David Lumsden v Ringthane Pty Ltd T/A Tradewinds Hotel
[2021] FWCFB 4443
•23 JULY 2021
| [2021] FWCFB 4443 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
David Lumsden
v
Ringthane Pty Ltd T/A Tradewinds Hotel
(C2021/3057)
VICE PRESIDENT CATANZARITI | SYDNEY, 23 JULY 2021 |
Appeal against decision [2021] FWC 816 of Deputy President Binet at Perth on 10 May 2021 in matter number U2020/13992 - permission to appeal refused.
[1] Mr David Lumsden (Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (FW Act), for which permission is required, against a decision 1 of Deputy President Binet made on 10 May 2021 (the Decision). The Appellant says that he was denied procedural fairness in the process of the matter being heard and determined.
[2] Prior to the hearing of the appeal, the Appellant requested that the appeal be determined on the basis of written submissions without the need for a formal hearing. The Respondent consented to this request. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.
[3] For the reasons that follow, we refuse permission to appeal.
BACKGROUND
[4] The Appellant made an application to the Commission on 22 October 2020 alleging that he had been unfairly dismissed from his employment with Ringthane Pty Ltd T/A Tradewinds Hotel (Respondent). Following conciliation directions were issued by the Deputy President to the parties that required each to file with the Commission and serve on the other party relevant submissions and evidence.
[5] The directions stated that, in addition to submissions, a ‘signed and dated’ witness statement should be filed. As to the merits of the application the Appellant was required to file his material, including witness statements, in the Commission and on the Respondent by 24 December 2020. The Respondent was required to file its submissions and witness statements in the Commission and serve these on the Appellant by 7 January 2021.
[6] The parties were directed to file an agreed statement of facts by 4pm Thursday 14 January 2021.
[7] As is relevant to the appeal the parties were also directed to
‘jointly prepare and file in the FWC a digital court book merging both parties submissions, witness statements and documents to be tendered as exhibits into a single pdf with continuous numbering. This document must be filed no later than, 4pm Thursday 14 January 2021. Parties please note that materials not incorporated in the digital court book will NOT be admitted at the Hearing.’
[8] Relevant information on preparing for a hearing, writing witness statements and the like was also provided to parties with the directions. Submissions as to representation and objections were also required to be filed.
[9] The Appellant filed his submissions and witness statements in the Commission and served these on the Respondent in accordance with the directions on 24 December 2021.
[10] On 7 January 2021 the Respondent’s representative (Mr Ron Jones) filed its submissions and witness statements of three witnesses. On 8 January 2021 the Respondent’s representative served these documents on the Appellant.
[11] On 14 January 2021 Mr Jones filed with the Commission and provided to the Appellant the digital court book as required in the directions of the Deputy President. The digital court book included the agreed facts statement and a statement of ‘matters not agreed’. That digital court book contained all of the material as filed by the Appellant and Respondent and a further (fourth) witness statement for the Respondent of Mr Brett Braithwaite.
[12] On 16 February 2021 the chambers of Deputy President Binet issued an amended digital court book. On 18 February the Appellant sent two emails to the Deputy President’s chambers in which he said that Mr Braithwaite’s statement had been sent to him only two days earlier [presumably in the amended digital court book] and not by the deadline in the directions. He said that the Deputy President had told him that for a witness statement to be admissible it would need to be served by the deadline and that any witness statement would need to be signed and dated and that a failure to meet such a requirement would require “permission from the other side in order to attain admissibility”. The Appellant also said that he had received the evidence of the Respondent a day late [on 8 January 2021]. The Appellant said that Mr Braithwaite’s statement in the amended digital court book was not signed and dated and it is “remarkable and ridiculous that the FWC included it in the Court Book in the first place”. The Appellant said “I totally reject it as admissible evidence” and urged the FWC to not include Mr Braithwaite’s witness statement as admissible evidence.
[13] On 19 February 2021 the Appellant sent a further email to the Deputy President’s chambers and suggested that, because the witness statement of Mr Braithwaite was not signed and dated, the Respondent had no eye-witness account of his alleged conduct. He therefore urged the Commission to determine the matter on the papers without a hearing.
[14] The Deputy President’s chambers emailed the parties that day and noted that Mr Braithwaite’s statement was not signed and dated as required by the directions issued. That email also indicated that the Appellant had not objected to the digital court book filed by Mr Jones in accordance with the directions. The correspondence required the Respondent, if it intended to rely on the statement of Mr Braithwaite, to seek leave to file the statement late, provide reasons for non-compliance with the directions issued and ensure a signed and dated copy of Mr Braithwaite’s statement be filed with the Commission and served on the Appellant by 4:00pm Monday 22 February 2021.
[15] In response the Appellant replied that he did not check the version of the digital court book provided by Mr Jones.
[16] On Monday 22 February 2021 at 4:42pm the Respondent filed submissions in which it sought leave to file the witness statement of Mr Braithwaite. The submission indicated that the failure to file the witness statement was an “administrative oversight” and that, due to the volume of material being filed, it failed to check that all documents were filed. The Respondent sought leave to file the statement of Mr Braithwaite “as attached.” The Respondent’s submissions also indicated that the application to file the statement late “does not cause harm to the [Appellant] because the witness statement was included in the digital court book of 14 January 2021.”
[17] The Appellant responded to the submission of the Respondent on 20 February 2021 and noted that the statement was not signed or dated. He also indicated that he would be harmed by the admission of the late statement.
[18] On Tuesday 23 February 2021 the Deputy President’s chambers again contacted Mr Jones for the Respondent and indicated that the document attached to the Respondent submissions of the day before was not signed and that, if not signed, it would not be admissible at hearing. Mr Jones was advised he needed to provide a signed statement of Mr Braithwaite by 4:00pm that day.
[19] At 1:06pm on 23 February 2021 the Respondent filed with the Commission and served on the Appellant the signed statement of Mr Braithwaite. A final version of the amended digital court book, containing the signed statement, was sent to the parties at 1:36pm. At 2:44pm the Appellant sent a further email to the Deputy President’s chambers in which he noted that the Respondent had failed to file and serve the signed and dated copy of Mr Braithwaite’s statement by 4:00pm the day before, as required by the Deputy President’s direction. The Appellant said:
“Having this evidence introduced to proceedings on the day before a hearing is manifestly unjust. The Deputy President was very clear to me in what rules would need to be observed to submit admissible evidence. Tradewinds have routinely failed to observe these rules, and the Deputy President has made genuine efforts to accommodate them. Each time Tradewinds have failed to observe the rules enforced on me, the Deputy President has offered them another opportunity for them to strengthen their case as best they can, so as to help her find in their favour. I would not have received this help.
Would the Deputy President like to provide reasons for her grossly prejudiced management of this case? Would she like to recuse herself and allow a less partial member of the Commission handle proceedings?
At least be ashamed.”
[20] In reply the Deputy President indicated that if the Appellant wished to make an application that she recuse herself he should do so at the commencement of hearing the next day.
[21] A review of the recording of the hearing indicates that, at the commencement of proceedings on 24 February 2021, the Appellant made an application that the Deputy President recuse herself on the grounds of bias. The Appellant stated that this bias was demonstrated through the admission of “crucial evidence” less than 24 hours prior to the hearing leaving him with less than 24 hours to prepare for the hearing. The evidence to which he referred was the signed and dated witness statement of Mr Braithwaite.
[22] The Deputy President explained to the Appellant that the admissibility of material was determined on the basis of its relevance to proceedings. Whether a witness statement was signed or otherwise, along with the availability of a witness to be cross examined, went to a question of how much weight she might accord to that evidence.
[23] The Deputy President indicated that, on the Commission’s records, the witness statement of Mr Braithwaite was first filed in an unsigned and undated form in the digital court book filed by the parties on 14 January 2021. It was then recirculated in the amended court book by chambers on 16 February 2021 (unsigned and updated) and then the signed version was circulated on 23 February 2021. The content of the statement had not changed but by 23 February 2021 it was signed. The Deputy President also indicated that the witness would be available that day for cross examination by the Appellant.
[24] The Deputy President acknowledged that the statement of Mr Braithwaite had not been filed in accordance with the directions issued but noted it was not uncommon for material to be filed outside the directions for a range of reasons.
[25] The Appellant said that admitting the statement was counter to the email sent to the parties the day before. The Deputy President stated that she could have chosen not to admit the statement but that it had now been signed and dated and, as far as she could tell, was in identical terms to the unsigned statement filed in January and re-circulated in February 2021. She therefore determined to admit it.
[26] The Appellant submitted that, given he had been told the statement would be inadmissible if unsigned and undated, it was unreasonable to assume that he would prepare on the basis of inadmissible evidence. The Appellant said that he had worked on the assumption – confirmed by the email of the previous day – that the material would be inadmissible.
[27] Mr Jones for the Respondent acknowledged that the witness statement of Mr Braithwaite was filed late due to an administrative oversight. He said however that the parties, in accordance with directions, had filed an electronic court book on 14 January 2021 and that if Mr Lumsden considered the statement of Mr Braithwaite should not have been included he should have advised the Commission at that stage, but he did not.
[28] The Deputy President observed that Mr Braithwaite’s witness statement was a page and a half long. She determined to adjourn for an hour to allow the Appellant time to prepare his cross examination of Mr Braithwaite. The Deputy President noted that she was obliged under the FW Act to deal with matters expeditiously, that the Appellant had had the statement of Mr Braithwaite since 14 January 2021, that he had not raised the issue of his ability to prepare for dealing with the statement of Mr Braithwaite until the hearing itself, that the evidence of Mr Braithwaite was relevant and key to the facts in dispute and that the Appellant could give his version of events in circumstances where Mr Braithwaite’s evidence was in relation to an incident between him and the Appellant. In these circumstances she considered an hour sufficient for the Appellant to prepare for cross examination of Mr Braithwaite.
[29] The Appellant further submitted that the Respondent had not sought leave to admit the late signed statement of Mr Braithwaite. The Deputy President advised that leave had been sought and granted.
[30] On resumption the Deputy President asked the Appellant if he had an opportunity to review Mr Braithwaite’s statement. The Appellant replied “yes I have”.
[31] In concluding proceedings following the receipt of evidence the Deputy President advised the Appellant that his application that she recuse herself was dismissed. She advised that the adjournment had provided the Appellant with an opportunity to prepare for cross examination of Mr Braithwaite and the Appellant could rely on his own recollections in relation to responding to Mr Braithwaite’s evidence. For these reasons she said the grounds for recusal had not been made out.
[32] It is this decision to admit the evidence of Mr Braithwaite to which the Appellant directs his appeal.
GROUNDS OF APPEAL
[33] The grounds of appeal put forward by the Appellant are:
“In determining the matter, the Deputy President considered a witness statement that had been admitted as evidence less than 24 hours before the hearing, leaving me very little time to prepare a response to that evidence. Conversely, the Deputy President allowed the respondent until the day before the hearing to submit evidence despite the respondent’s repeated non-compliance with directions on deadlines for submissions. I contend that the respondent provided an inadequate reason for his late filing and his failure to serve this witness statement on me. I also submit that principles of equity should not have been applied in deciding to admit this late evidence as the respondent is represented and not in need of guidance or assistance in complying with directions, whereas I am unrepresented and interpreted the Deputy President’s directions literally.
I think it is important also to consider that in email correspondence with both parties on the day prior to the hearing, the Deputy President confirmed her position that the witness statement in question was inadmissible until that day.
I request that the matter be determined without consideration for the witness statement entered into evidence the day before the hearing.” 2
[34] From this we understand the substantive ground of appeal to be that the Deputy President impermissibly admitted evidence (in the form of the signed witness statement of Mr Braithwaite) not filed in accordance with the directions of the Commission in circumstances where no adequate reason was given for the late filing of the statement and in circumstances where this created an injustice to the Appellant.
[35] As to why permission should be granted the Appellant said in his appeal application:
“I believe strongly that the FWC conducted proceedings unconscionably in setting clear direction to both parties that were almost totally perverted for the ultimate benefit of one party (a well-represented and relatively powerful party), over the other (a self-represented party in consistent compliance with the FWC’s directions).
Both parties to a matter should be given equal opportunity to consider the evidence presented by each other without the FWC encouraging ambush tactics, as were deployed in these proceedings.”
SUBMISSIONS
[36] In support of his appeal the Appellant submits that the correspondence of the Commission of 23 February 2021 (in which the parties were advised that “If the statement is not signed, it is inadmissible at Hearing”) should be interpreted literally. On this basis the Appellant submits he had less than a day during which the statement was “admissible” and therefore consider the defence of the Respondent to his application. The Appellant says that the Deputy President was correct when she said that an unsigned statement is inadmissible at hearing and was incorrect to change her position at the hearing.
[37] The Appellant submits that it should not have been up to him to object to the unsigned statement being included in the digital court book filed in accordance with the directions of the Commission. Rather he submits that the responsibility should be on the Respondent to file and serve its materials in accordance with the directions and on the Commission to detect non-compliance.
[38] The Appellant acknowledges in his submissions that the Commission is not bound by the rules of evidence but he says that the freedom that comes with this to admit fresh evidence is not “without constraint.” 3 Whilst recognising the discretion in the Commission, the Appellant submits that in this case the discretion was used in a “perversely inequitable manner.”
[39] The Appellant submits that the reason given for non-compliance by the Respondent with the directions of the Commission was meaningless. The Appellant submits that the advantage to the Respondent by the admission of the statement of Mr Braithwaite and the prejudice to him should have required some justifiable reason from the Respondent and that the Deputy President erred in not requiring the Respondent to justify its failure to file the signed statement of Mr Braithwaite in accordance with the directions.
[40] The Appellant submits that it is in the public interest to allow his appeal to be heard as the non-applicability of the rules of evidence was inequitable, prejudicial and thoughtless. He submits that the Deputy President actively encouraged a situation where he was prejudiced and the Respondent favoured. He submits that the FW Act requires the Commission to exercise its powers and perform its functions in a manner which is just and that, in performing its functions, it must take into account equity, good conscience and the merits of the matter.
[41] The Appellant submits that it is in the public interest that the Commission be “constrained from using the discretion afforded to it by the inapplicability of the rules of evidence in a manner that breaches these mandatory guidelines” as he says occurred in the handling of his case.
[42] The Respondent says that the Appellant was aware from January 2021 of the witness statement of Mr Braithwaite 4 indicating that he had sufficient opportunity to address the issues raised. This is to be contrasted with the Appellant’s claim in an email to the Deputy President’s chambers on 18 February 2021 that he had seen the statement for the first time on 16 February 2021 (when the amended digital court book was sent to him).
[43] The Respondent submits that public interest is not enlivened in this matter. The Deputy President exercised powers available to her appropriately. Further, it says that there was no decision or ruling of the Deputy President that caused any advantage to the Respondent.
PRINICPLES ON APPEAL
[44] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
[45] The public interest test in s 400(1) is not satisfied simply by the identification of error or a preference for a different result.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 6
[46] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.7 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[47] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 9 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
CONSIDERATION
[48] Sections 589 and 590 of the FW Act provide the Commission with a broad discretion as to how to deal with a matter and how to inform itself about a matter.
[49] The Commission is not bound by the rules of evidence. Section 591 of the FW Act states:
591 FWC not bound by rules of evidence and procedure
The FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter).
[50] It is true as well that, whilst not bound by the rules of evidence, those rules provide guidance as to the manner in which the Commission may inform itself and the Commission is obliged ‘to respect and apply traditional notions of fairness’ but should also ‘proceed without unnecessary technicality and as informally as the circumstances of the case permit’. 10 The rules of evidence cannot be ignored to the extent that it would cause unfairness between the parties.11
[51] The Appellant in this case does not seek to appeal the Deputy President’s decision not to recuse herself. Rather, he seeks to appeal the procedural decision of the Deputy President made during the hearing to admit into evidence a statement signed by Mr Braithwaite the day prior to the hearing.
[52] In circumstances where the Appellant, on his own admission, had access to the witness statement of Mr Braithwaite by at least 21 January 2021 when he filed his submissions in relation to the s.587 application to dismiss, and where the signed version of that statement did not vary from the unsigned version, we do not consider its admission into evidence by the Deputy President manifests any injustice or unfairness to the Appellant just because that statement was not signed until the day before the hearing.
[53] The Appellant, we think, has confused the filing of materials with the formal process of admitting that material into evidence. There are undoubtedly matters that will stop a witness statement being admitted in the proceedings before a Member – for example if the person who made the statement is not available for cross examination or the statement does not go to matters to be decided. A statement which is hearsay might be inadmissible in a strict “rules of evidence” sense although may be admitted but given limited weight by the Member in proceedings in the Commission. However, none of these circumstances will limit the filing of that statement at first instance.
[54] Whilst the witness statement of Mr Braithwaite was not initially filed in accordance with directions (it was filed late and not signed or dated) the process of admitting that witness statement into evidence occurs during the hearing of the matter. In this case, at the time it was sought to admit the witness statement, the Deputy President decided it should be admitted. To ensure procedural fairness she provided the Appellant with additional time to review the statement prior to cross examination of Mr Braithwaite. We would observe that, even if the Appellant had been successful and the witness statement not admitted, that would not have stopped the Deputy President requiring Mr Braithwaite to enter the witness box and be sworn in to give his evidence orally. Mr Braithwaite’s evidence was crucial in the case – it was the confrontation between Mr Braithwaite and the Appellant that led to the decision to dismiss the Appellant. There was no one else present at the time of the incident. Alternatively (time allowing) the matter could have been held over and heard at a later date. In either event it is difficult to see a different outcome from that reached by the Deputy President in the Decision (which is not appealed) in respect of the merits of the Appellant’s application for an unfair dismissal remedy.
[55] That the Deputy President found in her decision that she preferred the evidence of Mr Braithwaite to that of the Appellant is not evidence of error on her part in admitting the Braithwaite statement. The decision made by the Deputy President was a procedural decision made in the course of a hearing. It is of the type of decision made on a regular basis by members of the Commission. In this case the Deputy President took all reasonable steps to ensure the Appellant had an opportunity to prepare himself to cross examine Mr Braithwaite.
[56] The Appellant has failed to identify any public interest grounds upon which permission to appeal should be granted. We are not satisfied that:
(a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) The appeal raises issues of importance and/or general application;
(c) The decision at first instance manifests an injustice, or the result is counter intuitive or
(d) The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[57] For the above reasons, we are not satisfied, for the purpose of s 400(1) of the Act, that it would be in the public interest to grant permission to appeal.
[58] Permission to appeal is refused.
VICE PRESIDENT
Hearing details:
By consent, on the papers.
Final written submissions:
Respondent’s written submissions dated 28 June 2021.
Printed by authority of the Commonwealth Government Printer
<PR732076>
1 [2021] FWC 816
2 Appellant notice of appeal
3 See R v War Pensions Entitlement Tribunal; ex parte Bott (1933) CLR 228
4 Appeal Book p.41 – Appellant submissions in response to dismissal application dated 21 January 2021, paragraph 12
5 O’Sullivan v Farrer [1989], HCA 61, (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, (2011) 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCAFC 54, (2011) 192 FCR 78, (2011) 207 IR 177 at [44]-[46].
6 [2010] FWAFB 5343, (2010) 197 IR 266 at [27].
7 Wan v Australian Industrial Relations Commission and Another [2001] FCA 1803, (2001) 116 FCR 481 at [30].
8 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCAFC 54, (2011) 192 FCR 78, (2011) 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, (2014) 241 IR 177 at [28].
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
10 Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [25] (per Buchanan J)
11 Re: Construction, Forestry, Mining and Energy Union PR935310
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