APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER APPL 3/2023 GIVEN ON 29 JANUARY 2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00391

DELIVERED : TUESday, 2 JULY 2024

FILE NO. : FBA 4 OF 2024 and fba 5 of 2024

Appellant

AND

Western Australian Municipal, Administrative, Clerical and Services Union of Employees, City of Kalamunda, Local Government, Racing and Cemeteries Employees Union (WA), Shire of Bridgetown Greenbushes, Shire of Carnamah, Shire of Dalwallinu, Shire of Goomalling, Shire of Halls Creek, Shire of Harvey, Shire of Kondinin, Shire of Laverton, Shire of Leonora, Shire of Murray, Shire of Nannup, Shire of Narembeen, Shire of Ravensthorpe, Shire of Sandstone, Shire of Three Springs, Shire of Victoria Plains, Shire of Wagin, Shire of Wandering, Shire of Waroona, Shire of Woodanilling, Shire of Yalgoo, Shire of Boddington, Shire of Bruce Rock, Shire of Dowerin

Respondents

Appellant

AND

Western Australian Municipal, Administrative, Clerical and Services Union of Employees, City of Kalamunda, Shire of Bridgetown Greenbushes, Shire of Carnamah, Shire of Dalwallinu, Shire of Goomalling, Shire of Halls Creek, Shire of Harvey, Shire of Kondinin, Shire of Laverton, Shire of Leonora, Shire of Murray, Shire of Nannup, Shire of Narembeen, Shire of Ravensthorpe, Shire of Sandstone, Shire of Three Springs, Shire of Victoria Plains, Shire of Wagin, Shire of Wandering, Shire of Waroona, Shire of Woodanilling, Shire of Yalgoo, Shire of Boddington, Shire of Bruce Rock, Shire of Dowerin, The Association of Professional Engineers, Australia (Western Australian Branch) Organisation of Employees (APEA)

Respondents

CatchWords : Industrial Law (WA) – Appeals against decision of the Commission – Whether the appeals raise a matter of such importance that, in the public interest, an appeal should lie – Whether the appeals involve substantial matters of law affecting jurisdictions – Whether there was a statutory obligation for the Commission to publish reasons – Whether the matters are of wider significance than the parties immediately concerned – Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA)

Industrial Relations Commission Regulations 2005 (WA)

Interpretation Act 1984 (WA)

Result : Appeal dismissed

Representation in FBA 4 of 2024:

Counsel:

Appellant : Mr N Ellery of counsel

First Respondent : Mr T Lettenmaier of counsel

Second Respondent : Mr K Trainer

Solicitors:

Appellant : MinterEllison

First Respondent : Fogliani Lawyers

Representation in FBA 5 of 2024:

Counsel:

Appellant : Mr N Ellery of counsel

First Respondent : Mr T Lettenmaier of counsel

Twenty-seventh

Respondent  : Ms T Rowlands

Solicitors:

Appellant : MinterEllison

First Respondent : Fogliani Lawyers

Case(s) referred to in reasons:

Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55

Fisher Catering Services Pty Ltd v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1997) 77 WAIG 611

Health Services Union of Western Australia (Union of Workers) v Director General of Health in right of the Minister for Health as the Metropolitan Health Service, the South West Health Board and the WA Country Health Service [2008] WAIRC 00215; (2008) 88 WAIG 543

Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Director General, Department of Education and Training [2010] WAIRC 00849; (2010) 90 WAIG 1517

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

McCorry v Como Investments Pty Ltd (1989) 69 WAIG 1000

Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265; (2006) 90 ALD 614

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Rainbow Coast Neighbourhood Centre Inc v Wood [2011] WAIRC 00821; (2011) 91 WAIG 1831

Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 562; (2014) 94 WAIG 775

The Civil Service Association of WA Incorporated v Department of Commerce [2013] WAIRC 000582; (2013) 93 WAIG 1339

The Director General, Department of Education v The State School Teachers’ Union of WA (Inc) [2011] WAIRC 00058; (2011) 91 WAIG 166

Case(s) also cited:

Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247

Reasons for Decision

THE FULL BENCH:

1         The Western Australian Local Government Association (WALGA) has appealed against two directions of the Commission requiring it to produce documents in proceedings in which it is a party. The relevant appealed directions are identical as are the grounds of appeal from the appealed directions.

2         The appeals are against discretionary decisions, and so are appeals from a ‘finding’ for the purpose of s 49(2a) of the Industrial Relations Act 1979 (WA). An appeal does not lie from the appealed decisions, unless, in the opinion of the Full Bench, the matters are of such importance that, in the public interest, an appeal should lie: s 49(2a).

3         These are our reasons for concluding that the appeals do not raise matters of such importance that, in the public interest, an appeal should lie, and, accordingly for dismissing both appeals.

Procedural History

4         The procedural history leading to the appealed directions being made is relevant to these appeals.

5         In the matter APPL 3 of 2023, the Western Australian Municipal, Administrative, Clerical and Services Union of Employees (WASU) applied under s 40 of the Act to vary the Municipal Employees (Western Australia) Award 2021 (ME Award). In the matter APPL 4 of 2023, WASU applied to vary the Local Government Officers’ (Western Australia) Award 2021 (LGO Award). It is not necessary to detail the nature of the variations sought in the s 40 proceedings, other than to note that there is considerable commonality in the variations sought in both matters.

6         WALGA is a party to both s 40 proceedings because a direction was made that WALGA be served with a copy of the applications: s 29B.

7         Before the s 40 proceedings were heard, and pursuant to directions programming the matters for hearing, WALGA filed an outline of the evidence of Nick Sloan. The outline of evidence contains 12 paragraphs in total. The first five paragraphs outline WALGA’s role and membership. Paragraphs 6 to 10, being the main substantive part of the outline, deal with a sector survey, purporting to summarise responses to the sector survey and annexing graphs and tables compiled by WALGA’s employees from the sector survey responses.

8         The outline of evidence said:

The Western Australian Local Government Association (WALGA) intends to call Mr Nick Sloan to give evidence in the proceedings. Mr Sloan is expected to give evidence about the following matters:

1. …Mr Sloan’s role as Chief Executive Officer for 4 years and 9 months at WALGA.

…

6. That WALGA conducted a sector survey from July 2023 via SurveyMonkey to collect the sector’s response to APPL 3 and 4 of 2023 made by the Western Australian Municipal, Administrative, Clerical and Services Union of Employees (WASU).

7. That the survey was completed by 79 local governments (as summarised at Attachment B), although the local governments did not necessarily complete all questions of the survey.

9         In essence, WALGA’s core reason for filing the outline of evidence was because it intended to call Mr Sloan as a witness at the hearing to present the compiled results of the sector survey as evidence in the s 40 proceedings. This would be evidence which goes to the interests of employers immediately concerned in the proceedings – a matter which the Commission is required under s 26(1)(c) to have regard to in the s 40 proceedings.

10      Foreseeably, the filing of Mr Sloan’s outline of evidence prompted WASU to foreshadow that it would seek ‘discovery of the survey results’ on which Mr Sloan’s evidence was based (survey documents). WASU’s intended application was raised at a directions hearing before Commissioner Walkington on 20 November 2023, and in a Minute of Proposed Orders it prepared for the purpose of that directions hearing.

11      At the directions hearing on 20 November 2023 for the matter APPL 3 of 2023, counsel for WASU submitted:

[W]e want WALGA to: “Disclose by way of discovery all documents relating to the sector survey”- that it conducted that’s referred to in Mr Sloan’s statement – “including the questions that were put, and unredacted individual responses received by WALGA from the local governments.”

Now, that is all discoverable, because it falls within the Peruvian Guano test for discovery. That is, it’s documents that we would like to put to Mr Sloan in cross-examination, which will either bolster the WASU’s case, or harm WALGA’s case, and we say, therefore, it’s relevant, and it should be discovered, so we’re not looking for broad discovery orders. We’re looking for discovery of quite particular documents which WALGA have set out in Mr Sloan’s outline of evidence in any event.

12      The learned Commissioner directed that the parties confer in relation to the discovery sought and indicated that she would consider whether to direct ‘discovery or production of the documents that are sought’ at the next directions hearing.

13      In-person conferral about discovery did not occur. However, between 20 November 2023 and 17 January 2024, WALGA and WASU’s solicitors exchanged correspondence about WASU’s foreshadowed application. This included:

a. a letter to WALGA dated 20 November 2023 confirming the documents WASU was seeking informal discovery of; and

b. a series of emails dated 15 December 2023, 2 January 2024 and 16 January 2024 addressing, amongst other things, the relevance of the survey documents.

14      At the time of the 20 November 2023 directions hearing, WALGA was acting as agent in the proceedings for a number of individual local government respondents. WASU raised questions about whether WALGA’s acting in the proceedings in its own right and as agent for individual local governments created a conflict of interest situation. WALGA subsequently ceased to act for several individual local government respondents.

15      WALGA submitted in the course of the appeal that this was the original reason for WASU seeking the survey documents, and so once WALGA ceased acting for the individual local government respondents, the imperative for seeking the survey documents was gone, or that it changed. In fact, WASU’s reference to the documents being discoverable ‘within the Peruvian Guano test’ invoked the well-known, broad test, named after the case in which it was enunciated, Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55, that a document is discoverable if it is reasonable to suppose that it contains information which may either directly or indirectly enable the party seeking discovery to either advance their own case or damage their adversary’s case (which includes documents which may fairly lead to a train of inquiry which may have either of these two consequences) (60, 63). WASU’s application was not tied to WALGA’s status as agent for individual local governments. WASU’s basis for seeking the survey documents remained the same after WALGA ceased acting as agent for several local government respondents.

16      The next directions hearing was held on 17 January 2024 in APPL 3 of 2023. WASU pressed for orders contained in a minute of proposed orders, including, relevantly, an order for WALGA to:

[F]ile all documents relating to its ‘sector survey’ concerning proposed amendments to the Award. This includes:

a. The survey documents distributed by WALGA to local governments concerning the proposed amendments to the Award.

b. The unredacted, individual responses received by WALGA from local governments.

17      WASU’s counsel submitted that such an order could be made under either reg 20 or reg 21 of the Industrial Relations Commission Regulations 2005 (WA), but in any event, in reliance on s 27(1)(o) of the Act.

18      WALGA opposed the proposed orders. It asked the Commission not to deal with WASU’s application immediately, but rather to allow time for the parties to file written submissions in support of and in opposition to the proposed orders, and to list the matter for a further hearing to fully ventilate their arguments or determine the application on the papers.

19      WALGA submitted that reg 20(7) prohibited the Commission from making an order for discovery unless the Commission decides that the circumstances of the proceedings make it fair and just to make the order. WALGA conceded at the hearing of the appeals that reg 20(7) was inapplicable.

20      WALGA did not otherwise raise any objection to the Commission dealing with WASU’s application on the basis it did not comply with the Regulations.

21      At one stage during the 17 January 2024 directions hearing, the Commissioner indicated she was inclined to give WALGA additional time to make submissions. However, after WASU drew the Commissioner’s attention to its letter to WALGA dated 20 November 2023 confirming WASU’s request for discovery, the Commissioner declined WALGA’s request. She said:

I consider that there’s been some notice of this request for discovery, and an opportunity to provide submissions, and that’s been done today, and I’ve considered what has been proposed. I’m not inclined to provide a further process, because, essentially, I don’t think that will provide any further information any greater than what’s been put today.

22      A directions hearing was then convened in APPL 4 of 2023 some 10 minutes following the conclusion of the directions hearing in APPL 3 of 2023. WALGA advised the Commission that its position in relation to WASU’s proposed orders was the same as for APPL 3 of 2023.

23      In both s 40 proceedings, directions were relevantly made on 17 January 2024 containing an error, in that the directions referred to the orders being by consent. Corrected directions were then issued on 27 January 2024 in these terms:

WHEREAS on 23 January 2024, the Commission issued directions in this matter: [2024] WAIRC 00027 [and [2024] WAIRC 00028];

AND WHEREAS on 25 January 2024, the Western Australian Local Government Association (WALGA) notified the Commission that at the hearing on 17 January 2024, it had opposed the directions sought and that the Direction [2024] WAIRC 00027 [and [2024] WAIRC 00028] issued was not “by consent” as described;

NOW THEREFORE the Commission notes the error in the direction issued and now pursuant to the powers conferred under the Industrial Relations Act 1979 (WA) (the Act) and hereby directs:

1. THAT the Direction [2024] WAIRC 00027 issued on 23 January 2024 be vacated.

…

3. THAT before 29 January 2024, and in accordance with sections 27(1)(o) and 27(1)(v) of the Act, WALGA shall file all documents relating to its ‘sector survey’ concerning proposed amendments to the Municipal Employees (Western Australia) Award 2021 (Award). This includes:

(a) The survey documents distributed by WALGA to local governments concerning the proposed amendments to the Award.

(b) The unredacted, individual responses received by WALGA from local governments.

24      WALGA appeals the Commission’s directions in both s 40 proceedings. It asks the Full Bench to:

a. allow the appeals on the basis that the matters raised by the appeal are in the public interest;

b. uphold the appeals; and

c. quash the relevant directions.

25      There are nine grounds of appeal, in each of the appeals. The grounds of appeal overlap and are repetitive.

Whether appeals raise a matter of such importance that, in the public interest, an appeal should lie?

26      The appealed decisions were procedural decisions which did not finally decide, determine or dispose of the s 40 applications. It is agreed that the appealed decisions are therefore ‘findings’ as defined in s 7 of the Act.

27      No appeal lies from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie (the public interest test): s 49(2a).

28      The principles that apply to the Full Bench in forming an opinion as to whether the matter is of such importance that in the public interest an appeal should lie, are well established. In Rainbow Coast Neighbourhood Centre Inc v Wood [2011] WAIRC 00821; (2011) 91 WAIG 1831 the Full Bench at [24], observed that the Full Bench in Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873 held:

[T]hat the words ‘public interest’ are not to be narrowed to mean ‘special or extraordinary circumstances’. An application may involve circumstances which are neither special nor extraordinary. It may involve circumstances which, because of their very generality, are of great importance in the public interest. Each matter will be a question of impression and judgment whether the appeal has the required degree of importance. Also important questions that may have effect 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: Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247 (Ritter AP) [13] – [14].

29      WALGA submitted that the appeals meet this test because they involve:

a. substantial matters of law affecting jurisdiction;

b. conflict between inconsistent decisions which need to be resolved;

c. questions concerning the content of the rules of procedural fairness; and

d. a wider significance beyond the present matter.

Do the appeals involve substantial matters of law affecting jurisdiction?

30      WALGA says that in making the appealed directions, the Commissioner ‘exercised powers in a way that was outside of or inconsistent with the Commission’s powers under the IR Act and therefore outside its jurisdiction’. More precisely, WALGA alleges that the Commission made the appealed directions in a manner that was inconsistent with the conditions for exercise of power under s 6(ag), s 26(1)(a), s 27(1)(o), s 27(1)(v) and s 35 of the Act, and reg 20 of the Regulations.

31      We understand WALGA to contend that the appealed directions involved jurisdictional errors.

32      It is therefore necessary to consider whether the grounds of appeal relying on the above legislative provisions raise matters involving jurisdictional error.

Commission to act according the substantial merits – s 26(1)(a)

33      Jurisdictional error is said to arise because the Commission acted without complying with s 26(1)(a) of the Act.

34      Section 26(1)(a) requires the Commission, in the exercise of its jurisdiction under the Act to

[A]ct according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms…

35      The section is not a source of jurisdiction, but a statutory direction as to the manner in which the jurisdiction elsewhere vested is to be exercised. The section does not free the Commission from its duty to apply the general law in deciding issues raised. The extent to which s 26(1)(a) can have a substantive impact on the way the Commission exercises its jurisdiction will vary depending on the particular function, jurisdiction or power being exercised: Health Services Union of Western Australia (Union of Workers) v Director General of Health in right of the Minister for Health as the Metropolitan Health Service, the South West Health Board and the WA Country Health Service [2008] WAIRC 00215; (2008) 88 WAIG 543 at [163], [167], [171].

36      WALGA relies on the Honourable Acting President Smith’s conclusion in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 562; (2014) 94 WAIG 775 at [62] that non‑compliance at first instance with s 26(3) of the Act invalidated the first instance decision. Section 26(3) says:

Where the Commission, in deciding any matter before it proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission must, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information.

37      In finding that a breach of s 26(3) is not a mere breach of procedural fairness, but invalidates the relevant decision, her Honour at [63] referred to the principle explained by Brennan CJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [41]:

When the validity of a purported exercise of a statutory power is in question, the intention of the Parliament determines the scope of a power as well as the consequences of non-compliance with a provision prescribing what must be done or what must occur before a power may be exercised. If the purported exercise of the power is outside the ambit of the power or if the power has been purportedly exercised without compliance with a condition on which the power depends, the purported exercise is invalid.

38      In Project Blue Sky, McHugh, Gummow, Kirby and Hayne JJ said that the test for determining the validity of the exercise of a statutory power is to ask whether it was a purpose of the legislation that an act done in breach of the relevant provisions should be invalid. They said at [91]:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition….

39      WALGA did not attempt to demonstrate that there was a legislative purpose to invalidate any act that failed to comply with s 26(1)(a) so as to meet the Project Blue Sky test of invalidity. To determine whether the appeal raises matters going to jurisdiction, we need to take a step back and consider how it is alleged that s 26(1)(a) was not complied with.

40      When a party is aggrieved by a decision of the Commission, that grievance will often take the form of an assertion that the decision is not in accordance with the substantial merits, or not equitable or not in good conscience. That is not really saying anything more than that the party disagrees with the outcome. If the party is right, the decision involves ‘mere error’.

41      Jurisdictional error is not directed at the outcome as such, but rather at the means or process by which the outcome was arrived at: has the Commission exceeded the limits of the authority conferred on it to decide something? Not all errors in decision making will be jurisdictional errors.

42      The tenor of WALGA’s appeal is not simply that the appealed directions are themselves not in accordance with the substantial merits, or not fair, etc. Rather, WALGA says that where the Commission did not conduct a fulsome process for hearing and determining WASU’s applications, the Commission could not have engaged with the substantial merits as the Act requires it to. WALGA says there are several things about the conduct of the directions hearings and the making of the appealed directions which indicate the Commission did not engage with the substantial merits:

a. WALGA’s application to program WASU’s application was denied.

b. WALGA was therefore not given an opportunity to address the merits.

c. The Commissioner did not expressly have regard to the terms of reg 20 and reg 21 dealing with discovery, inspection and production of documents.

d. When the appealed directions were originally issued, they contained an error, referring to the directions as being ‘by consent’.

e. The Commissioner did not provide reasons for decision, even after being requested to do so, other than brief high-level reasons given orally during the directions hearing in APPL 3 of 2023.

43      WALGA says all these factors, in combination, reflect the overarching fact that the Commission at first instance did not grapple with WALGA’s submissions, pay them any real regard, or give them any real weight.

44      Does this amount to jurisdictional error?

45      The High Court recently gave guidance on when an error will be jurisdictional in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (citations omitted):

2. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, it is “in law ... no decision at all” and is in that sense “void”.

3. Because an express or implied condition of a statutory conferral of decision‑making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

4. A statute which contains an express or implied condition of a conferral of decision-making authority is not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition. Only by construing the statute so as to understand the limits of the statutory conferral of decision‑making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision‑making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force).

5. Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made. Given the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision, it is impossible to divine a rigid classification of the errors that constitute jurisdictional errors. There are no bright lines to be drawn – “[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute”.

6. In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.

7. In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision‑making process is ordinarily to be interpreted as incorporating such a “threshold of materiality” in the event of non‑compliance.

…

14. The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

46      The first question is whether an error exists? In the circumstances of this matter, this question is essentially to ask whether the Commissioner failed to act in accordance with s 26(1)(a) by declining WALGA’s request to program WASU’s applications, in order for it to make more fulsome submissions?

47      WALGA was on notice from 20 November 2023 that the Commissioner intended to consider whether to make a direction for discovery or production at the directions hearing on 17 January 2024. Further, by email dated 2 January 2024, WASU informed WALGA that it continued to press for ‘informal discovery’ of the survey documents, and that it considered those documents were relevant ‘as they will enable WASU to better understand and test Mr Nick Sloan’s evidence when he appears in the witness box. The request relates to what is set out in [6] to [10] and Attachments A, B, C and E of Mr Sloan’s outline of evidence’ (AB 249).

48      Having given WALGA notice on 20 November 2023, and an opportunity to be heard in relation to WALGA’s proposed orders on 17 January 2024, the Commission was not obliged to provide WALGA with any further opportunity by way of filing written submissions or programming a further hearing. It was both fair and reasonable for the Commissioner to have declined to further defer consideration of WASU’s application.

49      WALGA was represented at the directions hearings on 17 January 2024 by counsel. In the course of arguing for the programming orders WALGA sought in APPL 3 of 2024, counsel addressed the substance of WALGA’s grounds for opposing the orders sought. Counsel submitted:

[T]he issues in relation to discovery as we see it for this document, or this class of documents, are primarily as follows. We say it’s simply not relevant. We don’t see how it can be relevant or advance any of the actual issues in the proceedings either by advancing the case of the union or damaging our case.

The union brings a claim for various amendments to the award. That’s an industrial claim, and it has to be assessed on its merits. You’ve had filed outlines of evidence from the various witnesses that WALGA intends to call, which goes to various matters, and one of those, obviously, is Mr Nick Sloan, so WALGA will lead that evidence. That evidence will persuade you of whatever it persuades you of, and similarly, the union will need to lead their evidence, and you’ll need to make an assessment based on that.

What lies behind the survey and the survey reports that Mr Sloan has referred to in his outline, how can that take the matter any further, we say? What relevance is it? How does it change anything? You’ll have the evidence you have before you of the various witnesses, some of whom are from various local governments, and you’ll be persuaded or not by that evidence. What particular local governments said in response to a particular question about a particular aspect of the claim, we say, it just doesn’t go anywhere.

If there’s some other agenda, if for example, the union’s case is that Mr Sloan is dishonest, or misleading the Commission, then that’s a different matter, but I can’t see how it can be that sort of a case. It’s an industrial claim for various amendments to the awards, and what relevance would there be if there was that sort of allegation made? It just doesn’t go anywhere.

It is the position that when local governments were surveyed, they understood that they were providing the feedback on a confidential basis, and that the specific individual responses wouldn’t be released to other parties, so if that confidentiality is not respected - and we don’t dispute that the Commission has the power to make the order, but if that confidentiality that was anticipated by those local governments is not respected, then the capacity of WALGA to get proper feedback from members, and provide an informed position to the Commission is more limited.

The other issue that was primarily raised, as we understood it, on the last occasion we were before you, and raised as a reason for discovery being necessary, was an allegation about conflict of interest, that there were different parties, that WALGA had a different position, potentially, to some of those respondents, and that the survey and the information behind the survey would allow that issue to be properly clarified and resolved. So, since that issue was raised, as you will be aware, Commissioner, WALGA has ceased acting for various local governments.

The local governments who are named respondents have filed their own individual responses, so you have that formal position, so there’s no uncertainty or lack of clarity around the position of those local governments who have filed a response. That’s clear. The conflict issue, which was much debated and discussed last time, but not raised at all today, has been dealt with. It’s no longer an issue, so now how is that relevant? Why is that survey response relevant when that issue has been entirely dealt with or disposed of? So that just has fallen away.

The other issue that that turn of events raises is that it may be the case that some of the data that the WASU now seeks for discovery will be responses by local governments who WALGA does not now represent in these proceedings, so we can’t speak for them. We don’t speak for them. That issue has arisen because of the issues that were raised by the [Australian Services Union] on the last occasion. They need to be heard. Their interests are directly affected if their confidential responses, which we say they understood were confidential, are to be disclosed to union, and they’ve not been heard on that, and we can’t speak for them because we can’t represent them.

50      Counsel noted that if the orders WALGA proposed were made, it would have a chance to ‘fully articulate’ each of those issues.

51      The Commissioner’s comments as to why she proposed making the appealed directions, while brief, nevertheless indicate that she understood the substance of WALGA’s grounds for objection, as she referred expressly to the submissions provided and did not think a further process would provide ‘greater’ information.

52      To then decline to program the filing of written submissions, and effectively defer determining WASU’s application was reasonable and unremarkable, in the context of the prior procedural history of the matter. It is simply wrong to say WALGA was not given an opportunity to address the merits. It did have the opportunity. It chose how it utilised that opportunity.

53      A fundamental element of the error WALGA relies upon is not made out. The error does not exist.

54      Even if error was shown, and the Commission was obliged to provide WALGA with a further opportunity to ‘fully articulate’ its grounds for opposing WASU’s applications, no different outcome could realistically have resulted. WALGA could not realistically have succeeded in resisting an order for production of the sector survey documents, for the following reasons.

55      On the issue of relevance, WALGA’s main argument was that relevance could not be shown because the individual local governments themselves would file responses in the proceedings which would overtake the sector survey responses as evidence of those local government’s position on the questions asked in the survey.

56      WALGA presented the compiled sector survey results as reflecting the views of 79 local governments affected by the s 40 proceedings. It is obvious that those views are a relevant consideration, at least because s 26(1)(c) requires the Commission to have regard to the interests of the parties immediately concerned.

57      Having filed the outline of evidence foreshadowing that evidence would be led about the sector survey results as compiled and presented by WALGA, disclosure of the source documents informing the results was necessary in order for the hearing to be conducted fairly, equitably and in accordance with the substantial merits of the case. The responses to the survey and any documents used to produce the compiled results are self-evidently relevant.

58      This was not a case where WASU was required to establish relevance. By proposing to introduce the compiled results of the sector survey into evidence, WALGA practically conceded relevance. It had to establish that the documents were not relevant, or that, even if relevant, the Commission ought not exercise its discretion to order the documents’ production.

59      The filing of responses in the s 40 proceedings by individual local governments does not detract from the self-evident relevance of the sector survey documents. The local government respondents to the s 40 proceedings, are a different sub-set of the local governments affected by the s 40 proceedings, compared with the sub-set who responded to the survey.

60      Seventy-nine local governments responded to the sector survey. Not all of the questions in the sector survey were about matters that affected all local governments. For example, some questions were about matters that could only affect regional local governments. Also, many local governments are likely to have industrial agreements in place which override the award terms which were the subject of survey questions. These considerations will be relevant to what weight should be given to the survey results.

61      The filing of responses by individual local governments in the s 40 proceedings would not have overcome gaps between the compiled survey results, and a meaningful understanding of the interests of individual local governments affected by the s 40 proceedings. It additionally demonstrates why fairness and equity required the documents be disclosed.

62      There was simply no merit to WALGA’s resistance to discovery or production of the survey documents on the grounds of relevance.

63      As to the confidentiality considerations, WALGA rightly concedes that this was not a reason of itself not to order production or discovery of otherwise relevant documents. It is a factor which might be relevant to the exercise of the Commission’s discretion. Confidentiality considerations might also inform the form of orders made.

64      The Commissioner at first instance accepted WALGA’s statement from the bar table that the survey was answered confidentially. She asked counsel ‘is there any way that the confidentiality [of the WALGA survey] can be preserved…?’ In making the orders, she also said:

I would add that this information is to remain confidential to the representatives of the parties and the officers of the unions so that that will then mean that there won’t be any distribution further than the people who need to know it for these proceedings.

65      In view of the important nature of Mr Sloan’s foreshadowed evidence, and the manner in which it was to be presented, namely, as compiled survey results, confidentiality considerations could not realistically have resulted in WALGA succeeding in its opposition to discovery or production of the documents. 

66      WALGA submitted that because the directions require the unredacted documents to be produced, the names of the individuals who completed the surveys on behalf of the local governments would be revealed. It was said that this would expose those individuals’ interests to officers of the union who those individuals may regularly deal with. This submission is inconsistent with the evidence. The outline of evidence sets out the survey questions, which make it clear that the survey questions are asking for a response about the local government’s position, not the position of the individual who completes the survey on behalf of the local government.

67      WALGA’s third objection to discovery or production of the survey documents was on the basis that such an order would hinder WALGA’s ability to consult with members and advocate for them. This was not elaborated on during the directions hearing on 17 January 2024, but submissions on appeal reveal that WALGA’s position invoked then Acting Senior Commissioner Scott’s reasoning in The Civil Service Association of WA Incorporated v Department of Commerce [2013] WAIRC 000582; (2013) 93 WAIG 1339 (CSA):

25. Given that the parties to the awards regularly negotiate, it would be contrary to the interests of the parties and to the public interest generally, for them to be discouraged from a thorough analysis and frank expression of views within their internal documents for fear that those documents may be disclosed to the other side as part of a subsequent litigation. In those circumstances, the views of the Full Bench in ALHMWU v The Western Australian Hotels and Hospitality Association Incorporated and others are most apposite. Therefore, internal documents prepared by the parties as part of their considerations for the resolution of this claim which led to the parties entering into the MOU, should not be disclosed to the other side in respect of arbitration of any matter arising from that dispute. It would be entirely contrary to the objects of the Act to do so. As Mr Matthews for the respondents says, they ought to be treated as analogous to legal professional privilege. All of the documents contained within the list relate to the respondents’ internal considerations of the resolution of the two applications, whether they are internal documents within the departments and agencies, documents between those agencies or documents prepared for consideration by a subcommittee of Cabinet.

26. The administration of justice, but more particularly, the settlement of industrial disputes and thereby the public interest, would be impaired by the disclosure of documents which have been prepared as part of the process which lead to the settlement of a substantive part of the dispute between the parties.

68      The CSA matter involved an application to amend two public sector awards. The parties made a Memorandum of Understanding (MOU) adjusting salaries of specified callings for subsequent enterprise agreements. The MOU also identified issues that remained unresolved, but which were, subsequently, resolved by agreement. The MOU was attached as a schedule to orders reflecting the parties’ agreement made by the Public Service Arbitrator. 

69      The CSA then applied for orders varying awards in accordance with the parties’ agreement as reflected in the MOU. The employer respondents objected, saying that their agreement reflected in the MOU was not an agreement to vary the awards. The respondents maintained that the MOU was itself the resolution of the relevant industrial matter.

70      The Arbitrator had to determine whether there was any impediment to the awards being amended. The CSA applied for discovery, production and inspection of certain internal documents exchanged between the respondents including the Department of Premier and Cabinet, about the CSA’s claims and work value reports which informed the respondent’s responses to the CSA’s claims and the development of the MOU.

71      WASU’s application concerning the survey documents is distinguishable from the circumstances in the CSA case. First, in this case, WALGA has itself put the survey documents into play, by referring to WALGA’s compilation of the survey results in the outline of evidence. To the extent that the reasoning in CSA draws from an analogy with legal professional privilege, this would be a circumstance where any such privilege was waived.

72      Second, the survey documents are not WALGA’s internal documents as a respondent in the proceedings, nor internal documents between WALGA and other respondents. WALGA has been at pains to point out that it is a party to these proceedings in its own right. The survey results it has compiled represents the means by which it has formed its own position in the proceedings. But it surveyed its members as members, not in their capacity as respondents in the proceedings.

73      Accordingly, the Commissioner at first instance was not bound to follow CSA. Indeed, the fact that WALGA was proposing to rely on the compiled survey results in its evidence is a compelling reason not to follow CSA.

74      Finally, WALGA’s objection on the basis that local governments themselves ought to be afforded the opportunity to be heard also fails the materiality test. That is for the simple reason that, at the end of the day, the local government respondents did have the opportunity to be heard in relation to the proposed orders at the directions hearing on 17 January 2024. Several respondents, represented by Mr FitzGerald at the directions hearing, did not oppose the orders WASU sought. Other than the Shire of Kondinin, who joined in WALGA’s submissions, none of the local government respondents opposed WASU’s application, nor appealed the directions, nor sought to be heard in this appeal. Although not all local governments surveyed are respondents in the s 40 proceedings, if any local government opposed the orders and had sound grounds for doing so, we would expect to have heard from them. The fact that we have not indicates that any further opportunity would not have produced any opposition or resulted in any different outcome. 

75      Ultimately, WALGA simply did not have a sound basis for resisting production of the survey documents. Any denial of the opportunity to more fully articulate its objections was immaterial. Each of the components of the conduct of the matter which WALGA relies on to show that there was jurisdictional error, was immaterial.

76      Consequently, the conduct of the matter cannot properly be characterised as involving substantial matters of law affecting jurisdiction or jurisdictional error. The public interest test is not met by grounds of appeal relying on non-compliance with s 26(1)(a).

Powers of the Commission - s 27(1)(o) and s 27(1)(v)

77      These sections set out the Commission’s powers to do certain things in relation to matters before it. They are in the following terms:

27. Powers of Commission

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

…

(o) make such orders as may be just with respect to any interlocutory proceedings to be taken before the hearing of any matter, the costs of those proceedings, the issues to be submitted to the Commission, the persons to be served with notice of proceedings, delivery of particulars of the claims of all parties, admissions, discovery, inspection, or production of documents, inspection or production of property, examination of witnesses, and the place and mode of hearing; and

…

(v) generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter.

78      All that needs to be said in relation the grounds of appeal which rely on these sub-sections, is that they do not concern the limits of the statutory authority of the Commission to decide what it did. These grounds take aim at the outcome and involve allegations of mere error, not errors going to the Commission’s jurisdiction. These grounds therefore do not meet the public interest test for a grant of leave to appeal.

The objects in s 6(ag)

79      WALGA’s appeal ground 5 alleges the appealed directions were contrary to s 6(ag).

80      Section 6 contains the Act’s objects. Object 6(ag) is:

to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises.

81      The Act’s objects may be indicative of what matters are relevant considerations in the exercise of a discretion. They may also inform the correct construction of other provisions of the Act: see Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed [2014]) (Pearce and Geddes) [4.51]; Interpretation Act 1984 (WA) s 18. The objects do not command a particular outcome of the exercise of a discretionary power under the Act.

82      Appeal Ground 5 does not involve matters of law affecting jurisdiction.

Section 35(1) – Failure to publish reasons for decision

83      In general, inadequacy of reasons for a decision does not give rise to jurisdictional error, given that jurisdictional error is concerned with whether the decision maker had the authority to decide what it did, and whether it properly understood the nature and limits of its jurisdiction. For example, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (Ex parte Palme), Gleeson CJ, Gummow and Heydon JJ said at [48]:

The visa cancellation decision may be reviewed in this court for jurisdictional error. Such error may be found from what is disclosed by reasons provided under s 501G(1)(e). Failure to provide reasons may also be reviewed in this court and compliance by the minister with the statutory duty may be ordered. The reasons then provided may furnish grounds for prohibition under s 75(v) in respect of the visa cancellation decision. But what is not provided for is for a prosecutor, as in this case, to bypass that earlier step utilising mandamus, and to impeach the visa cancellation decision itself for want of discharge of the duty to provide reasons. There is, as was pointed out in argument, a critical distinction between failure to comply with s 501G(1)(e) and using that failure to conclude that the visa cancellation decision is flawed by jurisdictional error.

84      This suggests that the failure to give reasons in that case, despite there being a statutory duty to do so, may have involved error, but not one going to jurisdiction.

85      Similarly, in Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265; (2006) 90 ALD 614, Allsop J said at [23] - [24] that a criticism about reasons for decision being high level or vague was essentially about ‘the adequacy of the reasons. This is not jurisdictional error’.

86      However, it remains possible that under a particular statutory scheme, a failure to give reasons or to publish written reasons may constitute jurisdictional error. In Ex parte Palme, McHugh J, who reached the same result as the majority, said at [55]:

Jurisdiction is the authority to decide. It is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision. Nevertheless, it is always possible that a statutory scheme has made the giving of reasons a condition precedent to the validity of a decision. If it has, a decision that does not give reasons will be made without authority.

87      No reasons for the appealed directions were published. For this to amount to jurisdictional error:

a. there must be a statutory obligation to publish reasons; and

b. that statutory obligation, properly construed, must be a condition precedent to the validity of the decision.

88      WALGA submits that s 35(1) imposes a statutory obligation to publish reasons in the circumstances before the Commission at first instance.

89      Section 35 says:

35. Decision to be first drawn up as minutes

(1A) In this section —

final decision means a decision, determination or ruling in proceedings that finally decides, determines or disposes of the matter to which the proceedings relate.

(1) Subject to subsection (4), a final decision must, before it is made, be drawn up in the form of minutes which must be handed down to the parties concerned and, unless in any particular case the Commission otherwise determines, its reasons for decision must be published at the same time.

(1AB) Subsection (1) does not apply to an order made for the purposes of section 27(1)(a) or an order or declaration made under section 32(8).

(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 are, at a time fixed by the Commission, 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 the final decision is made in the terms of the minutes.

(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 prescribed in this section are inappropriate or unnecessary.

90      Where s 35(1) is triggered, the Commissioner must publish reasons for decision unless the parties consent to waiving that requirement, or the Commission otherwise determines.

91      WALGA says the appealed directions were ‘final decisions’ for the purpose of s 35(1A) because:

a. they were decisions within the meaning of that word as defined in s 7, as including an award, order, declaration or finding; and

b. they finally decided, determined or disposed of WASU’s application for discovery or production of documents.

92      Section 7 defines ‘decision’ to mean ‘includes award, order, declaration or finding’.

93      ‘Finding’ is also defined in s 7 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.

94      WALGA relies on observations made by Anderson J, who was in the minority, in the Industrial Appeal Court decision Fisher Catering Services Pty Ltd v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1997) 77 WAIG 611 (Fisher Catering) at 612 for the proposition that a ‘decision’ is a final dispositive act having ultimate operation and contained in an order of the Commission in a document.

95      Fisher Catering does not advance WALGA’s argument that the appealed decisions are ‘final decisions’ under s 35(1A). In Fisher Catering, the issue was whether there was a ‘decision’ for the purpose of the s 90 right of appeal to the Industrial Appeal Court. In that case, reasons for decision were delivered, but no formal award, order or declaration had issued, nor had s 34(1), s 35 and s 36(a) of the Act been complied with.

96      In the course of Anderson J’s reasons, his Honour observed that the word ‘decision’ in s 90 need not be used in the same sense as in s 34 and s 35: at 612. Indeed, his Honour contemplates a clear distinction between the use of the word ‘decision’ as defined in s 7, to include any finding, and the narrower sense used in s 34 to s 36, and a mid-way meaning not as narrow as in s 34 and not as wide as the definition in s 7 for the purpose of s 90.

97      Justice Anderson was ultimately of the opinion that McCorry v Como Investments Pty Ltd (1989) 69 WAIG 1000 did not stand for the proposition that a decision under s 90 is not a ‘decision’ unless it is a decision in respect of which all of the requirements of s 34, s 35 and s 36 of the Act have been complied with. His Honour considered ‘there is something to be said for the view that an extended definition should be given to the word decision in s 90(1)’ (613).

98      Justice Scott observed the circularity in the Act’s definitions of ‘decision’ and ‘finding.’ His Honour’s view was that the definition of ‘finding’ is sufficiently wide to include any interlocutory ruling which disposes of an interlocutory matter. His Honour observed at 614 that the provisions of the Act concerning the form of a decision, that is, s 34, s 35 and s 36, would have become operative ‘[h]ad the Commission in Court Session finally resolved the issue before it for determination, (namely, the issue of the award sought by the applicant)’.

99      Justice Scott ultimately reached the view that the definition of ‘finding’ was not sufficiently wide to encompass the matters the subject of the grounds of appeal, being preliminary points of jurisdiction (614).

100   Justice Parker agreed at 616 that the word ‘decision’ in s 90 should be read more widely than a decision in the form of an award, order or declaration within the meaning of s 34(1). His Honour observed that s 24(1) may explain the inclusion of ‘finding’ in the definition of ‘decision’ but that there was possibly an oversight in the drafting of the Act, in that ‘finding’ has been defined more extensively than the provisions of s 24(1) require. His Honour ultimately concluded that the matters identified in the grounds of appeal were not themselves findings, nor a decision from which an appeal could lie.

101   Fisher Catering shows that the word ‘decision’ does not have the same meaning in all instances where it is used in the Act.

102   In The Director General, Department of Education v The State School Teachers' Union of WA (Inc) [2011] WAIRC 00058; (2011) 91 WAIG 166, Commissioner Beech observed at [78] – [79]

78. In my view, and with respect, there is an inherent contradiction between the two arguments of the appellant which say firstly that the order under appeal is a finding and secondly that the order has finally disposed of the matters to which the proceedings relate. Both of these propositions cannot be correct. If the order does dispose of the matters before the Commission in that further proceedings on the matters before the Commission are rendered nugatory, then the order is not a finding but a final order. If the order is indeed a finding, then for that reason alone it does not finally dispose of the matters to which the proceedings relate.

79. The matters to which the proceedings relate are to be determined by reference to the Notice of Application and any answer or counter proposal, and any amendments or variations to those documents.

103   Acting President Smith, with whom Senior Commissioner Scott agreed, did not address the question of whether the order appealed from was a ‘finding’, but proceeded on the basis that it was, necessitating leave to appeal [64]. Key to her Honour upholding the appeal, was her Honour’s conclusion that the Commission’s order at first instance impermissibly determined the matter in dispute before the Commission, beyond the power to make interim orders conferred by s 44(8)(d). This underscores the important distinction made in the Act between decisions which finally decide, determine or dispose of matters to which the proceedings relate, and decisions which are interim, interlocutory, temporary, procedural and facilitative.

104   WALGA’s assertion that s 35(1) applies to the appealed decisions, being ‘findings’, simply ignores the plain text of s 35(1A) which limits the application of s 35(1) to decisions, findings or rulings etc that ‘finally determines or disposes of the matter to which the proceedings relate.’ Simply substituting the s 7 definitions of ‘decision’ and ‘finding’ in s 35(1A) creates a clear inconsistency which cannot have been the legislative intent. The words at the end of s 35(1A) show the ‘contrary intention’ which displaces the presumptive use of the defined terms (Pearce and Geddes [6.67]).

105   The matters to which the proceedings relate are the s 40 applications to vary the awards. The appealed directions do not finally decide, determine or dispose of those matters. Accordingly, the appealed directions are not ‘final decisions’ for the purpose of s 35(1A) and the statutory requirement to publish reasons does not apply to them.

106   In the absence of a statutory requirement to publish reasons, the failure to do so cannot give rise to jurisdictional error.

Regulation 20’s procedural requirements for discovery, production and inspection of documents

107   Appeal ground 6 asserts that the provisions of reg 20 conditions the exercise of the Commission’s powers relevant to the appealed directions.

108   WALGA says, therefore, that this is another matter of law which goes to the Commission’s jurisdiction.

109   The appeal ground is without merit. The appealed directions are orders for production of documents, not orders for discovery. Regulation 20 does not apply.

110   In any event, as WALGA properly conceded, the Commission is empowered by s 28 to exercise the powers conferred by s 27 notwithstanding that the procedures prescribed under the Act have not been complied with. As the relevant parts of reg 20 are merely procedural, any noncompliance cannot raise matters of law going to the Commission’s jurisdiction.

Does the appeal involve the resolution of a conflict between inconsistent decisions?

111   An appeal will meet the public interest criteria if the issues raised in the appeal involve the resolution of a conflict between inconsistent decisions: Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172 at [27]. That is, where there are two or more decisions which potentially bound the decision maker at first instance, and those decisions espouse different or conflicting principles, it is in the public interest that the conflict be resolved by a higher court or tribunal for clarity in future matters.

112   WALGA has not identified conflicting or inconsistent decisions which require resolution in this sense. It just says that the Commissioner’s decision conflicts with the CSA decision. That might give rise to a ground of appeal, but it is not a ground of appeal which engages the public interest test.

Does the matter involve substantial questions concerning the application of procedural fairness?

113   In Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Director General, Department of Education and Training [2010] WAIRC 00849; (2010) 90 WAIG 1517 (LHMU), the Full Bench granted leave to appeal against a finding, saying:

68. In our opinion the matter, that is, the subject matter of the appeal, is of such importance that, in the public interest, an appeal should lie. The appeal raises questions concerning the content of the rules of procedural fairness in a conference convened under s 44 of the Act. It is in the public interest that an appeal should lie when the appeal raises substantial questions concerning the content of the rules of procedural fairness to be observed by the Commission before making orders under s 44(6)(ba)(i) of the Act requiring a union to cease industrial action. We find that the appeal not only raises substantial questions but should succeed if the Full Bench determines that an appeal should lie.

69. The importance of the matter is added to by the fact that enforcement proceedings against the union are pending for breach of the order from which the union seeks to appeal.

114   The Full Bench in LHMU did not give express guidance as to what questions will be regarded as ‘substantial’ for this purpose.

115   Consistent with the approach taken in judicial review matters, as discussed above, a question concerning the rules of procedural fairness would be ‘substantial’ if it meets the test of materiality.

116   Accordingly, this further ground which WALGA relies on to demonstrate the appeal raises matters of sufficient importance for a grant of leave, overlaps with the procedural fairness aspects of the alleged jurisdictional errors, discussed above.

117   WALGA says in its submissions that the appealed directions were made without providing it with ‘an opportunity to properly respond to the application made by the WASU’ and that therefore, there is a substantial question as to whether the Commission followed a procedurally fair process.

118   By use of the word ‘properly’ WALGA appears to implicitly accept that it was given some opportunity to respond to the application. This is undeniable. To maintain otherwise in the face of the facts that are clear from the history, the correspondence exchanged prior to 17 January 2024 and the transcript of the November 2023 and January 2024 directions hearings would be unsupportable and improper.

119   For the reasons discussed at [47] – [76] above, to the extent that the appeal raises questions about the adequacy of the opportunity afforded WALGA to respond to WASU’s application, those questions cannot be regarded as substantial, such as to be matters of such importance that in the public interest an appeal should lie.

120   Ground 9 of the appeal raises a different question about procedural fairness. It alleges:

The Commissioner erred in law by denying WALGA procedural fairness by declining its request to be heard on the Appealed Direction and/or provide the Commissioner with submissions on the Appealed Direction before the Commissioner made a decision about the Appealed Direction.

Particulars

(a) The Commissioner accepted a submission from counsel for the WASU that the Commission [sic] could make an application for discovery by way of minute of proposed orders, when there was no evidence before the Commission to support that submission;

(b) The Commissioner declined then to take into account WALGA’s submissions as to the ability of the Commissioner to proceed on that basis;

(c) Alternatively, declined to receive any submissions as to the ‘discovery’ application in circumstances where the production of the documents was opposed by WALGA.

121   The ground alleges that WALGA’s request to be heard on the direction or provide submissions on the direction was ‘declined’. The grounds do not particularise what ‘request’ is being referred to.

122   If the ground is referring to the request made during the directions hearing on 17 January 2024 to program the application for discovery, then the ground is in substance an appeal from a different decision. It is an appeal from the decision to decline WALGA’s application to program the discovery application. Although the ground refers to a denial of procedural fairness, the substance of this ground and its particulars do not raise questions of the content of procedural fairness.

123   The Commission did not require evidence to form the view that WASU’s application could proceed on the basis of WASU’s minute of proposed order, rather than a formal filed application. That was not a question which turned on evidence. It turned on the Commission’s powers in s 27 and s 28.

124   Further and in any event, WALGA made no submissions at the directions hearing on 17 January 2024 to the effect that the Commission could not proceed on the basis of WASU’s minute of proposed orders. WALGA’s counsel did refer to the requirements of reg 20 that where a conference has not occurred in a matter, discovery cannot be ordered unless it can be assessed as fair and just. But WALGA conceded on appeal that particular regulation did not apply, and the submission was therefore wrong. Had WALGA otherwise submitted that discovery or production could not be ordered without a formal application being filed, it would have been wrong about that. But it did not make the submission.

125   Ground 9 of the appeal is without merit on its face, so it cannot be regarded as meeting the public interest test for leave to appeal.

Is the matter one of wider significance than the parties immediately concerned?

126   WALGA submits that the matters raised in the appeal are of significance extending outside the affairs of the immediate parties. It says so for two reasons:

a. it affects the WALGA’s local government members who were asked to provide their responses to the sector survey on a confidential basis; and

b. the appealed decision creates an unfair precedent for parties attempting to deal with industrial matters under the Act.

127   In relation to the first reason, while many local governments are clearly affected by the decision to order production of the sector survey documents, they are not affected by the matters raised on this appeal. That is because the grounds of appeal, even if they have merit, are of no consequence to the ultimate result namely the requirement for WALGA to produce the survey documents. If local governments are affected, it is not in a ‘significant’ way. No substantial injustice is involved.

128   In relation to the second reason, the appealed directions do not create any precedent. Procedural directions were made. No reasons have been published. No precedent was created.

Summary and disposition

129   The appeals do not raise matters of such importance that, in the public interest an appeal should lie. The appealed directions are procedural directions. While the appeal grounds raise questions about the content of procedural fairness, and, relatedly, whether the application before the Commission at first instance was decided in a manner that was in accordance with equity, good conscience and the substantial merits, at the end of the day, WALGA could not reasonably have resisted an order for production of the sector survey documents. Those documents are self‑evidently relevant to the s 40 proceedings because WALGA introduced them. Having introduced them, WALGA could not also assert privilege, nor resist production on the grounds of confidentiality. Even if WALGA could show its appeal grounds have merit, none of them are of any ultimate consequence.

130   We therefore refuse leave to appeal and dismiss the appeals.