Allianz Australia Services Pty Ltd v Fox

[2008] HCATrans 137

[2008] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S529 of 2007

B e t w e e n -

ALLIANZ AUSTRALIA SERVICES PTY LIMITED

Applicant

and

GREGORY FOX

First Respondent

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Second Respondent

Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 MARCH 2008, AT 3.14 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MS E. RAPER, for the applicant.  (instructed by Baker & McKenzie)

MR R.T. BEECH-JONES, SC:   If it please the Court, I appear with my learned friend, MS L.A. CLEGG, for the first respondent.  (instructed by Paul Murphy & Associates)

HEYDON J:   Yes, Mr Walker.

MR WALKER:   Your Honours, at the heart of the point we seek to have determined by this Court is what we submit is a plain failure in the Full Court to appreciate the difference between ‑ ‑ ‑

HEYDON J:   Can I just interrupt, I am sorry.  If you go to page 50 of the application book, there is no point of general interest here, it is a question of injustice or not.  It is a question of whether Justice Buchanan was correct or not.

MR WALKER:   Yes, your Honour.

HEYDON J:   Paragraphs [56] and [57] are what the majority in the Full Federal Court are concentrating on when they say the Tribunal below them had failed to deal properly with the point that should have been dealt with.

MR WALKER:   That is correct.

HEYDON J:   You submit, do you, that paragraphs [56] and [57] are a satisfactory handling of the point?

MR WALKER:   It is not a question of whether it is satisfactory, it is a question as to whether if it is unsatisfactory it was within jurisdiction and that is our point.

HEYDON J:   I see.  It is an error.

MR WALKER:   It may be an error, that is, it may be wrong.

HEYDON J:   You are prepared to admit that it is an error but say it is within jurisdiction?

MR WALKER:   For the purposes of the argument, yes, that is, our argument is, be it assumed that ‑ ‑ ‑

HEYDON J:   To fail to attend to a significant argument, is that an error within jurisdiction or a constructive failure to exercise jurisdiction?

MR WALKER:   Depending only on what I might call the extremes of questions of degree, in principle that could well be a jurisdictional error; yes, your Honour.  Once one puts the epithets in substantial argument or failure to deal at all with the substantial argument, then that would be likely to be, in most cases, a jurisdictional error.

HEYDON J:   So it comes to this.  You say it was not an attempt to deal with an argument – and I think it has to be regarded as a significant factual argument – a long delay in the reservation of judgment is often regarded as something that puts a big question mark over credit findings?

MR WALKER:   Ten and a half months posed that question, yes.

HEYDON J:   But you say there was a sufficient dealing with it to move into jurisdiction?

MR WALKER:   To keep within jurisdiction.  Yes, that is the distinction upon which our argument turns.  That is where Justice Buchanan located the ground of his dissent and, in our submission, it is where the majority in the Full Court – application book page 75 paragraph 40 – failed, with great respect, fully to appreciate the distinction between what might be for the purposes of argument accepted as a clear jurisdictional error at first instance and the quite different exercise involved upon the appellate scrutiny of that alleged error on the Full Bench appeal, the short elaboration of that being that the authorities, which are not in question, which is why this is not raising a point of general importance requiring this Court to determine a doctrinal difficulty, establish that one must attend, in a case such as presented by the ten‑and‑a‑half month delay in this case, to the consequences of delay, that the key to appellate scrutiny, including where that scrutiny requires jurisdictional error, but that is not.....the key is to attend the consequences.

It follows, as night follows day, that in attempting to apply that approach to appellate scrutiny of long‑delayed reasons, that there may from time to time result outcomes which a relevant observer such as a higher court would say is wrong in the sense that a different outcome should have been arrived at applying the undoubted principle.  That error, where the argument is apprehended, where it is considered, where the principle, that is, the right question is asked concerning the alleged error, is correctly apprehended, produces an error within jurisdiction in relation to the final and important question, namely, applying those principles, what is the outcome in this case?

So, it is not a question of whether the error is significant or not, it was critical.  It determines the outcome of the case one way or the other.  It is a question as to whether the Full Bench committed jurisdictional error.  It will not have done that if it understood that there was jurisdictional error alleged.  It certainly understood that.  We have drawn to attention the passage.  It will not have committed a jurisdictional error if it applies the right test.  It did, the consequences of error.  It may have committed error but it will most certainly be within jurisdiction if a higher court would have reached a different outcome on the same facts and applying the same test.

That is the short point which, in our submission, justifies special leave because if this be jurisdictional error, it is difficult to see how one can distinguish between a wrong outcome within jurisdiction and a wrong outcome outside jurisdiction where the usual appellate exercise has been conducted of applying undoubted or uncontested tests to particular facts, which is all this was.  The test was, what is the consequence of delay?  Whether it be terse or discursive does not matter.  If there is a consideration of an argument and a Full Bench – the passage that Justice Heydon has drawn to attention – it may be thought to be terse but it is certainly complete in terms of content – consideration of consequence, conclusion given and, in our submission, there rests the question as to whether there can be shown jurisdictional error and nothing conduces to placing that outside jurisdiction as opposed to were it available.  Were it available as opposed to further appellate review.

That, in our submission, simply signifies that there is a vast territory open to complaint and correction upon an appeal which is not open to correction in relation to the control of jurisdiction.  That is a distinction of critical importance to the functioning of a system of justice particularly involving hierarchical benches, particularly when the system starts with non‑judicial tribunals.  For those reasons, we would earnestly urge on your Honours the correctness of the approach to the identification of jurisdictional error by Justice Buchanan.  It must be on the Full Bench.  There was, after all, no writ sought in relation to the first instance decision so that jurisdictional error was not in question.

The statement of the question by the Full Bench is unexceptionable.  Was there jurisdictional error by failing to accord that kind of fairness which involves appropriate dispatch in delivering reasons in a case involving what I will call contested facts, although as your Honours appreciate “contested recollection” is perhaps a rather inappropriate expression for this case. 

That is an important matter although I am bound to point out, as I think Justice Heydon noted at the outset, as we have put at the front of our written submissions, we do not propose any adjustment whatever to the clear principle already enunciated in the authorities to which reference has been made.  But it is such a clear departure that, in our submission, it is critical that there be a short hearing for this Court to determine, and to make it crystal clear, that errors of the kind alleged, which may well be true in terms of wrong outcome, simply do not answer the all important description of “jurisdictional”.

HEYDON J:   Your point is that, if the appeal is allowed, there is no significance in it at all ‑ ‑ ‑

MR WALKER:   I am sorry, your Honour.

HEYDON J:   If the appeal to this Court is allowed there is no significance at all to what has happened so far.  If special leave is not granted, a dangerous precedent has been established.

MR WALKER:   Yes.  One must be careful about exaggerating that.  One decision, reported or not, will be added to a body of case law.  I do not wish to suggest that the fabric of judicial control of lesser tribunals is somehow threatened by this decision.  That would be silly.  I do not say that.  But, in our submission, this is a particularly plain transgressing of a quite critical limit, namely, between jurisdictional and non‑jurisdictional error and it stands alongside what in other circumstances, not this circumstance, presents a much broader form of review, namely, appeal by way of rehearing.  It is difficult to overstate the fundamental and important character of appellate benches, in this case on remitter not on appeal, but the great importance of a bench of three, in this case the Full Court of the Federal Court ‑ ‑ ‑

KIEFEL J:   But is the critical question about jurisdictional error or not, according to Justice Buchanan’s approach, whether there could be seen to be a material effect on the outcome, in essence?

MR WALKER:   No.  For Justice Buchanan the question was whether the Full Bench addressed the right question, namely, the consequence of delay, including the question of whether it could be seen from all the particular circumstances of the case that there had been a deprivation of what fairness required.  It was not just a Stead’s Case point.

KIEFEL J:   I had rather thought that the way his Honour approached it and the way the Full Bench approached it was that they understood what the question was but they determined not to answer it because there was another outcome.  If that is the correct description of the essential point, it is really hard to see a principled decision that this Court could make.  It is one that turns principally upon fact, does it not?

MR WALKER:   I am hogtied with the proposition that this depends on its facts but then, after all, most cases do.

KIEFEL J:   The outcome in the circumstances of the case.

MR WALKER:   Yes.  There was a distinction between two arguments.  There was first of all the question of appellate review applying the consequence of delay test to the arguably jurisdictional error at first instance.  Justice Buchanan says the jurisdictional error in question is not the first instance error, which, after all, has been the subject of an appeal, not a constitutional writ.  It is to ask whether the appellate bench apply the right test.  He says, yes, they understood the issue and they applied the right test.  You may disagree with the outcome but it was the right test.  That is the hallmark of error if there be any within jurisdiction.

They then went on, and it is quite plain that they went on after reaching that conclusion, in paragraphs 59 and following in particular to deal with a proposition special to what I will call the emphasis on procedural fairness, that in any event – and I stress “in any event” – quite apart from what they had determined about consequences of delay, he had not been deprived of anything of moment.  I will call that the Stead Case point.  That stood separately from and followed and, in a sense, was unnecessary to the disposition of the case.  That sequence of reasoning in the Full Bench can be seen in the extracts with significant commentary in between by Justice Buchanan on pages 100 to 102 of the application book from paragraph 106 on.

Your Honours will see the passage to which attention has already been drawn elsewhere in the book reproduced in paragraph 106, namely, paragraphs [56] and [57] of the Full Bench.  Paragraph 107 is Justice Buchanan’s, with respect, correct characterisation of what had occurred in the Full Bench.  It is the Full Bench’s supposed jurisdictional error which is in question.  Then, as his Honour notes by his use of the word “also” in the first line of paragraph 108, any fair reading of the Full Bench yields the following paragraphs quoted, [59] through to [64], dealing with what might be called either a variant on an appeal to procedural fairness or what might be called a Stead’s Case point.  You will note the reference to Stead’s Case by reference to the footnote in the quoted paragraph [63] on page 102 at about line 29. 

In our submission it is in that context that one sees the comment that excited disapproval by the majority, namely, in Justice Buchanan’s emphasised quote at about line 35 “we are not required to further examine the consequences of the delayed decision”.  Our point is, on any fair reading, they had already fully and properly considered that question and then they were saying, insofar as the Stead’s Case variant of the argument for the reasons we have set out, to do with the quite peculiar forensic course, there was nothing of value which had been lost. 

We do not have to embrace that last approach in the Full Bench as being correct because our point is simply that, so long as the Full Bench properly performed its allotted task, its duty – in other words exercised its jurisdiction – of considering the complaint on proper grounds, that is, by the proper test, thus they are asking themselves the right question, then a grievance about the outcome could not be corrected by the issue of a writ.  That is the special point.  It is only one point. 

The facts are in an extremely narrow compass.  Of course they are peculiar, and I do not just mean special to this case, I mean they are odd, but they are of no moment because it is not particularly odd that on particular facts you do not have evidence from both parties, that is a relatively common thing, and it is unlikely that anything special will arise to distinguish this case from what might be said in any other case concerning how one examines the consequence of delay.  This is ten‑and‑a‑half months.  Compare that to the horrors of NAIS upon which much weight has been given.

In our submission, whatever one thinks of the correctness of the outcome of the Full Bench, they did their job and doing their job is within jurisdiction.  For those reasons, there should be the correction administered by this Court to what we submit is a plain and important error.

HEYDON J:   Thank you Mr Walker.  Yes, Mr Beech‑Jones.

MR BEECH‑JONES:   Your Honour, in my respectful submission, the significant point is that paragraphs [56] and [57] of the Full Bench’s reasons did not address at all that part of my client’s appeal to that Court which was concerned, amongst other things, with the impact of delay as well as what I might call a Browne v Dunn error upon the assessment of his credit.  Paragraphs [56] and [57] seen in context, a context which I will seek to develop, is solely addressed to what I might call his protagonist evidence and her evidence alone.

Could I just develop that in this way.  before the Commissioner at first instance my client had given evidence that he could not recall the events that were alleged against him but he also stated, specifically in answer to a question from the Commissioner, that the behaviour alleged against him was not the sort of behaviour he would engage in.  Against that was the evidence of Ms Lyon, the person being addressed at paragraphs [56] and [57], who said that he did engage in that behaviour.      Her credit was attacked by counsel for my client and it was put to her that it did not happen in those terms.  There was also some television footage and other various facts. 

The Commissioner addressed that conflict, if I could call it that, at page 23 of the application book.  In paragraph [69] the Commissioner made adverse findings about my client’s credit, matters we complained were never raised with him in cross‑examination, that effectively that he was feigning his loss of memory, the second sentence of paragraph [69]:

Mr Fox’s general demeanour in the witness box impressed me as being evasive. 

Then in the next paragraph, to indicate the way in which the Commissioner dealt with it, the Commissioner said:

On the balance of probabilities, I prefer the evidence of Ms Lyon to that of Mr Fox.  In my view –

and he says how he thinks how my client behaved, and then that he feigned that he could not remember and then says:

This leaves me in a situation where I must rely almost totally on the credibility or otherwise of Ms Lyon’s evidence –

What, we submit, the Commissioner did was expressed a preference for one witness over another having rejected my client’s evidence in a manner we complained about most stridently in the Full Bench, then accepted Ms Lyon’s evidence.  That was how the Commissioner dealt with it.

HEYDON J:   Just one thing, this Browne v Dunn point, what was the question that should have been asked of Mr Fox?

MR BEECH‑JONES:   “I suggest to you you are faking your lack of recollection.  You do remember these events”.

HEYDON J:   On page 31, where is the complaint about that?  That is the notice of appeal to the Full Bench?

MR BEECH-JONES:   It is not referred to in the grounds of appeal but it is referred to in the Full Bench at page 51, paragraph [60]:

The appellant submitted that Mr Fox’s evidence on recall was not challenged –

That is a note about a concession.  This was partly taken up in the Full Court in the majority decision at page 72, paragraph 33.  It says in the second sentence:

Mr Fox was originally prepared to concede that the incident may have occurred in the manner described by Ms Lyon but then adopted the position that it was for his employer to establish the truth of her assertions.  The change in Mr Fox’s position was attributed to him becoming aware of the absence of witnesses.  This suggestion was never put to him in cross-examination.

Then a matter I will come back to.  The majority then said they were matters for the Full Bench but we just note them.  But we complained to the Full Bench about the treatment of credibility findings generally and, in particular, ours and the way in which the Full Bench dealt with this begins at page 46 of the application book beginning, “FINDINGS ON CREDIBILITY OF WITNESSES” and then it notes what is described as a Fox v Percy error.  Then it deals with Ms Lyon from paragraph [40] all the way over to paragraph [58] and in those two paragraphs in [56] and [57] it addresses the position in relation to her credibility, concluding:

We are satisfied that there was no real or substantial risk to the Commissioner’s capacity to make the requisite assessments.

But that was not all we said.  What the Full Bench then did with our complaint about how our client’s credibility was dealt with was to say, we say wrongly, we do not need to address it because it did not make any difference.  So, with respect, it is not a case of saying they dealt with it albeit inadequately.  What the majority said was, because you completely misunderstood Stead, which says, if you deny the opportunity to address on matter of fact, and you misunderstood the reasoning process in this case, you put aside so much of the complaint as concerned the treatment of Mr Fox’s credibility, in particular, delay, you did not address that, and that was the argument of significance that was not addressed.  That is clear from that last paragraph on page 52, and a part that has not received much emphasis to demonstrate this, is it says:

Given our conclusion that the findings made with respect to Mr Fox’s credit stand alone from those made in respect of Ms Lyon’s credit and given our finding that acceptance of the evidence of Mr Fox without any adverse comment would still have been likely to have resulted in the same finding about a valid reason existing, we are not required to further examine the consequences of the delayed decision upon the evidence of Mr Fox.

Contrast, we have examined delay upon Ms Lyon.  Then additionally:

Nor are we required to make a ruling with respect to the appellant’s application for leave to admit fresh evidence on appeal.

Which in part concerned Mr Fox because they are saying, wrongly, it did not matter.  Because they, with respect, erroneously concluded that Mr Fox’s evidence did not matter, they did not address his complaint and that straddles the line into jurisdictional error.  Mr Dranichnikov came to this Court and said, “I have a complaint about the way my social group case was put in the Refugee Review Tribunal, the Tribunal misunderstood it.  By not addressing that argument, there was jurisdictional error”.

Here my client came and said, “I have a complaint about the credibility findings of myself and Ms Lyon, in particular, vis-à-vis each other.  They dealt with Ms Lyon.  Because they misconstrued the reasons below and they misunderstood Stead, they did not address our complaint about the findings concerning me”.

HEYDON J:   One way of putting it, that you cannot say the credibility of A, I will look at there and then I will turn my attention to the credibility of  B where A and B are in direct collision, it is a reciprocal problem, therefore, the jurisdictional error was really a failure to appreciate that.  They dealt with what they thought as being the whole of the problem by really only dealing with half.

MR BEECH-JONES:   Dealing with half, indeed, and that is what the majority and Justice Buchanan differed on.  Can I deal with the way the majority, Justice Marshall and Justice Tracey, dealt with it.  Beginning at page 69 of the application book, having set out a quote from the judgment in Stead, it says, “The question of Mr Fox’s credibility is an issue of fact” and then noting the adverse things that were found by Commissioner Roberts against my client in the rest of paragraph 27.  Then over the top of the page:

If this was a case where there was a denial of procedural fairness because of the delay in handing down the decision and that procedural fairness required the Commissioner to give reasons for his findings on Mr Fox’s credibility and to address Mr Fox’s evidence on his inability to recall the events, it is by no means clear that the breach of procedural fairness would not have made a difference.

Now, there they take issue with the construction of Commissioner Robert’s reasons, that being a reason not to address his ultimate complaint.  On page 71, paragraph 32, they talk about the relevance of:

The lengthy and unexplained delay between the hearing and the delivery of the Commissioner’s decision raised doubts about the capacity of the Commissioner to recall his observations and impressions of Mr Fox and Ms Lyon when they gave evidence at the hearing.

Then they note in that paragraph one matter that might be considered by a Full Bench if it had addressed the question it was asked to, namely, the credibility findings concerning Mr Fox in view of the delay.  Then in paragraph 33 on page 72, which I referred to earlier, they address another matter that would need to be addressed if Mr Fox’s appeal to the Full Bench had been addressed, namely, his complaint that things had not been properly put to him. Then in paragraph 34 they note, correctly, that they are not matters for them to resolve:

They are mentioned for the purpose of emphasising that there were substantial issues raised on the appeal which should have been, but were not, considered by the Full Bench.

HEYDON J:   So you have two points.  One is this reciprocal credibility point and the other one is failure to deal with Browne v Dunn is a failure to exercise jurisdiction?

MR BEECH-JONES:   Yes.  We get back, we asked why they did not deal with them.  They dealt with them because they erroneously thought you could hermetically seal Mr Fox’s evidence from Ms Lyon and you could not do it.  At page 74 they, in effect, set out why there is jurisdictional error by the Full Bench.  The first sentence:

One of the grounds advanced by Mr Fox was that, because the case turned on findings of credibility, the Commissioner had made an error of law by denying procedural fairness by virtue of his delay in handing down his decision. 

The Full Bench correctly observed that they were jurisdictional matters:

Despite having so directed itself the Full Bench decided that it was “not required to further examine the consequences of the delay decision upon the evidence of Mr Fox”.  This was because, even if the Commissioner had not made prejudicial findings about Mr Fox’s credibility, it “would have still have been likely” that the Commissioner would have made the same finding that a valid reason for termination existed.  In so doing the Full Bench failed to take into account or put to one side one of Mr Fox’s principal grounds of appeal.

and I will interpolate, namely, the complaint about how Commissioner Roberts made adverse credibility findings against him.  That is what was not dealt with and everything else in the majority’s judgment,

in my respectful submission, suggests that they were fully alive to the fact that their task was to find jurisdictional error, in this case a constructive failure to exercise jurisdiction by the Full Bench and not to resolve complaints about delay but to see whether they were dealt with.  The point of departure of Justice Buchanan is apparent at page 110, paragraph 133.  He says:

Although it is clear from the Full Bench judgment that it did not regard it as necessary to examine the question of the effect of any delay upon the assessment of Mr Fox’s evidence, the reason why it was not necessary for it to embark upon that exercise was because, on the view which it formed, it could have no material effect upon the evaluation of the question whether a valid reason existed for the termination of Mr Fox’s employment.

That is the point of distinction, but what we submit is this.  If a body such as the Full Bench wrongly construes the Commissioner’s reasons, that per se is not a jurisdictional error, but if it in the course of doing so thereby puts aside an argument on appeal, that is a constructive failure to exercise jurisdiction.  One has to sit back and say, was my client’s grounds raised on appeal dealt with?  With respect, we submit, there is no dangerous precedent in this case. 

It does not so much turn upon the facts, it turns upon the differing construction as to the Full Bench’s reasons, a construction, we submit, the majority was right, certainly nothing that raises an important point of any kind or has any potentially dangerous consequences for anyone.  It will simply be a case where the evaluation of the case will be, the majority considered that the Full Bench did not address the arguments about the credibility of Mr Fox.  Justice Buchanan considered the Full Bench was right to do so because you could separate his evidence out from Ms Lyon.  For those reasons, your Honour, we would submit that it is not a case for special leave.

HEYDON J:   Thank you, Mr Beech‑Jones.  Yes, Mr Walker.

MR WALKER:   Your Honours, the Commissioner did not believe the account given by Mr Fox about lack of recall.  Your Honours have been pressed with what is described as a Browne v Dunn point on that.  No attention has been paid, however, to what the Commissioner had before him reproduced by Justice Buchanan; application book page 96, paragraph 91, where it is put in plain terms that he did recollect. 

The other point we wish to put in reply is that it was plainly correct, as the Full Bench determined in paragraph [61], application book page 51, that there were no competing versions between Mr Fox and Ms Lyon about

what had happened, in particular what he had said, in the dealing between them recorded on the closed circuit television.  Mr Fox, for reasons which came to attract the unflattering comparison with Bart Simpson, said he could not remember.  It does not matter.  It is plainly not anything jurisdictional in the Full Bench to speculate from personal knowledge or not as to whether it was credible that that was by reason of alcoholic fog. 

There was a decision at first instance about that.  At no stage did Mr Fox put forward evidence by which he claimed to recall what he had said so as to be able to refute what Ms Lyon said he had said.  Indeed, as your Honours will recall, there was the rather odd passage in questioning by the Bench itself, found at application book page 5, paragraph [15], about line 25, with the breaks indicated in the transcript as he worked his way through the answer “I would have to say that that” – that is Ms Lyon’s account – “is pretty good evidence and that I probably would have done it”.  True that arose from the kind of question that counsel does not have the luxury of asking, namely, “If that is what she says, is she a liar”, but nonetheless, that was the man’s evidence.  We do not need to call that in aid.  It only demonstrates that this was not a case where the issue was she said he said that, he said he said something differently.  That was not the case. 

So for those reasons, it is highly significant in weighing up the all important matter of Ms Lyon’s credibility.  Can I trust this witness as to what was said bearing in mind the person about whom it is said has withdrawn from the lists except through challenges by counsel in cross‑examination of her?  Can I accept that?  That was the issue to which delay was truly important and the consequences of which were evaluated by the Full Bench within jurisdiction. 

It is for those reasons, in our submission, that the case is a neat vehicle to decide and determine the perennially important point that we noted in‑chief.  May it please the Court.

HEYDON J:   We will adjourn for a short time to consider the future course.

AT 3.52 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.55 PM:

HEYDON J:   We are of the opinion that there are not sufficient prospects of success in an appeal were special leave to be granted.  Therefore, we dismiss the application – with costs, Mr Walker?

MR WALKER:   Your Honours have had drawn to attention the statutory provision which I hope will not produce argument longer than the substantive application.

MR BEECH-JONES:   I can short‑circuit this by saying, your Honour, we do not seek costs.

HEYDON J:   Very well.  No order as to costs.  Thank you.

AT 3.55 PM THE MATTER WAS CONCLUDED