2023 WAIRC 00055

[2023] WASCA 12
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION : DOYLE -v- ROMAN CATHOLIC BISHOP OF BUNBURY [2023] WASCA 12

CORAM : BUSS J
MURPHY J
SMITH J

HEARD : 17 JANUARY 2023

DELIVERED : 31 JANUARY 2023

FILE NO/S : IAC 1 of 2022

BETWEEN : ADRIAN DOYLE
Appellant

AND

ROMAN CATHOLIC BISHOP OF BUNBURY
Respondent



ON APPEAL FROM:

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram : S J KENNER, CHIEF COMMISSIONER
R COSENTINO, SENIOR COMMISSIONER
T EMMANUEL, COMMISSIONER
Citation : DOYLE V ROMAN CATHOLIC BISHOP OF BUNBURY [2022] WAIRC 00317 AND
[2022] WAIRC 00318
File Number : FBA 8 OF 2021



Catchwords:

Industrial Law - Appeal from the Full Bench of the Western Australian Industrial Relations Commission dismissing interlocutory applications in an appeal - Industrial Relations Act 1979 (WA) s 90(1) - Appeal to Industrial Appeal Court moot

Industrial Law - Jurisdiction of Industrial Appeal Court to hear appeal not enlivened

Legislation:

Industrial Relations Act 1979 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant
:
In person
Respondent
:
Mr I Curlewis

Solicitors:

Appellant
:
In person
Respondent
:
Lavan

Case(s) referred to in decision(s):


Confederation of Western Australian Industry (Inc) v Federated Miscellaneous Workers Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1990) 70 WAIG 1281
Doyle v Roman Catholic Bishop of Bunbury [2021] WAIRC 00566
Doyle v Roman Catholic Bishops of Bunbury [2022] WAIRC 00317; [2022] WAIRC 00318; (2022) 102 WAIG 1125
Landsheer v Morris Corporation (WA) Pty Ltd [2014] WASCA 186
State Energy Commission of Western Australia v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1993) 73 WAIG 1453
Veloudos v Young (1981) 56 FLR 182

JUDGMENT OF THE COURT:
Summary
1 The appellant has appealed to this court from a decision of the Full Bench of the Western Australian Industrial Relations Commission, unanimously dismissing four interlocutory applications in an appeal.
2 The appeal is moot. This is because the Full Bench delivered their decision dismissing the substantive appeal on 29 July 2022, and there has been no appeal to this court against that decision. Doyle v Roman Catholic Bishops of Bunbury [2022] WAIRC 00317; [2022] WAIRC 00318; (2022) 102 WAIG 1125.
Consequently, in circumstances where there is no appeal against the decision finally determining the appeal before the Full Bench, whatever the outcome is of this appeal it can have no impact upon that decision.
3 It is well established that whilst courts and tribunals will not decide a question that is academic in the sense that it is useless, merely hypothetical, raised prematurely or a dead issue, they retain a discretion to determine a question where the determination is in the public interest. Veloudos v Young (1981) 56 FLR 182, 190 (Lockhart J); applied in Confederation of Western Australian Industry (Inc) v Federated Miscellaneous Workers Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1990) 70 WAIG 1281, 1282 (Kennedy, Rowland & Nicholson JJ) and State Energy Commission of Western Australia v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1993) 73 WAIG 1453, 1455 (Kennedy J) (Franklyn & Nicholson JJ agreed).
There has been no suggestion in this appeal that the grounds of the appeal raise any matter of public interest.
4 In any event, the appellant has appealed to this court from the decision of the Full Bench dismissing the four interlocutory applications on three grounds, none of which enlivens the jurisdiction of the court in s 90(1) of the Industrial Relations Act 1979 (WA) to hear an appeal.
5 For the reasons that follow, we are of the opinion that the appeal to the court must be dismissed.
The interlocutory applications to the Full Bench
6 On 5 November 2021, Commissioner Walkington dismissed a claim by the appellant, which the appellant had referred to the Commission pursuant to s 29(1)(b) of the Industrial Relations Act, that the respondent as his employer had not allowed him a benefit (not being a benefit under an award or order) to which he was entitled under his contract of employment. Doyle v Roman Catholic Bishop of Bunbury [2021] WAIRC 00566.
The appellant's claim was for an order that his employer pay him $345,000, being the equivalent of three years' salary he claimed to have been owed under a fixed term contract.
7 The appellant filed an appeal in the Full Bench against the decision dismissing his application. The appeal was first listed for hearing before the Full Bench on 22 March 2022. Prior to the hearing of the appeal, the appellant filed four interlocutory applications in the appeal.
8 The interlocutory applications in the appeal were:
(1) an application to amend his original claim, to add to the claim that had been dismissed which was the subject of the appeal claims for long service leave, sick leave and superannuation in the amounts of $16,457, $13,272 and $103,500 respectively; Appeal Book, 7.

(2) an application for discovery, inspection and production of specified categories of documents; Appeal Book, 13  14.

(3) an application to invite the respondent to admit facts as to the identity of the employer; Appeal book, 22  24.
and
(4) an application for discovery of documents relating to perceived and actual conflicts of interest relating to the respondent and the respondent's solicitors, Lavan, and a request for the disclosure of costs and expenditure incurred by the respondent, and other employing entities, in relation to the appellant's litigation against them. Appeal book, 48  50.

The decision of the Full Bench on the interlocutory applications in the appeal before the Full Bench
9 The Full Bench listed the interlocutory applications for hearing prior to the hearing of the substantive appeal.
10 After hearing submissions by the parties on 25 February 2022, on 4 March 2022, the Full Bench issued reasons for decision and made an order dismissing each of the applications.
11 The reasons why the Full Bench dismissed each of the applications were as follows.
12 The Full Bench found that s 49(4) of the Industrial Relations Act provides for a limited appeal to the Full Bench from a decision of a commissioner. In particular, the Full Bench found that s 49(4) makes clear that an appeal is to be heard and determined on the 'evidence and matters raised' in the first instance proceedings. It also found that an appeal is not an opportunity for a party to attempt to reargue their case at first instance, or seek interlocutory orders or directions to bolster their case on appeal, in relation to matters not dealt with at first instance.
13 In respect of the first interlocutory application, the Full Bench found it was not permissible for the appellant to amend his first instance claim on appeal, and that the time to seek leave to amend his claim was prior to or during the first instance proceedings.
14 The Full Bench found the second interlocutory application should be dismissed because it was also not permissible to seek interlocutory orders in an appeal for discovery and production of documents in order to support the appellant's grounds of appeal.
15 In respect of the third interlocutory application, the Full Bench noted that the name of the respondent had been changed by order of the Commission on the application of the appellant. It then went on to find that, if there had been subsequent changes to the legal entity employing staff of Catholic education institutions, the time for seeking admissions from the respondent in relation to this issue was prior to or at the first instance proceedings before the Commission, and it was not permissible, pursuant to s 49(4) for the Full Bench to now deal with such issues.
16 The Full Bench found the fourth interlocutory application should be dismissed on grounds that it was not an issue which was relevant to the proceedings before the Full Bench.
17 In their reasons, the Full Bench observed that in the event the appeal was upheld either in full or in part, and if the proceedings were remitted to the Commission at first instance, then it may be possible for the appellant to bring some of his interlocutory applications, in those further proceedings, should that transpire.
The jurisdiction of the Industrial Appeal Court to hear an appeal from a decision of the Full Bench
18 A right of appeal from a decision of the Full Bench to the Industrial Appeal Court is a remedy given by statute, and its jurisdiction is limited. See Landsheer v Morris Corporation (WA) Pty Ltd [2014] WASCA 186 [45]  [55] (Kenneth Martin J), [32] (Le Miere J agreed).

19 There is no right of appeal to the court from any ground involving a question of fact, or on a question of law unless the ground is a ground which meets the criteria prescribed in s 90(1) of the Industrial Relations Act.
20 Section 90(1) provides an appeal lies to the court, in the prescribed manner, from any decision of the Full Bench:
(a) on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter; or
(b) on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or
(c) on the ground that the appellant has been denied the right to be heard,
but upon no other ground.
The appellant's grounds of appeal in the appeal to the Industrial Appeal Court
21 The appellant's grounds of appeal against the decision to dismiss the interlocutory applications are not clearly articulated. However, from the appellant's written submissions filed on 20 April 2022, it appears that his grounds are as follows.
Grounds 1 and 3 of the appeal
22 In ground 1, the appellant claims the court's jurisdiction to hear the appeal arises pursuant to s 90(1)(a) and (b) on a ground that appears to allege the Full Bench erred in its decision [in failing] to address areas in online lodgement of interlocutory applications, by a change in the system for lodgement of interlocutory proceedings at sometime between 2021 and 2022. This ground appears to relate only to the applications for discovery and arises from a claim made by the appellant at the hearing before the Full Bench that he had been unable to successfully lodge an application for production of documents to be dealt with by Commissioner Walkington. Transcript of proceedings on 25 February 2022, 3.

23 Ground 1 is not a ground of appeal in respect of which it could be found that the decision of the Full Bench acted in excess of jurisdiction or that its decision is erroneous in law within the meaning of s 90(1)(a) and (b) of the Industrial Relations Act.
24 In ground 3, the appellant claims the court's jurisdiction to hear the appeal arises pursuant to s 90(1)(c) (being a denial of the right to be heard) on a ground that appears to allege that the Full Bench allowed transcripts to be edited to the benefit of one party. At the hearing of the appeal, the appellant put a submission that this ground was the most relevant ground of appeal. His complaint appeared to be that 'ums' and 'ahs' were removed from the transcript of the proceedings before Commissioner Walkington by the editors of the transcript. The appellant, however, informed the court that he does not claim that there were errors in the transcript of the hearing of the four applications before the Full Bench on 25 February 2022.
25 In the absence of any error in the transcript of the hearing of the four interlocutory applications by the Full Bench, in particular a transcription error that is relevant to the decision to dismiss the interlocutory applications, there is no scope for an argument to be put by the appellant that he had been denied the right to be heard by the Full Bench in respect of each of the interlocutory applications.
26 In addition, grounds 1 and 3 are not grounds of appeal that are capable of being found to arise from the decision of the Full Bench to dismiss the interlocutory applications. At their highest, they appear to raise complaints about administrative matters which are not the subject of or relevant to the Full Bench's decision.
27 For these reasons, an appeal to the Industrial Appeal Court on ground 1 or ground 3 could not be found to be within the jurisdiction of the court in s 90(1) of the Industrial Relations Act.
Ground 2 of the appeal
28 In ground 2, the appellant claims the court's jurisdiction to hear the appeal arises pursuant to s 90(1)(b) and (c) on two grounds that appear to raise an argument that:
(a) the Full Bench made an error in the construction or interpretation of s 49(4) of the Industrial Relations Act by using the term 'in the first instance' [when referring to the proceedings before the Commission the subject of the appeal]; and
(b) the Full Bench denied the appellant a fair hearing on the right to be heard on the interlocutory applications.
29 The Full Bench's alleged error was not an error in the construction or interpretation of s 49(4) of the Industrial Relations Act.
30 The appellant's claim before Commissioner Walkington pursuant to s 29(1)(b)(ii) was properly referred to by the Full Bench as a first instance claim and as a claim that had been dismissed at first instance. In all appeals, it is common for an appellate body to refer to a person's claim which is the subject of the appeal as a first instance claim, the decision the subject of the appeal as the first instance decision, and to refer to the decisionmaker of the decision that is the subject of the appeal as the decisionmaker sitting at first instance.
31 It is also common to refer to the proceedings in which a decision was made that is the subject of an appeal as the proceedings at first instance. These terms are used for the purpose of simply identifying the proceedings and the relevant decision which are the subject of an appeal. Put another way, these terms identify the original proceedings and the original decision which are the subject of an appeal.
32 The appellant did not refer to any matter in his oral or written submissions that could properly found an argument that on the hearing of the interlocutory applications before the Full Bench on 22 February 2022, he was denied a fair hearing.
33 For these reasons, an appeal to the Industrial Appeal Court on ground 2 could not be found to be within the jurisdiction of the court in s 90(1) of the Industrial Relations Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Western Australian Industrial Appeal Court.

TS
Associate to the Honourable Justice Smith

31 JANUARY 2023