APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER NUMBER U 33/2023 GIVEN ON 18 MARCH 2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2024 WAIRC 00991

DELIVERED : THURSDAY, 28 NOVEMBER 2024

FILE NO. : FBA 9 OF 2024

Appellant

AND

Director General, Department of Education

Respondent

ON APPEAL FROM:

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Coram : Commissioner C Tsang

Citation : 2024 WAIRC 00108

File No : U 33 OF 2023

Catchwords : Industrial Law (WA) – Appeal against decision of Commission – Unfair dismissal – Misconduct by party – Attempt to influence potential witness – Application dismissed – No error demonstrated – Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA) s 26(1)(a), s 27(1)(a)   

Result : Appeal dismissed

Representation:

Counsel:

Appellant : In person

Respondent : Mr M McIlwaine of counsel

Solicitors:

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Brown v Commissioner, Department of Corrective Services [2017] WAIRC 00714; (2017) WAIG 1393

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

House v The King (1936) 55 CLR 49

Librizzi v Western Australia [2006] WASCA 237; (2006) 33 WAR 104

Medical Board of Australia v Woollard [2017] WASCA 64

R v McLachlan [1998] 2 VR 46

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority [2013] WAIRC 00754; (2013) 93 WAIG 1431

Wauchope v Director-General, Department of Education [2022] WAIRC 00739; (2022) 102 WAIG 1415

Reasons for Decision

THE FULL BENCH:

Background

1         The following background is taken from the reasons for decision of the Commission at first instance (see AB155-175).  The appellant was employed as a teacher at the Kalgoorlie Boulder Community High School on 30 January 2023.  On 17 May 2023 the respondent informed the appellant that as a result of incidents that occurred at the school between 1 February 2023 and 3 March 2023, the appellant’s probationary employment had not been successfully completed and her employment was terminated by the giving of four weeks’ notice.  The incidents referred to allegations that the appellant had made inappropriate physical contact with students, did not maintain appropriate boundaries with students and misused social media in communications with students.

2         The appellant challenged her dismissal in June 2023, by commencing a claim alleging that she had been unfairly dismissed. The appellant sought reinstatement.

3         Prior to the substantive claim being heard, the parties were directed to file witness statements and materials that they would rely upon at the hearing.  Additionally, in early December 2023, the respondent foreshadowed it would make an application under s 27(1)(a) of the Industrial Relations Act 1979 (WA) for the appellant’s claim to be dismissed.  The basis for this application being material disclosed in the appellant’s documents, relating to alleged inappropriate communications between the appellant and a student ‘SD’, who was one of the students at the centre of the respondent’s allegations concerning the appellant’s inappropriate conduct and behaviour at the school over the period 1 February to 3 March 2023.

4         In connection with this issue, the respondent sought and obtained an order for an affidavit to be filed by the appellant, in which the appellant was required to disclose and identify any students of the school that the appellant had communications with from 17 May 2023 to the date of the affidavit, including copies of any records in relation to such contact.

5         The respondent contended that the affidavit material filed by the appellant disclosed on its face, improper communications between the appellant and student SD, a person who was likely to be called as a witness in the substantive proceedings. It was contended that these communications, which were text messages between the appellant and student SD on 15 and 16 September 2023, constituted intimidation and conduct likely to have the capacity, tendency or potential, to interfere with the administration of justice. The respondent’s application to dismiss the appellant’s substantive claim was heard on 9 February 2024 and was successful, with the appellant’s substantive claim being dismissed by order of the Commission of 18 March 2024.

The Commission’s decision

6         In upholding the application to dismiss the appellant’s substantive claim, the learned Commissioner referred to the respondent’s contentions in the following terms, as set out at [10] of her reasons (see AB157-160).  The reference to ‘my sister’ was the appellant, who admitted to initially describing herself in those terms in the initial exchanges with student SD.  The contentions were:

10 On 18 January 2024, the respondent filed written submissions contending that:

(a) On 15 and 16 September 2023, Ms Palaloi acted improperly towards an anticipated witness, Student SD (a 13-year-old girl who was Ms Palaloi’s former student), in sending a series of text messages in circumstances where Ms Palaloi expected to call Student SD as a witness.

(b) The text messages constituted improper conduct or misconduct because:

(i) They had the capacity, tendency or potential to interfere with the administration of justice; and

(ii) Ms Palaloi used intimidatory tactics and threats or inducements to persuade Student SD to ‘tell the truth’ (as Ms Palaloi saw it) before the Commission.

(c) Whilst Student SD initiated communication with Ms Palaloi via text, during which Ms Palaloi identified herself as her sister who shares her name and lives in Sydney, when Student SD identified herself and stated ‘give me the one who teaches’ because ‘she beated me with a chair’, Ms Palaloi made the deliberate choice not to end the communications with Student SD, and instead raised the topic of her unfair dismissal proceedings.

(d) Ms Palaloi’s text messages had the following features:

(i) First, over the course of the text messages, Student SD restated her allegations about Ms Palaloi and stated that she wasn’t lying. For example, Student SD stated:

(I) ‘she beated me with a chair’.

(II) ‘also I wasn’t lied’.

(III) ‘we didn’t lie’.

(IV) in response to Ms Palaloi stating ‘U lied’, ‘no we didn’t’.

(V) in response to Ms Palaloi stating ‘My sister said she kicked the chairs for self-defence as you kick the chair to her’, ‘no I didn’t I nudged the chair and you chased me’.

(VI) ‘you chucked a chair at one of them, you locked most of us out read affirmations…’.

(VII) ‘you threw a chair at a student tho?’.

(ii) Second, Ms Palaloi stated that Student SD will be summonsed to give evidence and will be forced to give evidence by video link by the Police. Ms Palaloi stated:

(I) ‘And I got your number or the police will find you’.

(II) ‘Do not worry, the police will find you from the court order… to be a witness of the Principal’s complaints about the student who lied and bullied her teacher’.

(iii) Third, Ms Palaloi made the following comments about the ‘court’ process (being the unfair dismissal proceedings):

(I) ‘My sister will get the court to ask you, Principal and other students from the cross examination in the Kalgoorlie court’.

(II) ‘So see you and the others in court as my sister will challenge you all’.

(III) ‘If my sister was not satisfied with ur answers and the Principal answer, her lawyer will ask the court to use a lie detector’.

(IV) ‘I will be with my sister in the Kalgoorlie to support her and watch you and others who scared to death for being lies’.

(V) ‘Ur parents will be summons too’.

(iv) Fourth, Ms Palaloi stated that she would be making accusations against Student SD in the court proceedings, being that she lied to the Principal and bullied Ms Palaloi in the classroom:

(I) ‘Ur the one will be summon for telling lies to the Principal’.

(II) ‘That’s why my sister will order the court to call the Principal, you, the Hola Science, Deputy Principal and the Director General of the Department of Education to twlm[sic] the truth…You lied…She asked other students to help her because u followed her around the classroom’.

(III) ‘Do not worry, the police will find you from the court order…To be a witness of the Principal’s complaints about the student who lied and bullied her teacher’.

(IV) ‘Other students will tell the truth who bullied my sister while she was trying to teach’.

(V) ‘It was me, it was my sister telling me the girl was you, bullying her and supported by the Principal and Associate Principal…So see you and others in the court as my sister will challenge you all’.

(v) Fifth, Ms Palaloi stated that other students will be called as witnesses and will give evidence supporting her and against Student SD, as follows:

(I) ‘Michael, one of the students will tell the truth’.

(II) ‘Olivia will also tell the truth about u bullied my sister’.

(III) ‘Other students will tell the truth about who bullied my sister while she was trying to teach’.

(vi) Sixth, towards the end of the text messages, Ms Palaloi and Student SD had the following exchange:

In the end they should admit at the court that my termination was harsh, oppressive and unfair.

i agree

we love you ida sorry for this harassment

Why did u agree?

My sister is the fighter, smart and spiritual woman but the Principal labelled her with erratic and irrational behaviour.

i meant i agree that they should admit to the horrible things they did to her.

(vii) Ms Palaloi has suggested that Student SD admitted that she had lied in the text message communications in her submissions filed 13 December 2023 at [25] and in the respondent’s Bundle of evidence filed 18 January 2024 page 8. If Ms Palaloi is referring to Student SD’s comments set out at [10(d)(vi)], Ms Palaloi could not have genuinely or reasonably believed these text messages were an admission by Student SD that she was not telling the truth (particularly because Student SD earlier repeated statements that she was telling the truth).

(viii) Seventh, after the exchange, Ms Palaloi sought a commitment from Student SD that she would ‘tell the truth’, stating:

(I) ‘Well if u want to tell the truth about what’s happening my sister will forgive you…’

(II) How do I trust you to help my sister for your testimony in Oct or Nobevember[sic] at the court?’.

(III) ‘You should tell the truth because you will not be going to jail because you are still under age’.

(IV) ‘I will Olivia and her mother if you and others including the Principal, Associate Principle, the Hola Scoencr,[sic] Year 8 coordinator teacher are lying to support the lies of the Principal. But my sister said if you are faithful, keep your promise to tell he[sic] truth on the video conference link at the court, you will be forgiven and other girls would not be called’.

7         In response, the appellant contended that these text messages were not inappropriate, and as the appellant maintained as set out at [11] of the learned Commissioner’s reasons (see AB160):

11 On 2 February 2024, Ms Palaloi filed written submissions contending that:

(a) The strike out application is based on text messages which are inadmissible because they are not authentic and were not legally obtained.

(b) She denies acting improperly and interfering with the administration of justice because:

(i) The Communications ended positively and maturely.

(ii) [Student SD] ‘was the Respondent’s self-imposed. There will be no students as witnesses on the Applicant behalf. The decision was final due to the failure of investigators to perform their tasks. Applicant remains not guilty against the allegations with the failure of the investigators, which proved that Applicant’s termination dated 17 May 2023 was carried out harshly, oppressively and unfairly’.

(iii) There is no evidence that Student SD was feeling intimidated, threatened or induced as ‘the ending of the Communications were a happy ending with positive and mature messages of apologising and acknowledging the ‘harassment’.’

8         Having regard to all of the material in evidence before her, the learned Commissioner found and concluded that:

(a) based on the content of the appellant’s affidavit, the text messages between the appellant and student SD were properly in evidence before the Commission and at the time that the appellant had the text message exchanges, and when she made her affidavit, the appellant was aware that she was communicating with student SD;

(b) in applying her decision in Wauchope v Director-General, Department of Education [2022] WAIRC 00739; (2022) 102 WAIG 1415, if the appellant had engaged in misconduct in the course of her unfair dismissal claim being dealt with, then the Commission may dismiss her claim on that basis;

(c) if the appellant’s text message exchanges with student SD had the capacity, tendency or potential to interfere with the administration of justice, this would constitute misconduct;

(d) certainty that student SD would be called as a witness was not required, it being apparent that the student would potentially be a witness was sufficient;

(e) having regard to the appellant’s particulars of claim, the content of many of the appellant’s communications with the respondent, the learned Commissioner’s Chambers, the Registry, her various witness statements, and her affidavit, the learned Commissioner found that:

(i) student SD was central to the allegations that the respondent made against the appellant as to her conduct at the school and her suitability to remain as a teacher;

(ii) on this basis, by 15 and 16 September 2023 (when the text message exchanges took place), it was readily apparent to the appellant that student SD would be a potential witness in the proceedings; and

(iii) between 15 and 16 September 2023 and at least 30 October 2023, when the appellant filed her first witness statements, it was evident that the appellant herself intended to call student SD as a witness;

(f) having regard to all of the relevant communications between the appellant and student SD, they were intimidatory and harassing, citing and applying Wauchope. The learned Commissioner referred to and relied on the following comments made by the appellant to student SD in her text message responses at [55] of her reasons (see AB171):

Ur the one will be summon by court

My sister will get the court to ask you … from the cross examination in the Kalgoorlie court When the court called u, they will order you to appear on the video link

And I got ur number or the police will find u

… my sister will order the court to call … you … to [tell] the truth Do not worry, the police will find you from the court order

Ur parents will be summon too

I will be with my sister in the Kalgoorlie to support her and watched you … who scared to death for being lies

So see you … in the court as my sister will challenge you all

If my sister was not satisfied with ur answers … her lawyer will ask the court to use a lie detector. Well if u want tell the truth about what’s happening, my sister will forgive you …

Well you should tell the truth as you will not be going jail as u r still under age.

But my sister said if you are faithful, keep your promise to the video conference link at the court, you will be forgiven and other girls would not be called.

(g) the appellant’s contentions that the text messages were not intimidatory and harassing was not tenable;

(h) despite this behaviour, the appellant did not demonstrate any insight in her communications with student SD;

(i) the appellant’s objective views that her text messages with student SD were appropriate was irrelevant;

(j) any registered teacher should know to immediately cease communicating with a student on becoming aware of it;

(k) the appellant did not do so, and especially given the nature of the text message exchanges with student SD, demonstrated a lack of insight into her inappropriate behaviour; and

(l) text messages sent by the appellant to student SD on 15 and 16 September 2023 had the capacity, tendency or potential to interfere with the administration of justice, constituting misconduct in connection with her unfair dismissal application.  In applying Wauchope it was appropriate to dismiss the appellant’s claim.

The appeal

9         The appellant in her notice of appeal did not articulate any clear grounds as to how she maintained that the learned Commissioner’s decision contained an appealable error.  The notice of appeal contains the following:

1. The appeal I hereby make to the Honourable Commissioner/ Commission, is on the Honourable Commissioner Order of 18 March 2024, made upon an Interlocutory hearing on the day, dismissing my substantive Unfair Dismissal claim matter, that was scheduled for hearing on 12 and 13 March 2024, but was intervened by an Application by the Respondent on basis of claimed issues raised with a claimed potential witness, "Student SD".

2. I humbly submit that it appears, an error occurred in Honourable Commissioners issuing the Order of 18 March 2024 to uphold the Respondent's Interlocutory Application to dismiss my (substantive) "Unfair Dismissal" claim Application of 14 June 2023.

3. I humbly submit that this seemingly minor oversight on part of the Honourable Commissioner which results in gross denial of justice to me – an[sic] humble Teacher in service of the community, and stands to ruin my livelihood, family peace, and life - may be corrected by simply varying the said Order, as follows:

4. Without admitting in any way the allegations made against me, I submit that,

(i) "Student SD", claimed to be a potential witness, allegedly I tried to influence, be left out of witness list, and be not admitted as a witness from either side - thereby removing cause any concerns about her being brought in as a witness in my substantive case/hearing, the only ground of the Interlocutory Application by the Respondent;

(ii) The rest of the Respondent's Application, i.e., to dismiss my substantive "Unfair Dismissal" claim be set aside/cancelled/dismissed;

(iii) Let my substantive "Unfair Dismissal" Application continue in its due course, with new dates scheduled for the substantive hearing originally being 12 and 13 March 2024, and now stand intervened by the Respondent's Interlocutory Application, and its aftermath.

5. I further, humbly submit, that this restoring justice to me by this minor but greatly significant correction of the error noted, would be not only of life-saving consequences for me, a self-representing party, and a disadvantaged member of the society, but also would be of great importance in the public interest - restoring/reinforcing faith amongst Teachers like us in the efficacy and nobleness of the somewhat pioneering spirit of Teachers who boldly take the step to go to teach in remoter, country-area schools, in the interest of Greater Good of the Australian society, to which I remain committed.

Contentions of the parties

10      Whilst the appellant, being unrepresented, was granted dispensation from the requirement to file written submissions in connection with her appeal, she, in any event, did so.  Given that the structure of the appellant’s written submissions were responsive to the matters raised in the respondent’s written submissions, it is convenient to refer to the latter first.

Respondent

11      In the absence of any discernible ground of appeal, the respondent contended that if in essence the appellant maintained that:

(a) student SD was not a potential witness; and/or

(b) the appellant did not attempt to influence student SD,

then these contentions cannot be made out.

12      As to the first issue, the respondent submitted that the learned Commissioner found that the allegations made by student SD were central to the incidents that occurred at the school, leading to the termination of the appellant’s employment.  Additionally, the learned Commissioner found that at the time of the text message exchanges on 15 and 16 September 2023, it should have been apparent to the appellant by that time, that student SD was a potential witness in the substantive proceedings.  Finally, in connection with this issue, is the fact that the learned Commissioner found that up to 30 October 2023, when the appellant submitted outlines of witness evidence, that the appellant herself proposed calling student SD as a witness.

13      The respondent contended that these findings were all open on the evidence and the material before the Commission.  The appellant had not contended, let alone established, that these findings were not open. Accordingly, the respondent’s submission was that there is no basis for the Full Bench to interfere with these findings.  Irrespective of whether the appellant intended to call student SD as a witness, there was clearly a prospect that she could have been summoned to give evidence in the substantive proceedings in any event. 

14      As to the second issue, that the appellant did not try to influence student SD, the respondent submitted that the learned Commissioner’s findings, as have been set out above, were plainly open on the face of the text messages themselves.  This should also be seen, according to the respondent’s submissions, in the context of the fact that these were communications involving the appellant and a 13-year-old student.

15      The respondent also referred to the appellant’s submissions in the course of the hearing of the s 27(1)(a) application, that there was no dispute that the appellant did communicate with student SD, but that she considered the communications to be ‘positive’, ‘nice’ and that she did not intimidate student SD.  It was contended that the appellant’s denial that the text messages from her to student SD were not intimidating nor harassing in nature, was not tenable, and this conclusion was correctly reached by the learned Commissioner on the basis of the evidence and material before the Commission.

16      It was also contended that the appellant had not made out a case as to why the learned Commissioner’s conclusions were not reasonably open to her.  In this respect, the respondent emphasised the issue at first instance was not what the appellant’s subjective intentions may have been in her communications with student SD, but rather, whether objectively, they had the capacity to interfere with the administration of justice.

17      Finally, the respondent submitted that whilst the power under s 27(1)(a) of the Act to dismiss an application is a large step to take, given the circumstances of this case, it involved an appropriate exercise of the power. The respondent contended that interference with the course of justice should not be tolerated to any extent.  This was not a case where any potential interference could be said to be marginal.

Appellant

18      As noted above, the appellant did not articulate any grounds as to why the Full Bench should interfere with the learned Commissioner’s decision at first instance.  Whilst from the written and oral submissions of the appellant, it was difficult to discern any basis for upholding the appeal, doing the best we can, we understood that the appellant’s contentions were broadly as follows.

19      First, there was some reference made by the appellant, as was submitted before the learned Commissioner, that the text messages between her and student SD were illegally obtained.  It was unclear as to the basis upon which this assertion was made. The appellant also initially submitted that in relation to the text message exchanges concerned, that she was in doubt as to whether the person she was communicating with was student SD.  The appellant later submitted that it was not until further on in the conversations on 15 and 16 September 2023, that she realised who it was that she was communicating with. The appellant also  somewhat contradicted this line of argument, in terms of her alleged uncertainty as to who she was communicating with, by submitting that in any event, the text messages between her and student SD were not intimidatory or harassing, but were ‘positive’ and ‘nice’.

20      Furthermore, the appellant submitted that the content of the text messages did not make it clear to her that student SD may have been a potential witness in the substantive hearing of her unfair dismissal claim.  The appellant maintained that the text messages should be seen as a part of the ‘personal communications’ between herself and student SD.

21      As a general submission, the appellant contended that as an unrepresented party, she was not familiar with the procedure she had to comply with and did not understand the learned Commissioner’s reference to it ‘not being about intention’ when discussing the text messages in the course of the hearing of the s 27(1)(a) application, concerning the appellant’s communications with student SD.

22      The appellant also complained that the reference to the background leading to the application by the respondent to dismiss her unfair dismissal claim, set out at [4] and [5] of the learned Commissioner’s reasons (see AB156) was, in some way, which was not articulated, prejudicial to her. This cannot be so. These two paragraphs refer to nothing more than a brief background to the appellant’s claim before the Commission and formed no part of the learned Commissioner’s reasons in upholding the respondent’s application under s 27(1)(a) of the Act.

Consideration

Relevant principles to apply

23      As the decision of the Commission at first instance was a discretionary decision, it is for the appellant to demonstrate an error of the House v The King ((1936) 55 CLR 49) kind.  That is, that the learned Commissioner made an error in that she mistook the facts, applied the wrong principle, failed to take into account relevant considerations or took into account irrelevant considerations, or that the decision is so unjust that no reasonable tribunal could make it: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194; Medical Board of Australia v Woollard [2017] WASCA 64.

24      The power of the Commission to dismiss a matter or to refrain from further hearing a matter, is a broad power.  In The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority [2013] WAIRC 00754; (2013) 93 WAIG 1431 as to s 27(1)(a) of the Act, with particular reference to the public interest, Kenner C (as he then was) observed at [21] – [23] as follows:

21 Section 27(1)(a) of the Act provides as follows:

27. Powers of Commission

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

(a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part thereof is trivial; or

(ii) that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;

22 In another context, in The Construction, Forestry, Mining and Energy Union of Workers v Skilled Rail Services Pty Ltd (2006) 86 WAIG 1268, I considered the meaning of the “public interest” for the purposes of s 36A(1) of the Act. In referring to s 27(1)(a)(ii) of the Act, empowering the Commission to dismiss or refrain from further hearing a matter, I referred to QEC and at par 35 I observed as follows:

35 Given the construction I have placed on s 36A(1) of the Act, it is for the respondent to demonstrate that it would not be in the public interest for the Proposed Award to the made. The notion of the “public interest” is somewhat amorphous. Consideration of this issue is similar to the terms of s 27(1)(a)(ii) of the Act empowering the Commission to dismiss or refrain from further hearing a matter on the basis that further proceedings are not necessary or desirable in the public interest. Similar provisions exist in other industrial jurisdictions. In Re Queensland Electricity Commission and Ors; Ex-parte Electrical Trade's Union of Australia (1987) 21 IR 151 the High Court in proceedings for prerogative writs against a Full Bench of the then Australian Conciliation and Arbitration Commission, held that for the purposes of the then s 41(1)(d)(iii) of the Conciliation and Arbitration Act 1904 (Cth) that “Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree” (per Mason CJ and Wilson and Dawson JJ). In the same case, Deane J in dealing with the refrain from hearing power in the public interest observed at 162:

“The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked. That prima facie right to insist upon the exercise or jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is “amenable to the jurisdiction” of the courts and other public tribunals (cf Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed (1959), p 193). In the rare instances where a particular court of tribunal is given a broad discretionary power to refuse to exercise its jurisdiction on public interest grounds, the necessary starting point of a consideration whether such a refusal would be warranted in the circumstances of a particular case in which its jurisdiction has been duly invoked by a party must ordinarily be the prima facie right of the party who has invoked the jurisdiction to insist upon its exercise (cf per Higgins J, Merchant Service Guild of Australasia v Commonwealth Steamship Owners’ Association [No 1] (1920) 28 CLR 278 at 281). That position is a fortiori in a case where no other court or tribunal, Commonwealth or State, possesses jurisdiction fully to deal with the particular dispute. Were it otherwise, effective access to the courts and other public tribunals would be not a right which could be denied in an exceptional case on the grounds of extraordinary consideration of public policy but an uncertain privilege which could be withheld at any time on unconfined and largely unexaminable discretionary grounds (see, generally, Friedman, “Access to Justice: Social and Historical Context: in Cappelletti and Weisner (eds) Access to Justice, vol II, book 1 (1978) pp 5ff; Raz, The Authority of Law, (1979), at p 217).”

23 I adopt what I said in Skilled Rail Services for present purposes. The discretion open to the Commission to be exercised under s 27(1)(a) is a broad one. A gloss should not be put on the words of the section to import any particular level of satisfaction to be achieved by the Commission for the exercise of the power.  However, given that a party is entitled to invoke the Commission’s jurisdiction, and prima facie expect it to be exercised there is an onus on the Authority in this case, to persuade the Commission, that in the circumstances, that prima facie right should be overridden: QEC per Deane J at 163. Further, in the exercise of the discretion, the Commission is required, as in all matters before it, to have regard to its statutory obligations under s 26(1) of the Act: Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 68 WAIG 4.

25      Given that a person who brings proceedings before the Commission is entitled to have the jurisdiction invoked, the statutory power to dismiss a matter under s 27(1)(a) of the Act is to be exercised sparingly.  Whilst the PTA case concerned a dismissal application in the public interest under s 27(1)(a)(ii), the same broad approach should be adopted to the other bases of the exercise of the power in s 27(1)(a)(i), (iii) and (iv), in that the power should only be exercised in a clear case. 

26      A finding that a party to proceedings in a matter before the Commission has engaged in misconduct, having the capacity or tendency to interfere with the administration of justice, is a circumstance that falls within the broad power to dismiss or refrain from hearing a matter, ‘for any other reason’ under s 27(1)(a)(iv) of the Act.

27      Whilst the power of the Commission to dismiss a matter is a broad one, in the circumstances of the present case, some guidance can be obtained as to the approach to be taken, from cases dealing with the criminal offence of attempts to pervert the course of justice, both under the Criminal Code and at common law and in the law of contempt.  Some of these cases were referred to and relied on by the learned Commissioner, when determining the s 27(1)(a) application.

28      Section 143 of the Criminal Code deals with the offence of attempting to pervert etc the course of justice.  This section was considered by the Court of Appeal in Librizzi v Western Australia [2006] WASCA 237; (2006) 33 WAR 104. In this case, after a review of the authorities, Roberts-Smith JA summarised the relevant principles at [80] as follows:

80 So far as the present case is concerned, the principles established by the authorities may relevantly be summarised as follows:

(1) The offence will be committed where the conduct or statements of the accused have the tendency to pervert the course of justice and the accused engaged in the conduct or made the statements with that intent (R v Vreones (supra) at 369; R v Rogerson (supra) at 279 and Meissner (supra) at 140-142).

(2) It is not necessary to prove that the accused's intention was in terms an intent to pervert the course of justice – it is sufficient if the accused intended to engage in conduct which had that tendency for the purpose of giving effect to it; namely that it was an intent to do something which, if achieved, would pervert the course of justice (Meissner (supra), 143 - 146).

(3) Any attempt to persuade a witness to give false or perjured evidence or to refrain from telling the truth would clearly be an attempt to pervert the course of justice (Kellett).

(4) It is lawful to try to dissuade a witness from giving false or perjured evidence (or evidence the accused honestly believes would be false or perjured) by reasoned arguments, which may be supported by material facts and documents (Kellett (supra) 388; R v Taffs [1991] 1 NZLR 69, 72; Meissner (supra), 142 - 143).

(5) The use of any improper or unlawful means to persuade a witness not to give, or to change, their intended evidence, will constitute an attempt to pervert the course of justice even if the accused honestly believes the intended evidence is false (Kellett, ibid).

(6) It follows that a belief that the intended evidence is false and that the accused is intending the witness should tell the truth, will be a defence only where no improper or unlawful means are used.

(7) Conduct which is no more than a threat to do what the accused might lawfully do in order to secure a legitimate end is not conduct which has a tendency to pervert the course of justice (Meissner (supra) at 142 - 143).

(8) Whether a threat goes beyond one to do that which the accused might lawfully do, or was not made to secure a legitimate end, are questions for the jury (Kellett, 392 - 393).

29      In the same case, Buss JA, as to the applicable principles, said at [139]:

139 A person is guilty of attempting to pervert the course of justice when he or she engages in conduct which has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice. See R v Vreones [1891] 1 QB 360 at 369; R v Murphy (1985) 158 CLR 596 at 609; R v Rogerson (1992) 174 CLR 268 at 275 - 276, 279, 297; Meissner v The Queen (1995) 184 CLR 132 at 140 - 141, 148, 156. Section 143 creates a substantive offence. See Rogerson at 279, 297; Meissner at 141. It is irrelevant whether or not the conduct in question succeeds in perverting the course of justice. It is the tendency of that conduct which is decisive. See Rogerson at 277, 280, 298; Meissner at 141. The notion of "perverting" the course of justice involves nothing more than adversely interfering with its proper administration. See Meissner at 148.

30      Additionally, his Honour continued at [143] as follows:

143 The means by which the course of justice may be perverted have not been comprehensively defined.  See Meissner per Dawson J at 157.  It is established, however, that the course of justice may be perverted when a court is denied knowledge of the true circumstances of the case.  See Rogerson at 280; Meissner per Dawson J at 157.  An attempt to induce a plea of guilty by improper means is an attempt to deny to the court knowledge of the true circumstances of the case in that the court must assume, absent any contrary indication, that a plea has been made freely and voluntarily.  See Meissner per Dawson J at 158.  There is a close analogy between cases where attempts have been made to induce a plea of guilty by improper means and cases where attempts have been made by improper means to induce witnesses to withdraw or alter their evidence.  See Meissner per Dawson J at 158.

31      Having regard to the fact that proceedings before the Commission are civil proceedings, a party who engages in misconduct in matters before the Commission, by the use of threats, intimidation or harassing behaviour towards a witness or a potential witness, in an attempt to interfere with the evidence that person may give, should be regarded as an attempt to pervert the course of the administration of justice by the interference with the proper processes and proceedings of the Commission.  This interference is constituted by an attempt to bring illegitimate pressure to bear on a witness or a prospective witness, by the use of such threats, intimidation or harassing conduct. It has the potential to interfere with the Commission determining a matter justly, and in accordance with equity, good conscience and the substantial merits of the case, as s 26(1)(a) of the Act requires.

32      In the context of proceedings before the Commission, a similar approach to the matters set out above was adopted by the Appeal Board in Brown v Commissioner, Department of Corrective Services [2017] WAIRC 00714; (2017) WAIG 1393.  In that case, the Appeal Board found that the appellant had sought to improperly influence a witness due to give evidence for the respondent.  The Appeal Board applied the broad principles set out in Librizzi and in R v McLachlan [1998] 2 VR 46 and exercised its powers under s 27(1)(a) of the Act to dismiss the appeal.  This was on the basis that the appellant’s conduct had the capacity or tendency to interfere with the proper processes of the Appeal Board and the capacity of the Appeal Board to do proper justice between the parties: at [54], [61] and [66] to [69].

Approach to the appeal

33      As the appellant did not advance any clear grounds of appeal, and was unrepresented, we will proceed to take the appellant’s appeal at its highest and deal with three issues. They being first, did the appellant know, or at least believe, that she was communicating with student SD?  Second, was student SD a potential witness in the case at first instance?  And third, did the appellant attempt to influence student SD?

Did the appellant know or at least believe, that she was communicating with student SD?

34      On balance, it is clear on the material before the Commission at first instance, that the appellant knew, or alternatively believed, that she was engaging in text message conversations with student SD on 15 and 16 September 2023. Whilst the appellant repeatedly asserted that she is not legally trained and did not appreciate the consequences of what she was ordered to do in making her affidavit, the matters arising are questions of fact and involve common understanding and not legal skills or training.

35      In the appellant’s affidavit filed on 9 January 2024 (see exhibit R7), the appellant said that she had a conversation with student SD on Friday 15 September 2023 and Saturday 16 September 2023. A total of 35 pages of copies of text messages from the appellant’s mobile phone were annexed to her affidavit.  The appellant said that student SD was the only student that she had contact with.

36      The text message exchanges from the commencement identified the sender, as received by the appellant, as student SD.  The first few pages of the text message exchanges appear to refer to a nutrition business conducted by the appellant.  The student initially used another name on p 1 (despite the identifier on the top of each text message as student SD).  There are some unsavoury messages from the sender and then at p 8 the appellant then portrays herself as her ‘sister’ who lives in Sydney.  On p 11, the student identified themselves as student SD.  Student SD refers to being beaten with a chair by the appellant. From pp 11 to 35 the appellant made various responses to student SD, the most significant of which have been set out as extracted from the learned Commissioner’s reasons at [8(f)] above.

37      When the identity of the student as referred to in the appellant’s affidavit was raised in the proceedings at first instance, the appellant accepted that given that the student identified themselves at p 11, referred to the details of the incident in the classroom with a chair, and demonstrated knowledge of the incident and those involved, from that point in the text message exchanges, she knew or understood that it was student SD she was communicating with.  As to this, the following exchange took place between the appellant and the learned Commissioner at pp 32-34 of the transcript:

PALALOI, MS: Right. In the end - - -

TSANG C: So the fact that the student named herself - - -

PALALOI, MS: Yeah. Page 11.

TSANG C: - - - and referred to the chair incident - - -

PALALOI, MS: Yeah.

TSANG C: - - - did you have any doubt at the time that this was the student?

PALALOI, MS: No. No. I - - -

TSANG C: Okay. All right. Thank you.

PALALOI, MS: That’s why this communication is – is nice and small until - - -

TSANG C: Yes. So at the time when you were having this communication, so from page 11 to page 35, you understood - - -

PALALOI, MS: It was her.

TSANG C: - - - you were communicating with a student because of all the student’s references. Firstly, naming herself and then referring to the chair incident, which only - - -

PALALOI, MS: Yeah.

TSANG C: - - - a discrete number of people know about.

PALALOI, MS: Miss, but this is about the communication because she said, “You chuck a chair”. She’s still adamant that I – I did it to her, so I explain it to her that I didn't. And she knew that I didn't do it, you know. And that’s page 23 I was (indistinct 11.42.01) because she asking me, “Do you think who I am?” So I just went, oh, this is maybe not her. Because she knows all the allegations where the respondents, including name one of the schools in Kalgoorlie. There were - were - were – when the principal also said (indistinct 11.42.19) email to Mr O’Brien name me, that, “Ms Palaloi, you work in the school as a second income”. How does she know that? And the other allegation also I – I lock the door of the students. It wasn't in her class. How did she know that if it’s not - - -

…

TSANG C: If I can just understand your submission you at this time, when you were communicating with this person, you thought it was the student.

PALALOI, MS: I was thinking it’s – yeah, (indistinct 11.43.38), yes.

TSANG C: Okay.

…

TSANG C: So at the time when you sent these messages you thought it was the student.

PALALOI, MS: Yes.

TSANG C: Okay.

PALALOI, MS: And the communication is nice.

TSANG C: Right. Okay. So what you disagree with is not that at the time you were communicating with a student, what you disagree with is the description of the communication as intimidatory.

PALALOI, MS: Yeah. Because - - -

TSANG C: Okay. We’ll get to that. So but the first step is you agree that at the time when you were communicating with this person you thought it was the student.

PALALOI, MS: It was.

38      In her reasons for decision, the learned Commissioner referred to the appellant’s affidavit and the annexed text messages. We have referred to the learned Commissioner’s relevant findings and have set them out at [8] above.  As noted at [8(a)], the learned Commissioner concluded that the text messages were properly before the Commission. There can be no doubt about that. The appellant obtained the messages from her own mobile phone and swore that they were the records of all contact with student SD. 

39      The admissions variously made by the appellant about her contact with student SD were contained in a number of filed documents in the proceedings. These included her fourth amended outline of evidence, filed on 27 November 2023, in which the appellant referred to her text message exchanges with student SD (see reasons at first instance at [44] at AB168); her written submissions filed on 13 December 2023, in which she referred to student SD and the text message communications between them, that the appellant referred to as going ‘smoothly’ and ‘with mutual respect’ and at the end of the conversation ‘Student SD showed her sympathy to the Applicant and said sorry’ (see reasons at first instance at [50] at AB169); and in further written submissions filed by the appellant on 2 February 2024, in which she again referred to student SD and the text messages with her to a similar effect (see AB81).

40      Based on all of the above, no basis has been established by the appellant to disturb the learned Commissioner’s findings that the appellant knew, or at least believed, she was communicating with student SD on 15 and 16 September 2023.

Was student SD a potential witness in the case at first instance?

41      We have set out the learned Commissioner’s findings as to this issue at [8(e)] above.  It is self-evident that being a student at the centre of one of the central allegations against the appellant, that the appellant pushed and then threw a chair at student SD, that student SD was a potential witness in the substantive proceedings.

42      The specific allegations of inappropriate contact made by the three students against the appellant, were set out in an email from the school to the appellant dated 15 February 2023 (see exhibit R1).  Relevantly, it was stated that on Friday 10 February 2023 the appellant pushed student SD and then kicked a chair at student SD.  Following a formal letter from the respondent in relation to the allegations against the appellant (see exhibit R2), the appellant replied by email dated 27 March 2023 and specifically denied the incident involving student SD, and made allegations that it was student SD who was the protagonist in the incident (see exhibit R3).

43      Additionally, in the appellant’s response to the respondent’s submissions in the application to dismiss, the appellant maintained the allegations by the three students referred to above, were not properly investigated and the school Principal allegedly admitted to not witnessing any physical aggression being displayed by the appellant towards students (see AB69).  The appellant also made allegations that student SD was a disruptive student at the school.  The appellant also referred to the text message exchanges with student SD on 15 September 2023 and referred to student SD as being the one who kicked the chair and not the appellant (see AB81).

44      In the absence of any case put by the appellant as to how the learned Commissioner’s findings that she made at [25]-[50] of her reasons (see AB162-169) were not reasonably open on the evidence, either through mistaking the facts or otherwise, the only conclusion reasonably open was that at the time of the text message exchanges on 15 and 16 September 2023, the appellant should have been aware that student SD, given her central role in the incident, would or could be a witness in the hearing of the appellant’s unfair dismissal claim.  This to an extent, was confirmed by the appellant’s initial intention to summons student SD herself to give evidence in the substantive proceedings, in documents filed by the appellant on 30 October 2023. This was also referred to in subsequent correspondence with the learned Commissioner’s Chambers and the respondent, over the period 1 November and 14 November 2023, as referred to in the Commission’s reasons at [52] (see AB170).

Did the appellant attempt to influence student SD?

45      It must be kept in mind when assessing this matter, that student SD was, at the time of the text message exchanges on 15 and 16 September 2023, a 13-year-old child who was a year 8 student at the school and the appellant was a mature aged teacher and had been student SD’s teacher.  As the teacher of student SD at the material times, on becoming aware it was student SD she was communicating with on 15 and 16 September 2023, the appellant should have immediately ceased any contact. The fact that the appellant did not do so, and then went on to engage in the conduct that she did engage in, is an aggravating circumstance.  The various text messages from the appellant to student SD, which the learned Commissioner concluded were of an intimidatory and harassing nature, are set out at [8(f)] above.

46      It is self-evident, that saying to a 13-year-old child, in connection with proceedings commenced by the appellant and to be heard before the Commission, which proceedings were referred to by the appellant when communicating with student SD, that the appellant or the police will find her; the student will be ordered to appear in court and will be ordered to tell the truth; the student’s parents will also be summonsed; the student will be ‘watched’; reference being made to being ‘scared to death for telling lies’; being ‘challenged’; being threatened with the use of a lie detector; that if the student tells the truth they will not go to jail as they are underage; and if the student tells the truth they will be ‘forgiven’, constituted threats, intimidation and harassment. Such statements, in the context of proceedings on foot before the Commission, to a child who would likely be a witness in the proceedings, could not possibly be viewed in any other light.

47      The conduct of the appellant is made worse by the fact that, as noted by the respondent in its submissions, the appellant said what she did to student SD because student SD argued, and denied the conduct that the appellant alleged student SD engaged in (see the exchange between the learned Commissioner and the appellant at p 56 and p 59 of the transcript at first instance). This only underscores the evident intent of the appellant to pressure student SD, to alter her view of the incident, favourable to the appellant.

48      The appellant repeated the submissions that she made before the learned Commissioner, in her oral submissions to the Full Bench, that these text messages exchanges with student SD were part of the ‘communication’ with the student.  As noted earlier in these reasons, the appellant also contended that the exchanges should not be viewed as intimidatory or harassing, because the text message conversation ended politely and positively.  For the reasons immediately above, this contention must be rejected, as it was by the learned Commissioner at first instance.

49      It is unquestionable in our minds, having regard to the content of the text message exchanges on their face, that the appellant was attempting to influence student SD. The threats and intimidation were for the purpose of persuading student SD to ‘tell the truth’, by not maintaining a version of the events inconsistent with that advanced by the appellant. In this context, the communications between the appellant and student SD on 15 and 16 September 2023, plainly had the capacity or tendency to interfere with the administration of justice.  Indeed, it is difficult to come to any other view based upon the evidence before the Commission.

50      In the present case, whilst it may not have been the appellant’s intention to, and she most likely did not have in mind, interfering with the administration of justice per se, by the course of conduct she engaged in, that is not necessary.  On the evidence, the appellant plainly attempted to persuade student SD to alter the views that student SD had of the relevant incident, and any evidence she may give, by the use of threats and intimidation. That is sufficient to constitute interference with the administration of justice.

51      Finally, whilst the appellant at the hearing of the s 27(1)(a) application on 9 February 2024, indicated that she was then reluctant to call student SD as a witness (see transcript at first instance pp 47-48 and reasons at [53] AB170), this does not absolve the appellant’s conduct. By this time, the misconduct had occurred. The damage was done. There being no property in a witness, it would have been open to either the appellant to have changed her mind and to call student SD as a witness, or for the respondent to do so or to summons student SD to give evidence in the substantive proceedings. Either way, the improper influence had already been exerted on student SD.

Conclusion

52      The appellant has not established any error in the exercise of the discretion by the learned Commissioner in her decision to dismiss the appellant’s application under s 27(1)(a) of the Act.  The appeal is dismissed.