor Tony Palermo were available to collect the Reasons for Decision until Monday 18 January 2010.  In understand that at about 2:00pm that afternoon, Tony Palermo attended at the Registry  to collect the Reasons for Decision, and was provided with the proposed Orders and a Form 15 Notice of Hearing to be heard on 21 January 2010 at 4:30pm (Hearing).

6. I understand that Tony Palermo advised Registry officers Trudy and Tony Nick Lucano that I would not be able to appear at the Hearing because I would be overseas.  Tony Palermo was advised by the Registry offices to contact the Associate to advise her of this, or alternatively, to explain this to the Commissioner at the Hearing.  Tony Palermo attempted to contact the Associate by telephone, without success.

7. I was not able to give instructions to Tony Palermo during the period between Tony Palermo attending the Registry and before I travelled overseas to the Philippines at approximately 6:00am on the morning of Tuesday 19 January 2010.  During that time I was pre-occupied in preparing for my overseas trip, and I understand that Tony Palermo attempted to contact the Associate by telephone, without success.

8. During my trip, I was at all times engaged in the affairs of a publicly listed company.  I am Chairman of that company.  I was accompanied by the company's geologist to appear before the Regional Director in Manila regarding the issue of mining permits.  A copy of my travel itinerary is attached as Annexure 2.  I understand that Tony Palermo attempted to produce this at the Hearing.

9. I understand that Tony Palermo attended the Hearing and that he advised the Commissioner that I was unable to attend the Hearing because I was overseas, and that at short notice he was unable to obtain my instructions in relation to the proposed Orders.  I also understand that Tony Palermo advised that he was unable to contact me to discuss the matter and obtain instructions while I was overseas.

10. I also understand that at the Hearing, Tony Palermo queried why the Associate had not contacted him earlier to advise him of the date of the Hearing, and why the Associate had been non-contactable.  Further, Tony Palermo advised the Commissioner that in his view the Hearing time would be a waster simply because the Associate had failed to arrange an appropriate hearing date and because of this had shown a lack of respect and courtesy by failing to call him to ask for dates on which both of us would be available to attend the Hearing.

11. The Commissioner ruled that I had been given sufficient notice of the Hearing Date, and made the Orders on that basis.

12. I also question the accuracy of the first paragraph of the Orders which state as follows:

'Having heard from Ms R Cosentino of counsel on behalf of the Respondent and Mr T Palermo and the Appellant on his own behalf, by way of written correspondence…'

In my view, the opening statement is incorrect as it states that the Commissioner has heard from both Tony Palermo and I, but we have in fact not been heard on this issue.  Further compounding this issue is that I was not at the Commission to appear as I was overseas.  If we had been heard, perhaps the Orders in their current form would not have been made.

13. Throughout this matter, the Commissioner has in my view acted in bias against me and in favour of the Respondent.  The effect of the Orders is to reduce the length of time I have to properly conduct my case, which in my view will be required due to the Respondent's repeated refusal to answer questions put to him by both myself and Tony Palermo.  On each occasion, the Commissioner has refused to require the Respondent answer such questions.  On the basis that the Respondent continue to refuse to answer my questions, I will not be able to prove my case within the strict timeframes specified by the Order.

14. Further, in my view the Commissioner should not be handling both the hearing of this matter and its case management.

45       The appellant seeks orders before the Full Bench that:

(1) the Orders be withdrawn;

(2) the hearing regarding the limiting of times for presentation of cases be rescheduled for a further hearing;

(3) the Commissioner be dismissed from her role and replaced with an independent Commissioner; and

(4) all matters be heard by a Senior Commissioner and not an Acting Senior Commissioner.

46       In the supplementary appeal book, the appellant seeks an order in effect that the grounds of appeal be amended and an order that the Commissioner allow the appellant to examine or cross-examine Chantel Rosenthal, Nadine Rosenthal and Laurie Rosenthal in relation to the matters set out in the proposed amended grounds of appeal. 

47       In the unamended grounds of appeal, the appellant contends that he and Tony Palermo had not been heard prior to the Acting Senior Commissioner issuing her reasons for decision on 15 January 2010 and making the order on 21 January 2010.  This however is not correct.  In the order made on 5 November 2009 the order required that the parties file and serve a list of the names of their witnesses, an estimate of time necessary for examination-in-chief and a notice of estimated length of time for cross-examination of each of the other party's witnesses.  They also were required to inform the Commission no later than 28 days from Thursday, 5 November 2009, an estimate of the length of time their closing submissions would take and whether they prefer to make closing submissions in writing.  On 1 December 2009 the respondent's (applicant's) solicitors advised that its only witness was Charles Henry Rosenthal and the estimated re-examination of Mr Rosenthal would be 30 minutes' duration and the respondent (applicant) prefers to make oral closing submissions the duration of which was estimated to be 30 minutes.

48       The appellant filed its response in an email on 3 December 2009.  The email dealt with the issue of particulars and also gave a list of witnesses and estimated duration for re-examination.  The email stated as follows:

Orders .Full response will be by next Tues as adv in prev email

Brief response is as follows

Order 1 a tba failing which what has already been provided stands

b as for a above

Order 2

Charles Rosenthal 3 to 8 days

Mr Rosenthal Senior 1 day

Mrs Rosenthal Senior 3 hours

C Rosenthal 3 hours

Vic Mathews 2 to 4 days

T Palermo 1 to 8 days

John Palermo 6 hours

N Nancarrow 4 hours

T Nancarrow 4 hours

B Nancarrow 4 hours

M Venn 1 day

T Venn 2 days

D Cabassi 2 days

R Cosentino 2 hours

Order 5

A 2 days

B in writing

60 days

Order 6 tba by Tuesday but at present Feb and March are out April is ok First 2 weeks in May ok June and July are out (sic)

49       On 7 December 2009 the Commission received a letter from the appellant which addressed the terms of the order made on 5 November 2009 and reiterated the times for examination of witnesses contained in the email of 3 December 2009 and where the email had set out names of witnesses, the appellant provided first names to those initials.  The appellant's letter said that the length of time for closing submissions was as previously advised, two days, and the preference was for closing submissions to be made orally.  The appellant also sought in the letter that the Commission reconsider the previous decision to discharge summonses issued to Mr Rosenthal Snr and Mrs Rosenthal Snr.

50       The Acting Senior Commissioner's reasons for decision records that by letter dated 14 December 2009 the respondent's (applicant's) solicitors informed the Commission as follows:

In accordance with Order 3 we advise that the estimated length of time for cross-examination of the Respondent's witnesses is as follows:

The Acting Senior Commissioner observed in relation to the respondent's (applicant's) letter that the letter also expressed the view that the particulars of performance issues or misconduct relied upon by the respondent and set out in his letter of 7 December 2009 did not justify termination; that it was difficult to see how the evidence proposed by the respondent would be relevant; that the 'Defence' was as vaguely and broadly framed as it was 'merely to justify using the hearing as a lengthy and time wasting fishing exercise'.  The letter questioned 'how Rachel Cosentino or the Applicant's parents can give admissible evidence relevant to this case' and requested the Commission to 'make orders limiting the time for presentation of the Defence without regard to the Respondent's letter of 7 December 2009'.  The respondent's (applicant's) solicitors also submitted that it was entirely inappropriate for the respondent to name Mr Rosenthal Snr, Mrs Rosenthal Snr, Chantel Rosenthal and Rachel Cosentino as further witnesses, noting:

In relation to Mrs (sic) and Mrs Rosenthal Senior being witnesses, Senior Commissioner Scott has already made a determination disallowing the Respondent's Summons served on Mr and Mrs Rosenthal Senior.  Mr and Mrs Rosenthal Senior advise that they have not otherwise been asked by the Respondent to give evidence on behalf of the Respondent.

Chantel Rosenthal was called as a witness by the Applicant.  She has been cross examined, has completed her evidence to the Commission and has been discharged.

51       The Acting Senior Commissioner set out the issues and conclusions in her reasons for decision after considering the written correspondence from both parties.  We will set out these reasons in full.  They are as follows [10] - [27]:

I have considered the history of this matter.  That history includes that the matter was listed for three days, and it was listed for a further two days, although some of that latter period was utilised for conciliation.  Mr Rosenthal's evidence has already taken an inordinate time due to the way questions have been framed; an inefficient and time consuming method of cross-examination; a lack of clarity as to the reasons for dismissal, and due to Mr Rosenthal being reluctant to answer and unhelpful in answering questions such that he was required to be directed to answer on a number of occasions.  The manner in which the respondent in particular has approached the hearing to date has lacked discipline and if such an approach were to continue, it is conceivable that the hearing would drag on indefinitely.  This is further evidenced by the lack of precision in the respondent's estimates of the length of time it will take for examination in chief of Mr Tony Palermo, the respondent's own agent, where the estimate is between one and eight days, and for Mr Matthews, a further two to four days.

The Commission is not obliged to allow parties to take as long as they please.  It has an obligation to conduct hearings in an expeditious manner, and to do so in a manner which is fair to both sides.  To allow one side to proceed in a manner which places no obligation on that party to conduct it's case efficiently would be an inefficient use of the Commission's time, but also unfair and costly on the other party.  Section 27(1)(ha) recognises the need for the Commission to impose limits in appropriate circumstances.

Reviewing the history of this matter has reinforced my view as to the need for and appropriateness of issuing orders for the purpose of limiting the period for presentation of the parties' respective cases pursuant to s 27(1)(ha) of the Industrial Relations Act, 1979 ("the Act") to ensure that the hearing is conducted in a manner envisaged by s 26(1)(a) of the Act, in particular by the respondent's proposals in respect of the length of time that it intends its witnesses to be under examination in chief. 

I note also that the respondent suggests that Chantel Rosenthal be under examination for three hours, however, Chantel Marie Rosenthal, the wife of the applicant, gave evidence on 2 September 2009 and was cross-examined.  Her evidence concluded that day.  There is no indication as to why she ought to be recalled. 

The respondent seeks that I reconsider my decision made early in proceedings to discharge summonses issued to Mr Rosenthal Snr and Mrs Rosenthal Snr.  The suggestion contained within Mr Palermo's letter of 7 December is two-fold:

1. That if I do not reconsider that ruling then he "will have no alternative but to lodge an appeal against the ruling".

2. That evidence given by the applicant:

"of certain critical information that was processed on Mrs Rosenthal Senior's computer.  Despite continuous requests, the computer has not been produced.  Mrs Rosenthal Senior is required to give evidence not only of the ownership of the computer but of the information that was processed on her computer.  I can have a computer analyst examine the computer either at or prior to the hearing continuing so as to reduce hearing time".

I have considered whether it is appropriate to reconsider my earlier decision regarding Mr and Mrs Rosenthal Snr being summonsed and my view on that matter has not changed. 

The evidence given by Chantel Rosenthal as to her use of the computer stands.  Appropriate conclusions can be drawn from that applying the rules of evidence.  Furthermore, it would appear that Mr Palermo wishes to examine Mrs Rosenthal Snr not only as to the ownership of the computer but about the information that was processed on her computer.  The only question which arose during Chantel Rosenthal's evidence was the date upon which a particular document was typed.  Her evidence stands as it is and there is no indication as to why that evidence should or should not be accepted.  Further, there is no indication of what, if any, further evidence regarding "information that was processed on her computer" was necessary for the purpose of this hearing, and why Mrs Rosenthal Snr ought to be examined about that. 

As to Mr Rosenthal Snr, the respondent says that he is required to give evidence: 

"as it appears from what Mr Rosenthal (the applicant) has stated in cross-examination that at times while he was on leave he consigned the farm and all farming operations without authority to his father.  His father needs to be cross-examined as to the duties he undertook, stock numbers consigned to him and stock numbers re-consigned upon completing his 'caretaking' role". 

There is no indication as to how this information is relevant.  It appears to go back to the question of stock numbers which Mr Palermo suggests were not as they ought to have been, whilst he denies there is any allegation of theft against the applicant. 

The questions which are before the Commission relate to the applicant's performance of his duties.  He has given evidence of the circumstances under which he took leave and his father undertook duties for him.  I see no relevance in further examination of this issue in terms of evidence from Mr Rosenthal Snr.  I am of the view that Mr Palermo is seeking to use this hearing to gather information for purposes other than responding to the claim before the Commission, a matter clarified with Mr Palermo early in proceedings.

In respect of the evidence of Victor John Matthews, he was under examination in chief on 2 September 2009 from 2:00pm until 4:00pm.  For it to be suggested that his evidence in chief should now take between two and four days, without explanation, makes it difficult to accept that this is a fair and reasonable estimate of the time required of him.  Further, an examination of the transcript of the examination in chief on that day demonstrates that his examination could have been far more efficiently and effectively conducted in a shorter period of time that it took to that point.  There was also a great deal of repetition in the questioning of him.  Accordingly, I am prepared to allow Mr Matthews' examination in chief for a further half-day or 2.5 hours.

As to the applicant, Charles Rosenthal, the respondent says that it requires him to be cross-examined for between three and eight further days.  Mr Rosenthal has already been under cross-examination for almost all of 1 September 2009, for more than half of the morning on 2 September 2009, and all day on 20 October 2009.  In deciding how much more time should be allowed for the cross-examination of Mr Rosenthal, I note how long he has already been under cross-examination; how long the hearing was originally scheduled for; that Mr Rosenthal has, from time to time, been directed by me to answer questions put to him because of his lack of cooperation, and that during the hearing of 20 October 2009, Mr Palermo responded to a question regarding the timing of Mr Rosenthal's cross-examination and of Mr Matthews completing his evidence.  Mr Palermo said:

"Yes.  Mr Matthews has been programmed to be here tomorrow and, hopefully, we'll get through Mr Rosenthal's evidence today." (Transcript page 259).

In all of those circumstances, I conclude that one further day of cross-examination of Mr Rosenthal, the applicant, ought to be quite adequate.

As to examination of the respondent's own witnesses, the respondent suggests Mr Tony Palermo's evidence will take between one and eight days.   Given that Mr Tony Palermo is conducting the case for the respondent, this is an extraordinarily inadequate and poor estimation and one is led to the conclusion that there has been no genuine attempt to make any proper estimate.  One would have thought that Mr Palermo would know how long his evidence will take.  In the circumstances, Mr Tony Palermo's evidence is to be scheduled for two hours. 

As to John Palermo's evidence, it is suggested that his will take six hours.  Given what I perceive to be gross over-estimations and unreasonable estimations of time for the respondent's witnesses, and not having any information as to what evidence John Palermo would give during that six hours, I intend to order that his evidence be limited to two hours. 

Likewise, the estimates of the time for the evidence to be called of Noel Nancarrow, Todd Nancarrow, Bob Nancarrow, Michael Venn, Tim Venn and David Cabassi appear to be unreasonable.  In the case of each of these witnesses, I will schedule their evidence for one hour each. 

As to the respondent calling evidence from Rachel Cosentino, Ms Cosentino is the applicant's solicitor representing him during these proceedings.  There is no explanation as to why she would be able to give any evidence of a relevant nature in this matter.  In the absence of such an explanation, it is not my intention to provide any time for her to be examined by the respondent.

The times for cross-examination of the respondent's witnesses do not appear to be unreasonable given the times for examination in chief which I have set out above.  However, where the applicant has indicated that "0 hours will be required for cross-examination", I will allow the applicant to apply to cross-examine those witnesses once their evidence has been given, provided that cross-examination is limited to 30 minutes in each case. 

The closing submissions shall be made at the conclusion of the hearing, orally.  The parties shall each have one hour for closing submissions. 

Minutes of Proposed Orders shall issue reflecting these time limits. 

52       Whilst the Acting Senior Commissioner in her reasons for decision reconsidered her decision not to allow Chantel Rosenthal to be recalled and to discharge the summonses issued to Mr Rosenthal Snr and Mrs Rosenthal Snr, the order made by the Acting Senior Commissioner on 21 January 2010 does not deal with this matter.  The Acting Senior Commissioner, however, in her reasons for decision given on 15 January 2010 explained her reasons for refusing to allow Chantel Rosenthal to be recalled and for refusing to allow Mr and Mrs Rosenthal Snr to be called as witnesses.  The Acting Senior Commissioner formed the view the examination of the affairs of the parents of the respondent (applicant) and the computer belonging to the mother of the respondent (applicant) went beyond what is necessary for the adequate presentation of the appellant's case.  She also formed the opinion that there was no indication why the evidence about the date Chantel Rosenthal typed a document should not be accepted.

53       Even if it were the case that the order made on 21 January 2010 included an order to dismiss the application to recall Chantel Rosenthal and to order that Mr and Mrs Rosenthal Snr were not required to appear, or the order could be characterised as a 'decision' that disposed of that application, we are not persuaded that the Full Bench should interfere in such a decision.  Appellate courts exercise particular caution in reviewing decisions on matters of practice and procedure: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 (177); Commonwealth v Albany Port Authority [2006] WASCA 185.  In relation to the summonses that were sought to be set aside there is a discretion under s 33(2) of the Act for members of the Commission to control the conduct of a hearing.  Pursuant to s 33(2) where a summons is issued to, and duly served on, a person to appear and give evidence before the Commission, the person may make application to the Commission for cause to be shown for him or her to so appear and, if on the hearing of the application such cause is not shown by the party seeking to call the person, the person is not required to so appear.  Consequently, it is clear from s 33(2) that if a summons to a witness is objected to then the onus is on the party who summonsed the witness, to show cause why that person should appear.

54       The principles of case management must also be considered.  One of the objectives of case management in most courts and tribunals, including the Supreme Court, is the reduction in trial and hearing times.  In the Commission, this object is reflected in s 22B, s 27(1)(ha) and s 27(1)(hb) of the Act.  Section 22B provides:

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.

Section  27(1)(ha) and s 27(1)(hb) of the Act provides:

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it — 

(ha) determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the proceedings and require that the cases be presented within the respective periods;

(hb) require evidence or argument to be presented in writing, and decide the matters on which it will hear oral evidence or argument;

55       In our opinion, the recent observations of Palmer J in Tobin v Ezekeil [2008] NSWSC 1108 where he said that litigants are not free to expend as much of the Court's resources as they wish [36], reflects an appropriate principle of case management that should be applied in matters before this Commission.  His Honour also aptly said [37]:

Litigants are entitled to a fair opportunity to present their case; that does not mean that they can take as long as they like in doing so. The judicial time and administrative of this State's courts are strained by the press of litigants seeking to have their cases heard quickly and efficiently. No one litigant has the right to insist that his case will consume as much of the Court's time and resources as his own pockets will bear.

56       The appellant contends that any appeal before a Full Bench raises a matter of such importance, that, in the public interest, an appeal should lie as the decision creates a precedent and sets standards to be complied with by employers and employees.  The appellant also submits that this matter is an unusual case because the respondent (applicant) has refused to answer questions when giving evidence in the hearing before the Acting Senior Commissioner.  Alternatively, the appellant contends that the Full Bench should not have regard to s 49(2a) of the Act, as the appellant is unrepresented.  However, it is not the case that every appeal before a Full Bench raises a matter of public interest.  Not all appeals raise an issue of importance to other matters.  Secondly, if it is the case that the respondent (applicant) has refused to answer questions that are material to the applicant's or respondent's case then that is a matter that the appellant can make a submission about at the conclusion of the hearing when the appellant makes his submission about the credibility and reliability of the evidence given by the respondent (applicant).

57       It is not open to the Full Bench to disregard the requirements of s 49(2a) of the Act.  It is well established that s 49(2a) creates a mandatory obligation on members of the Full Bench to form the requisite opinion before an appeal against a finding can lie.

58       In this matter the orders only affect the affairs of the parties concerned and do not directly extend outside the affairs of the parties so concerned.  The matters raised in the grounds of appeal and in the application to amend the grounds of appeal raise procedural matters relevant only to the parties that are not likely to be relevant to any one else.  Nor do the grounds raise any matter of legal complexity.  Consequently, no issue is raised for it to be important in the public interest that we should hear the appeal.  Further for the reasons set out below in [59] - [64] of these reasons, we are of the opinion that the unamended grounds of appeal have no merit.  Consequently we are of the view that the appeal should be dismissed.

Speaking to the Minutes and claim of bias

59       The purpose of speaking to the minutes of an order was considered by the Full Bench in Steele v Clarke (2003) 84 WAIG 17.  President Sharkey with whom Coleman CC and Gregor C observed that the purpose of a speaking to the minutes is entirely limited and that the process exists pursuant to s 35 of the Act to enable the parties to put to the Commission matters directed to ensuring that the orders do issue to properly reflect the Commission's decision and reasons therefor [62].  The purpose of a speaking to the minutes is not to address why the reasons for decision are wrong but simply to consider whether the orders set out in the minutes of proposed orders reflect what the Commission says it will order in the reasons for decision.  Historically the purpose of a speaking to the minutes was to give parties to a matter an opportunity to point out any provisions of an award that may have been unworkable in some way to render the award or order less perfect than the Commission intended to be: Sheahan v State School Teachers Union of WA (Inc) (1989) 69 WAIG 3267; Tan v Paris and Christie Kafetzis t/as Gabriel's Café.

60       After the Commission delivers reasons for decision and commits its decision to minutes, the Commission is required to fix a time at which the parties are afforded an opportunity to take advantage of the entitlement to speak to the minutes.  As Sharkey P observed in Steele once minutes of an order issued:

The Commission had no other statutory function to carry out at that time other than to hear and determine, on the speaking to the minutes, the final form which the Commission's decision would take when it issued to be perfected by depositing in the office of the Registrar (see s36 of the Act).  At the time fixed by the Commission the parties are entitled to speak to matters contained in the minutes (see s35(3) of the Act).  It is not the time to bring fresh evidence or make submissions as to substance.  It is not the time to argue an appeal or complain about the decision (see Grade Pty Ltd v McCorry (1993) 73 WAIG 2016 (FB) and also CSA v Public Service Commission (1937) 17 WAIG 22 at 23 per Dwyer P and WA Government Tramways, Motor Omnibuses and River Ferries Employees Union of Workers, Perth v Commissioner of Railways (1947) 27 WAIG 517 at 523 per Dunphy J) [66].

61       As the respondent (applicant) points out in their written submissions, the purpose of a speaking to the minutes is to ensure the orders reflect the Commission's intention (in reasons for decision) and not to challenge the order itself.

62       In this matter the Acting Senior Commissioner delivered her reasons for decision on 15 January 2010 together with the minutes of proposed order.  It is apparent from the appellant's schedule set out in the appeal book that the appellant had notice that the reasons for decision and minutes would be available at the Commission's registry after 11:30 am on Friday, 15 January 2010.  The appellant took no steps to obtain a copy of the reasons for decision or the minute of proposed order prior to his departure overseas on Tuesday, 19 January 2010.  The appellant had appointed Tony Palermo as his agent in the matter before the Acting Senior Commissioner.  It was in the appellant's control to obtain a copy of the reasons for decision and the minute of proposed order and to provide instructions to Mr Palermo prior to 21 January 2010.  There is no requirement in the Act that the Commission is obliged to fix a date which the appellant personally was available to attend the speaking to the minutes.  The appellant had appointed an agent who attended the speaking to the minutes.  Further it is apparent from the submissions made by the appellant that the appellant simply wished to argue that the orders that the Acting Senior Commissioner made should not be made.  In our view this is not a proper purpose for a speaking to the minutes.  It is clear that the terms of the order properly reflected the views reached by the Acting Senior Commissioner in respect of programming of witnesses and submissions.  The only matter that could have been raised by the appellant is that an order should have been made to dismiss the application to recall Chantel Rosenthal and to order that Mr and Mrs Rosenthal Snr are not required to appear.  However, for the reasons outlined, even if such an order had been made an appeal would not lie as such orders in this matter would not raise a matter of such importance that, in the public interest, an appeal should lie. 

63       Although the appellant asserts that the Acting Senior Commissioner is biased against him because the order will reduce the length of time he will have to properly conduct his case and the Acting Senior Commissioner refused to require the respondent (applicant) to answer questions put in cross-examination, we are not satisfied on the material before us that such a claim can be made out.  The mere fact that an interlocutory ruling or order is made that a party perceives to be unfavourable does not in itself give rise to an inference that a member of the Commission will not bring an impartial and unprejudiced mind to the resolution of the claims before the Commission.  Actual bias is subject to a rigorous standard of proof and will only be upheld where the accusations are distinctly made and clearly proved:  Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.

64       For these reasons we have reached the view that there is no merit in the appellant's unamended grounds of appeal.  Even if we were satisfied that the matter was in the public interest we would dismiss the appeal on that ground.