FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - termination of employment - review of Judicial Registrar’s decision - agreed directions for review to be conducted by oral evidence with leave to file affidavit evidence and with reliance on transcript before Judicial Registrar - application for review dismissed - whether primary judge in error in reversing statutory onus of proof - scope of review on hearing de novo - whether primary judge erred in accepting Judicial Registrar’s findings - whether primary judge made independent assessment of credibility.

Industrial Relations Act 1988 (Cth) ss 170DC, 170DE(1), (2) 170EA(1), 170EDA(1), 377

Federal Court of Australia Act 1976 (Cth) s 18AC

Kumar v Prima Furniture (NSW) Pty Ltd (1997) 73 IR 349 referred to

Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd (1976) 135 CLR 616 referred to

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220 referred to

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 referred to

Evans v Bartlam [1937] AC 473 referred to

C M Van Stillevoldt BV v E L Carriers Inc [1983] 1 WLR 207 referred to

Tidswell v Tidswell (No. 2) [1958] VR 601 referred to

Aldridge v Booth (1988) 80 ALR 1 referred to

Devries v Australian National Railways Commission (1993) 177 CLR 472 referred to

Rennie v Commonwealth of Australia (1995) 61 FCR 351 referred to

Cox v South Australian Meat Corporation (1995) 60 IR 293 referred to

Macs Foods Centre Pty Ltd v McLeish (1995) 62 IR 381 referred to

Wyndham Lodge Nursing Home v Reader (No 2) (1996) 65 IR 253 not followed

Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 referred to

Andrews v Uniting Church in Australia Frontier Services (1995) 60 IR 437 referred to

Cosco Holdings Pty Ltd v Thu Thi Van Do & Ors (unreported, Industrial Relations Court of Australia, 30 June 1997, Decision No. 215 of 1997) referred to

McCormack v Federal Commissioner of Taxation (1978) 143 CLR 284 referred to

Keating v Teico Investments Pty Ltd (1994) 54 IR 339 referred to

Association of Professional Engineers, Scientists and Managers Australia v Deniliquin Council (1995) 58 IR 275 referred to

Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374 referred to

Cheesman v Waters (1997) 148 ALR 21 referred to

Harris v Caladine (1991) 172 CLR 84 considered

Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 referred to

Gibson v Bosmac (1995) 130 ALR 245 considered

SS Hontestroom v SS Sagaporack [1927] AC 37 referred to

Rethmann Australia Environmental Services Pty Ltd v Melide (Wilcox CJ, Industrial Relations Court of Australia, 8 April 1997, unreported) referred to

ANTHONY D’ANTUONO v MINISTER FOR HEALTH

No. WAG 100 of 1997

BURCHETT, CARR & R D NICHOLSON JJ

5 DECEMBER 1997

PERTH

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BURCHETT J

On 17 September 1996, a judicial registrar of the Industrial Relations Court of Australia dismissed an application challenging the termination of the appellant’s employment as a mental health nurse at a psychogeriatric institution known as Armadale Lodge.  The appellant made an application to the Industrial Relations Court under s 377 of the then Industrial Relations Act 1988 to review the judicial registrar’s exercise of delegated power.  However, the application did not come on for hearing until after the commencement of the amended legislation known as the Workplace Relations Act 1996.  Under the new arrangements, the matter was listed before a judge of this Court at the end of June 1997 (see Kumar v Prima Furniture (NSW) Pty Ltd (1997) 73 IR 349), who dismissed it on 26 August 1997.  From that dismissal, the appellant appeals to this Full Court.

It is unnecessary for me to recount the facts, which are set out in some detail in the judgment to be delivered by Carr J.  I agree with his Honour that the appeal must be dismissed with costs and, subject to what follows, with his reasons.  I shall restrict my own discussion to certain problems raised by the appeal which concern the character of the task undertaken by a judge reviewing a decision of a judicial registrar.  Those problems must be the same, whether the Court is considering the nature of the review for which s 377 of the Industrial Relations Act provided, or the nature of the review under s 18AC of the Federal Court of Australia Act 1976, since Parliament framed the sections in identical terms.  The present case having commenced in the Industrial Relations Court, it is appropriate to set out here the terms of s 377:

“(1)     A party to proceedings may apply to the Court to review a Judicial Registrar’s exercise in the proceedings of a power delegated under section 376.  An application must be made within the period prescribed by the Rules of Court or such further period as is allowed in accordance with the Rules.

(2)       On an application under subsection (1) or of its own motion, the Court may review a Judicial Registrar’s exercise of a power so delegated.  The Court may make whatever order it considers appropriate in relation to the matter in relation to which the power was exercised.

(3)       On the application of a party or of its own motion, the Court may refer to a Full Court of the Court an application under subsection (1).”

Although this section uses the word “review” without any qualifying expression to indicate the nature of the review intended, the power conferred on the Court to “make whatever order it considers appropriate in relation to the matter in relation to which the power was exercised” suggests that the review involves an untrammelled rehearing of the matter as at the date when it comes before the Court.  That is indeed how s 377 has been interpreted; the review for which it provides has been described as “a re-hearing de novo on material put to the Court at that hearing”:  Keating v Teico Investments Pty Ltd (1994) 57 IR 339; Association of Professional Engineers, Scientists & Managers (Aust) v Deniliquin Council (1995) 58 IR 275; Gibson v Bosmac Pty Ltd  (1995) 130 ALR 245; Wyndham Lodge Nursing Home Inc v Reader (No 2) (1996) 65 IR 253.  In Gibson v Bosmac Pty Ltd at 247, it is suggested that the expression “hearing de novo” is “perhaps ambiguous”.  But the nature of a hearing de novo has been authoritatively expounded by Mason J (with whom Barwick CJ and Stephen J agreed) in Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd (1976) 135 CLR 616 at 620 and by Dawson J in Harris v Caladine (1991) 172 CLR 84 at 124-125.  Of course, the procedures at such a hearing may be affected by directions given by the judge, or by admissions or concessions made by the parties, just as at any other hearing.  Some directions which may be appropriate in particular cases are discussed in Gibson v Bosmac Pty Ltd at 248-249.

If s 377 is understood in this way, the provision for delegation of judicial powers to judicial registrars is enabled to survive constitutional challenge.  Otherwise it might collide with what the majority of the High Court, in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220 at 227, called the “constitutional imperative” of judicial independence which demands that the jurisdiction of a federal court be exercised by judges holding office in accordance with the Constitution.  In Harris v Caladine, a delegation of judicial power by the Family Court of Australia was upheld as valid by a majority of the High Court, Brennan and Toohey JJ dissenting. 

It is interesting to note that, in the later case Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 262, the joint judgment of Mason CJ (one of the majority in the earlier case) and Brennan and Toohey JJ stated of Harris v Caladine:

“By reason of the nature of the review provided by the Family Law Rules and other aspects of the Family Law Act 1975 (Cth) and the Rules, the delegation was held not to infringe Ch III [of the Constitution].”

The kind of review provided for by the Family Law Rules in question in Harris v Caladine, to which their Honours referred, was “by way of a hearing de novo”.  However, two of the judges in that case expressly leave open the question whether some other form of review might have satisfied the constitutional requirement.  Clearly, the dissenting judges would not have accepted anything less than a hearing de novo, since they thought  even that would not suffice.  Also McHugh J, one of the majority, made it clear that he regarded a hearing de novo as essential to the validity of such a delegation of power.  His Honour said (at 164):

“The delegation of power to an officer of this Court or a federal court, subject to review by a Justice or judge of that court, does not take away from the Justices or judges of the court the power to give the binding and authoritative decision in the action.  It does not undermine the theory of checks and balances embodied in the doctrine of the separation of powers and in ss. 1, 61 and 71 of the Constitution.  It does not threaten the values which Ch. III of the Constitution seeks to protect - the independence and impartiality of the federal judiciary and the separation of the exercise of judicial power from legislative and executive power.  It follows that such a delegation is not contrary to the spirit or the substance of the doctrine of the separation of powers. ...

It follows, in my opinion, that this Court or a federal court  created under s. 71 of the Constitution may be authorised to delegate the exercise of its judicial powers to an officer of that court provided that the exercise of the power is subject to review by way of a de novo hearing by a Justice or judge of that court who has been appointed in accordance with s. 72 of the Constitution.  It goes without saying that the Parliament cannot require the court to delegate any of its powers.  Nor, in my opinion, will anything less than a hearing de novo to review the exercise of the power by the officer be sufficient.  That is to say, appellate review is an insufficient condition of the delegation of the exercise of the power; there must be a complete rehearing of the facts and the law as they exist when the Justice or judge reviews the order made by the officer.  Otherwise, the officer and not the Justices or judges of the court would be exercising the original jurisdiction of the court.”

Dawson J, another member of the majority, said (at 122) that where a court delegates judicial functions, “a federal court must retain effective supervision and control over the exercise of its functions by its officers.”  He referred (at 125) to “the specific provision [in the Rules of the Family Court] that the review be by way of hearing de novo”, commenting:

“But even if there had been no such provision the result would, in the absence of any provision to the contrary, have been much the same.  For where the function of exercising a discretion is delegated by a court, as it may be delegated to a Registrar, the exercise of the delegated discretion cannot confine the exercise of the same discretion by the person in whom it is primarily reposed:  Evans v. Bartlam [1937] A.C. 473, at p. 478; Blundell v. Rimmer [1971] 1 W.L.R. 123, at p. 128; [1971] 1 All E.R. 1072, at p. 1076; and C.M. Van Stillevoldt B.V. v. E.L. Carriers Inc. [1983] 1 W.L.R. 207, at p. 210; [1983] 1 All E.R. 699, at p. 702.  Upon a hearing by way of review of the decision of a Registrar the court is exercising its own discretion.  There are not the same restrictions which exist when there is an appeal from a judge to whom a discretion is confided, rather than delegated, at first instance.

If the discretion of the Court cannot be confined, neither can the full examination of the facts upon which the exercise of the discretion depends.  Indeed, this is implicit in an earlier passage in the judgment of Dawson J, where he said (at 124) that the review by way of a hearing de novo “means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar.”

Gaudron J drew attention (at 150-151) to the nature of the delegated power as one which had been “vested in a court”.  From this, her Honour concluded:

“As a matter of substance it is necessary that appropriate procedures exist for supervision by the court, both as to observance of the limits attached to delegated powers and as to the exercise of those powers” (emphasis added).

Only in the joint judgment of Mason CJ and Deane J is there any clear statement suggesting that a right of appeal, as distinct from a review by way of hearing de novo, might, if available on questions of both fact and law, be sufficient to render a particular delegation valid.  But it is necessary to see what their Honours said in context.  They were discussing delegations in general, and they made it clear that delegations “of some part of the jurisdiction, powers and functions” of the Court had to be quite strictly confined.  Whether by way of review or by way of appeal, a litigant had to be guaranteed “recourse to a hearing and a determination by a judge”.  Their Honours said (at 95):

“It seems to us that, so long as two conditions are observed, the delegation of some part of the jurisdiction, powers and functions of the Family Court as a federal court to its officers is permissible and consistent with the control and supervision of the Family Court’s jurisdiction by its judges.  The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court.  This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters.  The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court.  For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid.  Certainly, if the review is by way of hearing de novo, the delegation will be valid.  The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge.  In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration.”

What emerges from this examination of the constitutional position, as declared by the High Court (and see also Cheesman v Waters (1997) 148 ALR 21 at 27), is that the control and supervision of the Court are required to be so real and effective that the decision, which is within the Court’s jurisdiction, though made by an officer who is not a judge, can still be seen to be a decision of the Court.  That would obviously not be so if a resolution of disputed facts which was its foundation were not examinable by the judge.

In any case, as Dawson J points out (at 125) in the passage I have cited from his judgment, even in the absence of the constitutional imperative which a delegation of power by a federal court must acknowledge, delegations by courts to registrars and masters, subject to review by a judge, have uniformly been held to involve a complete reconsideration of the case.  Dawson J refers to Evans v Bartlam [1937] AC 473 at 478, where Lord Atkin said:

“I wish to state my conviction that where there is a discretionary jurisdiction given to the Court or a judge the judge in Chambers is in no way fettered by the previous exercise of the Master’s discretion.  His own discretion is intended by the rules to determine the parties’ rights: and he is entitled to exercise it as though the matter came before him for the first time.  He will, of course, give the weight it deserves to the previous decision of the Master: but he is in no way bound by it.”

Lord Atkin’s dictum was cited in C M Van Stillevoldt BV v E L Carriers Inc [1983] 1 WLR 207 as applicable generally to cases where a judge in chambers hears an appeal from a master or registrar.  Griffiths LJ said (at 208-209):

“It is well-settled that in such cases the judge is in no way fettered by the master’s or the registrar’s decision.  It is the duty of the judge to consider the matter afresh and to exercise his own discretion, of course having due regard to the decision below but being in no way inhibited by it in the exercise of his discretion.  By contrast, if the judge’s decision is then appealed to the Court of Appeal, the Court of Appeal will only interfere if it is satisfied that the judge has exercised his discretion wrongly, applying principles to that determination which are now too well-established to require repeating.”

In Tidswell v Tidswell (No. 2) [1958] VR 601 at 605 Herring CJ, in a passage adopted by Dawson J in Harris v Caladine at 126, explained that, in such cases, the master is exercising “a power entrusted to the discretion of the Court or a judge”, and that therefore when the master’s decision is questioned, litigants are entitled to “the benefit of having that discretion exercised by the judge, to whom it was originally entrusted, a benefit which it seems reasonable to suppose it was intended they should have.  The question is whether an intention to deprive litigants of such benefit should be imputed to the framers of the ... rules”.

I turn to the judgment of the learned judge from whom this appeal comes.  His Honour said:

“The facts as found by the Judicial Registrar were open to him to be found on a fair reading of the transcript of evidence of Mr Griffin whose demeanour he was able to observe in the witness box.  I am in a position where Mr Griffin’s evidence before the Judicial Registrar is evidence before me.  This is no basis upon which I can substitute a different view about the credibility and persuasiveness of Mr Griffin’s evidence for that expressed by the Judicial Registrar.”

With respect, this is to approach the matter in a way which is the opposite of that so clearly stated by Lord Atkin.  What Lord Atkin held must mean that his Honour, conducting such a review, was “in no way bound” by “the previous decision of the [judicial registrar]”.  It was irrelevant that the findings of the judicial registrar were open to him, and it was also irrelevant how he made them, since the judge was required “to consider the matter afresh”.  But, in fairness to his Honour, it should be said that some of the language he used was taken from the judgment of the Full Court of the Industrial Relations Court in Wyndham Lodge Nursing Home Inc v Reader (No 2) (supra).  The actual decision in that case turned very much on its peculiar facts.  However, the Court discussed a number of judgments of single judges of the Industrial Relations Court, without adverting to Evans v Bartlam, Tidswell, or any other cases concerning the principles governing appeals from masters or registrars to a judge generally, and enunciated a number of dicta concerning the duty of a judge hearing a review under s 377.  If these dicta represent the law as it should be applied in this Court, the passage I have quoted from the judgment at first instance would find support in them. 

Before turning to Wyndham Lodge Nursing Home, I note that the decisions in the Industrial Relations Court are by no means consistent.  Plainly, the practical problems involved in reviews of decisions of judicial registrars, in various circumstances, have evoked different responses in different minds.  See Andrews v Uniting Church in Australia Frontier Services (1995) 60 IR 437 at 442-443, per Gray J, and  Cosco Holdings Pty Ltd v Thu Thi Van Do (Madgwick J, unreported, 30 June 1997).  The conflict of views is of particular importance to this Court because of the enactment of s 18AC of the Federal Court of Australia Act in terms corresponding to those of s 377 of the Industrial Relations Act.

The passage in Wyndham Lodge Nursing Home, to which the learned judge at first instance was referring in the section of his judgment I have quoted, should be set out.  The Court said (at 258):

“Where contested ultimate findings of fact depend on what conclusions ought to be drawn from primary facts that are uncontested at the review stage, the judge conducting the review is as well able to make those findings as was the judicial registrar.  In such a case, no difficulty arises from the fact that the judge is considering the case ‘on the papers’, without seeing and hearing the witnesses.  The task involves an analysis of the primary facts and the exercise of a judgment.  However, where there is a dispute as to primary facts, it will usually be impossible for the judge to resolve it ‘on the papers’.  Determination of a dispute about primary facts involves choosing between conflicting elements of the evidence.  This almost always involves an assessment of the witnesses, not only as to their truthfulness but also as [to] their characters and personalities and the likelihood that they acted in a particular way.  Without seeing and hearing the witnesses, a judge has no basis for substituting his or her opinion on such matters for that of the judicial registrar.   The judge will be bound to hold that the party who bears the onus of proof on the disputed issue has failed to discharge that onus.”

Pervading this passage is the accordance of an independent authority to the decision of the judicial registrar.  The first sentence, indeed, does concede to the reviewing judge that he or she “is as well able” to make ultimate findings of fact “as was the judicial registrar”, but this, of course, would be the position on appeal from a judge to an appellate tribunal.  The passage goes on to state that “where there is a dispute as to primary facts, it will usually be impossible for the judge to resolve it ‘on the papers’.”  This statement is of little help in the present case, not only because the case may not be usual, but also, as Carr J points out, because the resolution required is not merely “on the papers”, but partly “on the papers” and partly on oral evidence.  Various permutations and combinations of that situation arise constantly in commercial and other litigation, having nothing to do with reviews of decisions of judicial registrars.  It is not in those cases suggested that a judge cannot as a general rule accept an affidavit or statement of an ill, absent, or dead witness, or transcript taken on commission or on some other occasion, or various other forms of documentary evidence, against oral or other documentary evidence which he or she finds unacceptable.  Well known provisions of Evidence statutes are based on the assumption that the judge can and will.  Of course, in some cases a court may be unable to do so, but resort to the onus of proof in such circumstances is unfortunate and infrequent.  In the present context, it would be particularly unfortunate, since almost any dismissal of nursing home staff may involve the evidence on either side of sick and elderly persons who may well be unable to testify on repeated occasions.

But the statement of most relevance to the present case is the statement that “[w]ithout seeing and hearing the witnesses, a judge has no basis for substituting his or her opinion on such matters for that of the judicial registrar”.  This not only accords the judicial registrar an independent authority, but applies to the hearing de novo which the review proceeding involves a principle applicable to appeals, and gives it a more absolute application than it receives even there.  On review, it is not a question whether the judge has “basis for substituting his or her opinion ... for that of the judicial registrar”.  It is the judge’s duty, as established by the longstanding authorities cited above, which were not adverted to in Wyndham Lodge Nursing Home, to form his or her own opinion, considering the matter “afresh”.  If the judge is “in no way bound” by the decision of the judicial registrar, that includes the judicial registrar’s findings on credibility.  The fact that a particular witness may be unavailable, so that the judge must assess his evidence on the transcript, can make no difference.  Certainly, the decision of a party to tender the transcript of the evidence of a witness, who cannot or will not be called, involves in itself no change of the nature of the proceeding; it is still a hearing de novo.  An aspect of its newness is the tender of this evidence by transcript, just as much as the recalling of the witness to give further evidence would also be an aspect of its newness.   Nor is it to the point that the judicial registrar may have had an advantage denied to the judge.  The judicial registrar was not the judge appointed to decide under the Constitution.  And, of course, the judge has usually other advantages, including the benefit of the second thoughts of counsel on both sides.

Undoubtedly, there will be cases which cannot be determined without some oral evidence.  Spender J referred to such cases in Aldridge v Booth (1988) 80 ALR 1 at 7-8.  That was not a matter involving a review of the decision of a judicial registrar, and his Honour was concerned with the method of hearing to be adopted, not with the making of a determination that no determination was possible except by the application of the onus of proof.  Another example is McCormack v The Commissioner of Taxation of the Commonwealth of Australia (1979) 143 CLR 284, where the question was whether land had been purchased for the purposes of resale at a profit.  The objective evidence being equivocal, only the credit to be afforded the appellant’s own evidence of her purpose could be decisive.  In the circumstances, it was “essential that she be evaluated and a conclusion drawn whether or not she was a truthful person”, as Barwick CJ put it at 293.  The matter was referred back for rehearing, as indeed was Wyndham Lodge Nursing Home.  Particularly having regard to the express power in s 377 (2) for the Court to review a decision of a judicial registrar “of its own motion”, it seems to me the remedy in such a case arising under s 377 ought, at least generally, to be the giving of fresh directions. 

While, as I have said, the principle applicable to appeals from a judge cannot be applied to a proceeding under s 377, which is a hearing de novo, it is worth noting that, even in the case of a true appeal, the rule restricting an appellate court in respect of findings of fact based on the demeanour or credibility of witnesses is not absolute.  It does not necessarily apply in all cases.  This proposition was elaborated by Deane and Dawson JJ in some detail, with the citation of a wealth of authority, in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479-481.  A number of the decisions are discussed in my judgment (with which Tamberlin J agreed) in Rennie v Commonwealth of Australia (1995) 61 FCR 351 at 353-357, and see also the joint judgment of Spender, O’Loughlin and Branson JJ in Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 at 128-129.

For completeness, I should add that, although the authorities cited by Dawson J in Harris v Caladine, to which I have referred, were not mentioned in Wyndham Lodge Nursing Home, two decisions were relied on as supporting the dicta giving independent weight to a judicial registrar’s findings on credibility.  These were the decisions in Cox v South Australian Meat Corporation (1995) 60 IR 293 and Macs Foods Centre Pty Ltd v McLeish (1995) 62 IR 381.  But there is no principle of general application established by these decisions, and in neither are the authorities cited by Dawson J discussed.  Cox turned on a special agreement by the parties not to avail themselves of the hearing de novo provided by law, but to ask the judge to treat the matter as an appeal.  No point was raised as to whether the Court should accept such a consent jurisdiction, and the case was decided on this special basis.  It cannot be an authority deciding the position generally under s 377.  Macs Foods was treated in Wyndham Lodge Nursing Home at 257 as illustrating “a similar approach”, but, as Madgwick J pointed out in Cosco Holdings, it involved no special agreement of the kind reached in Cox.  The only questions raised in Macs Foods (as appears from the judgment at 382) were factual, and there was no debate at all about questions of legal principle.  Although the Court in Wyndham Lodge Nursing Home said of this decision (at 257) that the learned judge’s “approach is open to a judge if the parties agree that the review is to be conducted as if it were an appeal” (emphasis added), there had been (as I have said) no such agreement, and the judge in fact expressly recognized in Macs Foods (at 381) that what was involved was “a rehearing de novo by a judge of the Court”.

For all these reasons, I have concluded that, in the present case, it was an error to treat the judicial registrar’s findings on credibility as in some measure beyond challenge.  But I agree with Carr and R D Nicholson JJ that the learned trial judge reached the same ultimate conclusion upon a separate ground which was free of error.  Accordingly, as was noted at the beginning of these reasons, the appeal should be dismissed with costs.

Associate:

Dated:              5 December 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The respondent have liberty to apply, if he sees fit, for costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

CARR J:

INTRODUCTION

This is an appeal against a judgment of a judge of this Court who, on 26 August 1997, dismissed the appellant’s application for review of a decision, made on 17 September 1996, by a Judicial Registrar of the Industrial Relations Court of Australia.  The Judicial Registrar had dismissed the applicant’s application under s 170EA(1) of the Industrial Relations Act 1988 (Cth) (“the IR Act”) for relief in respect of allegedly unlawful termination of his employment.

FACTUAL BACKGROUND

At all material times until 19 November 1995 the appellant was employed as a registered mental health nurse at Armadale Lodge, a nursing home which is conducted by the respondent Minister for Health.  Armadale Lodge provides nursing care for psychogeriatric patients.  The appellant commenced work at Armadale Lodge in May 1988.  On 19 November 1995, the appellant was suspended from his employment, with pay, pending the outcome of an investigation.  The investigation was concerned with, among other things, an incident which was alleged to have occurred on 13 November 1995 involving an elderly patient, Mr Griffin (“the Griffin Incident”).  According to the facts found by the Judicial Registrar (to which I refer solely as a convenient method of setting the background of this appeal), the following were the circumstances of the Griffin Incident:

       .    On 13 November 1995, Mr Griffin, who was suffering from depression, was incontinent of urine when the appellant and a Mr Zegulewski (another mental health nurse employed at Armadale Lodge) attended upon him in the morning and requested that he get up and shower;

       .    Mr Griffin was embarrassed at his incontinence and initially refused to get out of bed;

       .    The appellant and Mr Zegulewski returned to Mr Griffin some fifteen minutes later.  Mr Griffin was still under the bed clothes.  The appellant grabbed Mr Griffin’s feet and swung him over to one side of the bed.  He then grabbed Mr Griffin by the shoulders, stood him up and marched him down a passageway to a bathroom, pushing him in the back along the way;

       .    Mr Griffin (aged 74 at the time of this incident) was frail and small in stature; and

       .    On arrival at the bathroom, the appellant told Mr Griffin to undress, which he did, and get under the shower.  The shower had a handpiece connected to it which the appellant “shoved” on Mr Griffin’s head.  Initially the water was too cold, then it was too hot.  Eventually, when the temperature was right, Mr Griffin commenced to shower himself and the appellant left the bathroom.

The investigation into the Griffin Incident took about one month.  On 15 December 1995, at the conclusion of the investigation, the respondent terminated the appellant’s employment on the ground that the appellant’s conduct towards the Mr Griffin constituted serious misconduct warranting dismissal.  The Director of Nursing at Armadale Lodge, Mr Paul Howard, on that date handed to the appellant a letter referring to the Griffin Incident and other earlier incidents.  The appellant complained that there was no valid reason for terminating his employment.  Further and in the alternative he complained that the termination of his employment was harsh, unjust or unreasonable.  He contended that the respondent had thus contravened s 170DE(1) and (2) of the IR Act.  Efforts by the Australian Industrial Relations Commission to settle the dispute were unsuccessful.  On 18 December 1995 the appellant applied to the Industrial Relations Court of Australia for reinstatement of his employment.  The application was heard by the Judicial Registrar over several days in April and May 1996.  The appellant gave evidence in those proceedings and called three other witnesses.  They included Mr Zegulewski, a Mr Sharples (an enrolled mental health nurse employed at Armadale Lodge) and a Mr Dzieciol.  Mr Dzieciol is a legal practitioner employed as an industrial officer with the Australian Nursing Federation.  The respondent called thirteen witnesses.  They included Mr Griffin, Mr Colley (a clinical nurse-specialist employed at Armadale Lodge), Mr Miller (a mental health nurse clinician also employed at Armadale Lodge) and Mr Howard.  The Judicial Registrar, having reserved his decision, delivered judgment on 17 September 1996.  In summary, the Judicial Registrar rejected both the appellant’s evidence and that of Mr Zegulewski insofar as it conflicted with Mr Griffin’s evidence, save in one respect.  That one respect was Mr Griffin’s evidence that only the appellant had initially attended on him on the morning in question.  The Judicial Registrar held that there was valid reason for terminating the appellant’s employment and that such termination was not harsh, unjust or unreasonable.  He dismissed the application.  On 3 October 1996, the appellant applied, under s 377 of the IR Act, for orders that the whole of the Judicial Registrar’s decision of 17 September 1996 be set aside.  On 25 November 1996, the following relevant directions were made in the course of the interlocutory proceedings in the application:

“1.       The Review is to be conducted by oral evidence with leave to the parties to file affidavit evidence.  Any notice of intention to cross-examine deponents to be filed no later than 10 days prior to hearing. 

. . .

4.         By consent the parties agree to rely on the transcript evidence of the Applicant D’Antuono, Zeguleuski, (sic) Griffin, Mrs Maier, Mr Howard and Mr Colley.”

On 25 June 1997 (during the hearing of the application) the legal representatives of the parties executed a document, which provided as follows:

“The Applicant and Respondent consent to the following pages of transcript, from the proceedings before Judicial Registrar Ritter, being relied upon for the purposes of the review before his Honour Justice Marshall:” [There then followed a list of witnesses and the transcript references to their evidence.  The witnesses included the appellant and Mr Zegulewski on the appellant’s side and Messrs Colley, Griffin, Howard and a Ms Maier on the respondent’s side.] 

At the hearing before the learned trial judge the evidence of the abovenamed witnesses was treated as evidence before his Honour.  However, both the appellant and Mr Zegulewski also gave oral evidence. 

The primary Judge was faced with a conflict between the transcript of evidence of, for example, Mr Griffin and Mr Colley on the one side in relation to the Griffin Incident and the evidence (both in transcript form and oral) of the appellant and Mr Zegulewski on the other side.  His Honour, after referring to that matter, said:

“The facts as found by the Judicial Registrar were open to him to be found on a fair reading of the transcript of evidence of Mr Griffin whose demeanour he was able to observe in the witness box.  I am in a position where Mr Griffin’s evidence before the Judicial Registrar is evidence before me.  This is no basis upon which I can substitute a different view about the credibility and persuasiveness of Mr Griffin’s evidence for that expressed by the Judicial Registrar.”

His Honour made similar observations in relation to Mr Colley’s evidence.  His Honour then referred to a decision of the Full Court of the Industrial Relations Court, Wyndham Lodge Nursing Home v Reader (No 2) (1996) 65 IR 253, in which a similar problem was considered.

His Honour, in particular, referred to that portion of the following passage (at p 258) which I have underlined:

“As the word “review” itself indicates, the task of the judge is to look again at the case.  If the parties, or one of them, wish a full rehearing with wholly fresh evidence, they are entitled to this.  If they wish to confine the scope of the new evidence, or to argue the review by reference only to the evidence tendered to the judicial registrar, the judge is likely to accede to this wish.  Although the judge has a discretion to go behind the judicial registrar’s findings, regardless of the parties’ attitude, there will ordinarily be no point in forcing the parties to litigate issues about which they are agreed.

Because the possible attitude of parties spans a wide spectrum, so does the significance on review of the judicial registrar’s findings of fact.  If all the evidence is tendered anew, the judicial registrar’s findings of fact will be of no assistance.  The evidence being different, the judge will ignore the judicial registrar’s findings and to [sic] make his or her own findings on the basis of the evidence adduced on the review.  On the other hand, to the extent that the parties agree to accept the judicial registrar’s findings of fact, the judicial registrar’s statement of findings will be the foundation upon which the review is argued.

Where contested ultimate findings of fact depend on what conclusions ought to be drawn from primary facts that are uncontested at the review stage, the judge conducting the review is as well able to make those findings as was the judicial registrar.  In such a case, no difficulty arises from the fact that the judge is considering the case “on the papers”, without seeing and hearing the witnesses.  The task involves an analysis of the primary facts and the exercise of a judgment.

However, where there is a dispute as to primary facts, it will usually be impossible for the judge to resolve it ‘on the papers’.  Determination of a dispute about primary facts involves choosing between conflicting elements of the evidence.  This almost always involves an assessment of the witnesses, not only as to their truthfulness but also as (to) their characters and personalities and the likelihood that they acted in a particular way.  Without seeing and hearing the witnesses, a judge has no basis for substituting his or her opinion on such matters for that of the judicial registrar.  The judge will be bound to hold that the party who bears the onus of proof on the disputed issue has failed to discharge that onus.”

His Honour felt that, in all the circumstances, he was bound to accept the evidence of Mr Griffin and Mr Colley concerning the Griffin Incident.  He said as much.  However, his Honour then made some observations about the evidence which he had heard in the review proceedings.  His Honour said that he was not convinced that the appellant was truthful in his account of the Griffin Incident.  He said that he was also “less than impressed” with the evidence of both the appellant and Mr Zegulewski and then concluded:

“Although bound to accept the Judicial Registrar’s findings on the evidence of Mr Griffin and Mr Colley, I am fortified, having regard to the consequences thereof, by my consideration that Mr D’Antuono was not a truthful witness and that Mr Zegulewski’s account of the Griffin Incident was unpersuasive. 

His Honour found that the appellant’s conduct in the Griffin Incident and particularly his rough treatment of Mr Griffin constituted a sufficient basis alone for his termination.  The termination, so his Honour held, was thus for a valid reason, that is, mistreatment of a patient in his care.  This mistreatment provided the respondent with a valid reason to terminate the appellant’s employment.  His Honour concluded that the respondent had discharged his onus of proof under s 170 EDA(1) of the Act.  Accordingly, his Honour dismissed the application.

THE APPEAL

The appellant seeks orders that Marshall J’s decision be set aside, a declaration that the termination of his employment was unlawful, that he be reinstated to a similar position in which he was previously employed by the respondent and that he be paid all his entitlements together with interest thereon at the rate of 12% per annum.

GROUNDS OF APPEAL

The principal grounds of appeal were that his Honour was said to have erred:

     .      in reversing the statutory onus placed on the respondent under s 170EDA(1)(a) to prove a valid reason for terminating the appellant’s employment;

     .      alternatively, in holding, on the evidence, that the respondent had discharged that onus;

     .      in appearing to decide the case as if it were “an appeal by agreement of the parties” and failing to appreciate that where there are disputes about primary facts or controversial issues between the parties, “all parties must give oral evidence again so that the credibility of witnesses can be ascertained”;

     .      in accepting the findings of facts and credibility of the Judicial Registrar at first instance in all respects “without independently considering the evidence again”.  [In this ground of appeal the appellant asserted that “the parties had only agreed to admit the transcript for cross-examination purposes and had not agreed to accept any findings of fact by the Judicial Registrar”]; and

     .      in holding that the evidence of three “critical” witnesses (Mr Griffin, Mr Colley and Mr Howard) was not the subject of further cross-examination before the Court on review when, so the appellant asserts, the appellant had sent a written request to the respondent to call those three witnesses (and one other witness) so that the appellant’s counsel could cross-examine them, and the respondent had declined to do so.

There were then set out in the notice of appeal some fourteen further pages of complaints.  About half of those related to factual matters.  The remainder comprised an allegation that his Honour had erred in rejecting the appellant’s complaint that the respondent had denied him procedural fairness and an allegation that his Honour had admitted evidence, and in particular evidence of previous incidents involving the appellant, which should not have been admitted.  Many of the complaints concerning factual matters were expressed in terms of the primary judge having “failed to appreciate” what were said to be “major inconsistencies in the transcript evidence”.  In that regard, in my view, the notice of appeal in this matter was “inappropriately and unhelpfully drawn” - to use the description applied to the notice of appeal which was before a Full Court of this Court in Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 at p 128.  I return to the main grounds of appeal.

WAS THERE AN ERROR OF LAW?

A.        The Griffin Incident

In my view, the learned primary judge misconstrued what the Full Court meant in the passage from Wyndham Lodge which I have set out above.  When the Full Court said that “without seeing and hearing the witnesses, a judge has no basis for substituting his or her opinion on such matters for that of the Judicial Registrar” this did not mean that in the present case his Honour was bound to accept the evidence of Mr Griffin and Mr Colley concerning the Griffin Incident, as his Honour expressly held.  On the contrary, a reading of the passages at pp 258-259 of the Full Court’s reasoning in Wyndham Lodge makes it clear that in those circumstances the Full Court reached a different conclusion.  The conclusion was that if the reviewing judge could not resolve a dispute about primary facts on the basis of the transcript, he or she must hold that the party bearing the onus of proof on that issue has failed to discharge that onus.

It is not strictly necessary for me to express a view on that conclusion.  That is because there are major differences between Wyndham Lodge and the present case.  In Wyndham Lodge neither the appellant nor the respondent gave evidence, whereas in the present case the appellant and Mr Zegulewski gave evidence and were disbelieved.  Furthermore, the respondent tendered some further affidavits, the deponents to those affidavits were cross-examined, and all the exhibits in the proceedings before the Judicial Registrar were admitted into evidence by consent.  However, I think I should register my respectful disagreement with the conclusion drawn by the Full Court in Wyndham Lodge.  In my opinion, an attempt to conduct a review, being a review which requires choosing between conflicting evidence to resolve a dispute about primary facts, on the basis of the transcript of the proceedings below runs a great risk of being vitiated by legal error from the outset.  But I do not agree with the Full Court’s observation to the effect that, without seeing and hearing the witnesses, a judge has “no basis” for substituting his or her opinion for that of the Judicial Registrar.  I prefer what Gray J wrote in Andrews v Uniting Church in Australia Frontier Services (1995) 60 IR 437 at 443:

“The duty of the judge is to ignore the findings and conclusions of the judicial registrar, except insofar as they may be adopted by the parties, and to deal with the matter afresh, even if relying on the evidence which was before the judicial registrar, supplemented as necessary.”

I agree, respectfully, with the substance of the observation of Madgwick J in Cosco Holdings Pty Ltd v Thu Thi Van Do & Ors (unreported, Industrial Relations Court of Australia, 30 June 1997, Decision No. 215 of 1997) that there may be cases where it will be quite possible for the judge satisfactorily to resolve a dispute about primary facts on the papers.  I am inclined to think that they will be exceptional cases.  I agree also with the view which his Honour expressed in that case concerning the status (or rather lack of it) of any finding by a Judicial Registrar about credit, when a matter comes before a judge for review.  But I respectfully disagree with his acceptance of the conclusion in Wyndham Lodge to which I have referred above. As the Full Court pointed out, the situation is different where the primary facts are uncontested at the review stage.  In those circumstances the judge can make ultimate findings of fact “on the papers”.  Otherwise, where the primary facts are in dispute, and the parties have not agreed to conduct the review as an appeal, I do not think that in an ordinary case the judge should proceed to hear the matter “on the papers”.  To do so would, in my view, be very likely to give rise to such a substantial procedural error as to constitute error of law.  I do not think that it is appropriate or satisfactory, if a judge gets into that situation, to dispose of the matter on the basis that the party bearing the onus of proof has failed to discharge that onus.  Such a conclusion might well be appropriate where the trial has been properly conducted.  But, generally speaking, in the circumstances posited, the trial, ex hypothesi, will not have been properly conducted.  The situation would be analogous to the circumstances in McCormack v Federal Commissioner of Taxation (1978) 143 CLR 284 where (at 293-4) Barwick CJ observed:

“The truth is that the matter has never properly been tried ... The Supreme Court did not, it seems to me, adopt a correct approach to the appeal before it.”

I should emphasize that I am referring to what I consider to be a sensible general rule, to which procedural fairness and the rules of evidence will allow exceptions.  The relevant provisions for review of decisions of Judicial Registrars are now to be found in s 18AC of the Federal Court of Australia Act 1976 (Cth), which was inserted with effect from 25 May 1997.  Those provisions are very similar to s 377(1) and (2) of the IR Act which in turn [as Northrop J noted in Keating v Teico Investments Pty Ltd (1994) 57 IR 339] were very similar to s 31A(6) and (7) of the Bankruptcy Act 1966 (Cth), providing for review of decisions made by the Registrars of the Federal Court.  The nature of such judicial review has been discussed in a line of cases which were (in the context of the IR Act) comprehensively analysed by Moore J in Association of Professional Engineers, Scientists and Managers Australia v Deniliquin Council (1995) 58 IR 275, a decision cited with apparent approval by the Full Court of the Industrial Relations Court of Australia in Wyndham Lodge.  The cases include Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374, an earlier decision of Northrop J, to which his Honour referred in Keating and which was recently cited with approval by the Full Court of this Court in Cheesman v Waters (1997) 148 ALR 21 at p 28.

From a constitutional viewpoint, Mason CJ and Deane J in Harris v Caladine (1991) 172 CLR 84 at 95 held that a delegation subject to review or appeal by a judge or judges of the Court on questions of both fact and law would be valid.  Their Honours added their view that if the review were by way of hearing de novo the delegation would “certainly” be valid.  The Family Law Rules which contained the delegation in question in that case quite clearly provided that there would be review by way of a hearing de novo (see p 98).  McHugh J (at p 164) expressed the view that anything less than a hearing de novo would not be sufficient.  I do not think that it has yet been finally decided that such a degree of review is essential for such delegations to be valid.  But I agree with the line of authority which suggests that that is the type of review provided for by s 18AC of the Federal Court of Australia Act and its predecessor in the IR Act. 

I think that there is some substance in the appellant’s complaint that the learned primary judge, in stating that he was bound to accept the Judicial Registrar’s findings and the evidence of Mr Griffin and Mr Colley, was at that point treating the review as if it were an appeal by way of a re-hearing, not a hearing de novo.  Although I was concerned and somewhat troubled by the fact that the learned primary judge on two occasions, within a fairly short span, said that he considered that he was bound to accept Mr Griffin and Mr Colley’s evidence and to accept the Judicial Registrar’s findings on that evidence, I have formed the view that his Honour independently came to the same conclusion.  His Honour said that having observed the appellant in the witness box, he was not convinced that he was truthful in his account of the Griffin Incident.  In particular, his Honour said that he did not accept the appellant’s evidence that Mr Griffin was punching him and Mr Zegulewski.  Mr Zegulewski testified that no such punching occurred.  His Honour gave another reason for being “less than impressed with the evidence of” the appellant and Mr Zegulewski.  As Gibbs J observed in Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at p 694:

“... if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts ...”

See also Stephen J at p 714. 

It is clear from the first passage which I have set out above from his Honour’s reasons that he read the transcript of Mr Griffin’s evidence.  It is equally clear, from the next paragraph in his Honour’s reasons, that he read the transcript of Mr Colley’s evidence.  The parties in this matter having agreed that the evidence of various witnesses, including Mr Griffin and Mr Colley, should be taken into account by the primary judge and his Honour having had the advantage of seeing the appellant and Mr Zegulewski give evidence in the witness box (and disbelieving them), he was, in my opinion, entitled to express the view that he accepted the evidence of Mr Griffin and Mr Colley about the Griffin Incident.  This was not a case where the judge embarked upon a hearing purely “on the papers”.  It was one where the parties agreed to admit into evidence portions of the transcript and to call witnesses to give oral evidence.  His Honour disbelieved the evidence of the appellant and Mr Zegulewski about the Griffin Incident.  By agreement of the parties, he had the evidence of Mr Griffin and Mr Colley before him and he accepted it.   There was no error in taking that course. 

The appellant complains that his counsel did not have an opportunity to cross-examine Mr Griffin and Mr Colley upon the evidence contained in the transcript of the proceedings before the Judicial Registrar.  But the appellant could have insisted, as a condition of the agreement concerning the admission of the transcript of evidence, that all witnesses be produced for cross-examination.  He did not do so.  Alternatively, when it became apparent that the respondent did not propose to call Mr Griffin and Mr Colley to give evidence, the appellant could have sought an order from the primary judge requiring those witnesses to be produced for cross-examination.  No such application was made.  In those circumstances the appellant does not, in my view, have any grounds for complaint. 

B.        Procedural Fairness

The appellant complained that the primary judge had “failed to give any or sufficient weight or consideration to the fact that” certain documents which were used by the respondent and “formed bases on the determination to dismiss” were not supplied to him before his meetings with Mr Howard.  The appellant submitted that he was denied procedural fairness by the respondent by not having access to those documents.  There were ten such documents.

Section 170DC of the IR Act provided:

“170DC    An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:

(a)       the employee has been given the opportunity to defend himself or herself against the allegations made; or

(b)       the employer could not reasonably be expected to give the employee that opportunity.”

In relation to this matter, his Honour made the following observations:

“In any event, Mr D’Antuono’s main complaint in respect of s 170DC of the Act was that allegations other than those concerning the Griffin incident were raised with him and that he did not have a realistic opportunity to deal with them.  No real complaint appears to have been made in final submissions regarding any failure of the Service [the Armadale Kelmscott Health Service conducted by the respondent] to put to Mr D’Antuono any allegation concerning the Griffin incident.  As I have said above, it was Mr D’Antuono’s role in that incident which was sufficient to justify his termination.

To the extent that Mr D’Antuono complained about a lack of procedural fairness regarding the Griffin incident, it was by way of the proposition that he was not given, in the disciplinary interview, every single piece of paper which the Service had which related to that issue.  Even if that was the case, s 170DC of the Act has not been transgressed.  [His Honour then referred to the decision of Wilcox CJ in Gibson v Bosmac (1995) 60 IR 1, at 7.]  I agree with the above observations of Wilcox CJ.  I consider that Mr D’Antuono was made aware of the precise nature of the concerns of the Service and was given a full opportunity to respond.  Consequently, I am of the view that no breach of s 170 DC of the Act occurred in respect of the termination of Mr D’Antuono’s employment.”

Mr I Carija, counsel for the appellant, submitted that the primary judge had again “essentially ... accepted the position and findings of the Judicial Registrar” in relation to this matter as well.  I do not think that is a fair reading of his Honour’s reasons for judgment.  It is true that his Honour set out twelve points from the Judicial Registrar’s reasons for judgment and stated that he was in no position to dispute the Judicial Registrar’s findings that Mr Howard’s investigation was “thorough and genuine” and that Mr Howard gave Mr D’Antuono an opportunity to defend himself.  I respectfully disagree with his assertion that he was in no position to dispute the Judicial Registrar’s findings in that regard.  However, his Honour went further and said that “on the face of the transcript, I agree with them”.  That shows, in my view, that his Honour had read Mr Howard’s evidence concerning his investigation and the opportunities which he had extended to the appellant to defend himself before reaching the conclusions which I have set out above.  Even if that were not the case, we are in as good a position as his Honour to decide whether failure to disclose these ten documents to the appellant amounted to a contravention of s 170DC of the IR Act.  In my opinion the appellant’s own evidence before the primary judge shows that there was no contravention of that section and his Honour did not err in so finding.  On or about 20 November 1995 the appellant was provided with a letter of that date.  That letter referred to the fact that complaints had been made to Mr Howard by Mr Griffin.  It informed the appellant that he was suspended from duty while further investigations were undertaken, that he would be informed in due course of the progress of those investigations and given full opportunity to reply to the complaints.  On 4 December 1995 Mr Howard wrote to the appellant advising him that he would be provided with all reports and statements on 7 December 1995, requiring his written response by the close of business on 11 December 1995 and his attendance before him on 12 December 1995.  On 6 December 1995 Mr Howard wrote to the appellant again (the appellant received the letter on 7 December 1995).  That letter enclosed three reports or statements made by Mr Griffin in relation to the Griffin Incident and two reports or statements made by Ms Maier in relation to another incident.  I have read those documents.  In my view, by reading them the appellant would have been aware of the precise nature of the respondent’s concern about his conduct or performance (to adopt the language used by Wilcox CJ in Gibson v Bosmac at p 7).  On 11 December 1995 the appellant responded to Mr Howard’s letter of 6 December 1995 in considerable detail.  The appellant’s letter extended over more than four closely-typed pages.  In my opinion, it is quite clear that the appellant was given the opportunity to defend himself against the allegations made.  I do not consider that the respondent was obliged to put to the appellant each and every one of the ten documents about which complaint was made.  Section 170DC required the respondent to give the appellant the opportunity to defend himself.  In my view, he was given that opportunity and there was no contravention of that section.

ADMISSION OF EVIDENCE OF PREVIOUS INCIDENTS INVOLVING THE

APPELLANT

The appellant maintained that the primary judge erred in admitting evidence of other earlier incidents involving the appellant, upon which the respondent had relied, both before the Judicial Registrar and the primary judge to justify the penalty of termination.  In view of his Honour’s finding that the termination of the appellant’s employment was for a valid reason, i.e mistreatment of a patient in his care (Mr Griffin), his Honour said that it was not necessary for him to consider what other reasons the respondent might have had for terminating the appellant’s employment.  In the first part of his address, counsel for the appellant conceded that his Honour’s judgment was not based on any of the material which he contended had been wrongly admitted into evidence.  Nor did he contend that if the Griffin Incident had occurred (as described above) that was not a valid reason for termination.  The appellant’s case was not argued on that basis.  However, in reply counsel submitted that this evidence should not have been admitted because it was “prejudicial information” “which had an overwhelming bearing on the determination of the credibility of the applicant”.  The problem with that submission is that his Honour gave specific reasons for disbelieving the appellant and Mr Zegulewski, none of which had any connection with the earlier incidents.  I would reject the submission.  As I agree with his Honour’s conclusions, and the basis upon which he reached those conclusions, it would be futile further to explore this ground of appeal.

FACTUAL MATTERS

Some of the complaints under this heading of the notice of appeal refer to the “Maier allegation”.  As it was not necessary for his Honour to consider the Maier allegation, I shall not do so either.  That leaves the Griffin Incident.  The grounds of appeal in relation to the Griffin Incident commenced by complaining that the primary judge “Failed to appreciate that there were major inconsistencies in the transcript evidence before the Judicial Registrar of the patient Mr Griffin in that: ...” [there then followed some thirteen matters which were said to constitute such major inconsistencies.]

The appellant thus invites us to interfere with the primary judge’s findings of fact.  In this case his Honour’s conclusions followed from and depended upon his view of the credibility of the appellant and his witness Mr Zegulewski.  His Honour’s estimation of these witnesses obviously formed a very substantial part of his reasons.  For those reasons, I do not consider it appropriate to interfere with his findings of fact - see SS Hontestroom v SS Sagaporack [1927] AC 37 at 47.   

CONCLUSION

For the above reasons I would dismiss the appeal with costs.

A/g Associate:

Dated:              5 December 1997

REASONS FOR JUDGMENT

R D NICHOLSON J:  The factual background is fully set out in the reasons for judgment of Carr J which I have had the advantage of reading in draft.  I rely on them for the purpose of these reasons.

The grounds of appeal maintain the parties had only agreed to admit the transcript for cross‑examination purposes and had not agreed to accept any findings of fact by the Judicial Registrar.  The directions made before the primary judge provided for reliance on the transcript of evidence of the witnesses identified.  The direction in its terms admits only of the construction that it was intended to admit into evidence the transcript without any findings by the Judicial Registrar.  This appeal must therefore be approached on the basis the agreement was limited as contended for on behalf of the appellant.

The grounds then assert the primary judge appeared to decide the case as if it was an appeal by agreement of the parties when it was actually a de novo review hearing.  As part of this ground it is asserted the significance in him so doing was he failed to appreciate that where disputes as to the primary facts of controversial issues exist between the parties, all parties must give oral evidence again so that the credibility of witnesses can be ascertained.

That issue was put in another way in the central ground where it is expressed as the primary judge having erred in reversing the statutory onus of proof placed upon the respondent pursuant to s 170EDA(1)(a) of the Industrial Relations Act 1988 (Cth) (“the Act”) or misapplied it in finding the onus of proof discharged.  The reference to misapplication is a reference to the primary judge having relied on findings of the Judicial Registrar.

The grounds of appeal referred to above are directed to two matters.  The first is the reliance by the primary judge on the passage in Wyndham Lodge Nursing Home Inc v Reader (No 2) (1996) 65 IR 253 in which the Full Court of the Industrial Relations Court said (at 258):

“...where there is a dispute as to primary facts, it will usually be impossible for the judge to resolve it ‘on the papers’.  Determination of a dispute about primary facts involves choosing between conflicting elements of the evidence.  This almost always involves an assessment of the witnesses, not only as to their truthfulness but also as (to) their characters and personalities and the likelihood that they acted in a particular way.  Without seeing and hearing the witnesses, a judge has no basis for substituting his or her opinion on such matters for that of the judicial registrar.”

The second is the consequent statement by the primary judge that he was “bound to accept the evidence of Mr Griffin and Mr Colley concerning the Griffin incident”.

These grounds arise from the circumstances in which the matter proceeded before the primary judge.  The appellant appeared, giving evidence in relation to all allegations against him.  He called Mr Zegulewski who gave evidence only in relation to the Griffin incident.  The respondent called 7 witnesses, only one of whom gave evidence in relation to the Griffin incident.  Four witnesses whom the appellant contends were critical to the Griffin incident and the Maier Incident - Messrs Griffin, Colley and Howard and Mrs Maier - did not give evidence despite a written request on 23 May 1997 on behalf of the appellant to cross-examine them.  Because these witnesses did not attend to give evidence, the case for the appellant contends the respondent failed to discharge its onus of proof.

The appellant had lodged his application for relief in respect of termination of his employment pursuant to s 170EA of the Act.  He invoked the provisions of s 170DE by alleging the termination occurred without valid reason.  Pursuant to s 170EDA(1) the termination was to be taken to have contravened that subsection unless the employer proved there was a valid reason for the termination.  Section 170EDA(2) provides that in the event of the employer so proving, the section casts an onus on the employee to disprove the validity of the cause relied upon for the employer.

The primary judge found the Griffin incident to be the valid reason and therefore held the respondent had discharged the onus on it under s 170EDA(1).

The primary judge reached his conclusion by two routes.  The first was by reference to the transcript of evidence before the Judicial Registrar and the following strands:

·      He set out the facts effectively found by the Registrar from the evidence of Mr Griffin.  He noted the Registrar had rejected both the appellant’s and Mr Zegulewski’s evidence insofar as it conflicted with Mr Griffin’s.  He said there was “no basis upon which I can substitute a different view about the credibility and persuasiveness of Mr Griffin’s evidence for that expressed by the Judicial Registrar.”

·      He concluded the same considerations applied to the evidence of Mr Colley whom the Registrar had found to be an impressive witness.

·      He noted neither the evidence of Mr Colley nor Mr Griffin had been the subject of further cross-examination before the court on review.

·      After citation of Wyndham Lodge and the passage (at 258) reading “without seeing and hearing the witnesses, a judge has no basis for substituting his or her opinion on such matters for that of the judicial registrar,” he said “I consider that I am bound to accept the evidence of Mr Griffin and Mr Colley concerning the Griffin incident.”

The position before the primary judge was that, despite notice to the Judge’s Chambers to the contrary, there was no order sought at the hearing that those witnesses be produced for cross‑examination:  cf Rethmann Australia Environmental Services Pty Ltd v Melide (Wilcox CJ, Industrial Relations Court of Australia, 8 April 1997, unreported) and Wyndham Lodge.

The second route taken by the primary judge was on the basis of the evidence which he had heard from the appellant and Mr Zegulewski.  He concluded that “having observed [the appellant] in the witness box I was not convinced that he was truthful in his account of the Griffin incident.”  He reached this conclusion on two grounds.  The first was there was a direct evidentiary conflict  between the evidence of the applicant and the evidence of Mr Zegulewski as to the presence of punching by Mr Griffin.  The second was he found them unpersuasive and unconvincing on the issue of whether they had discussed the Griffin incident before speaking to management.

The primary judge then concluded that “although bound to accept the judicial registrar’s findings on the evidence of Mr Griffin and Mr Colley, I am fortified, having regard to the consequences thereof by my consideration that Mr d’Antuono was not a truthful witness and that Mr Zegulewski’s account of the Griffin incident was unpersuasive.”

In my view the primary judge was in error in the first route which he took.  In concluding he was bound to accept the evidence of the appellant and Mr Colley concerning the Griffin incident, he accepted the findings of the Judicial Registrar concerning the credibility and persuasiveness of their evidence.  As a question of fact, he went beyond the agreed authority placing the transcript before him.  The agreement did not extend to placing the findings of the Judicial Registrar before him.  He therefore erred in law because there was no evidence of the findings of the Judicial Registrar before him on which he could act.

Furthermore, I agree with Carr J that the passage from Wyndham Lodge (supra at 258) read fully in its context is not an authority for the view that a judge should, in the case of conflicting evidence in the transcript, act on the opinion of the judicial registrar.  I agree that passage is no authority for the primary judge to so have acted.

There is the larger issue whether Wyndham Lodge was correctly decided.  This leads to the general issue of the duty of a judge in exercising the power of review under s 377 of the Act and, by analogy, s 18AC of the Federal Court of Australia Act 1976 (Cth).  Burchett J, whose reasons I have had the advantage of reading in draft, has addressed these issues.  Without in any way detracting from the usefulness of that exposition, I consider no definitive opinion is here required in relation to them because this appeal is able to be resolved on another basis.

It is the second route taken by the primary judge which supports his decision and must lead to the appeal being dismissed in relation to these grounds.  The primary judge had the opportunity to observe the appellant and Mr Zegulewski and to hear their evidence in chief and in cross-examination in relation to the Griffin incident.  A proper reading of his reasons shows he arrived at his own findings of credibility.  He did so not just to reinforce the Judicial Registrar’s findings, but as an independent basis for his decision.  Having heard that evidence he had observations of demeanour to which to apply himself to the evidence which it was agreed should be before him.  In this he acted in accordance with the way in which the parties had determined the case would be resolved and independently of the findings of the Judicial Registrar.  He acted appropriately to fulfil the requirements of a review de novo under s 377:  Harris v Castledine (1991) 172 CLR 84 at 124‑125; cf Andrews v Uniting Church in Australia Frontier Services (1995) 60 IR 437 at 443.

I therefore do not consider the grounds of appeal directed to the onus of proof and related matters can be made out.

I agree, for the reasons expressed by Carr J, that the appellant is unable to complain of any breach of s 170DC of the Act, of the admission of evidence of previous incidents or factual matters.

For these reasons, I consider the appeal should be dismissed with costs.

Associate:

Dated:              5 December 1997