Flight West Airlines Pty Ltd v Honourable Vice President Ross
[1999] FCA 542
•4 MAY 1999
FEDERAL COURT OF AUSTRALIA
Flight West Airlines Pty Ltd v Honourable Vice President Ross [1999] FCA 542
ADMINISTRATIVE LAW - prerogative writs - certiorari and prohibition - whether jurisdictional error in decision of Full Bench of Industrial Relations Commission - nature of error applicable - error of law in failing to address question posed by appeal from exercise of discretion
APPEAL - nature of appeal from exercise of discretion by Industrial Relations Commission - appeal from decision following consent arbitration - whether appellable error found - observations on evidence on appeal
EVIDENCE - observations on whether fresh evidence admissible on appeal to Full Bench in appeals under s 170ECA Industrial Relations Act 1988
Industrial Relations Act 1988 ss 170DC, 170DE, 170EE, 170ECA, 170EC, 150, 4,143
Civil Aviation Act 1988 s 9, 20A, 29, 30A, 28BA, 98(4A)
Administrative Decisions (Judicial Review) Act 1977 s 13Liddell v Lembke (1994) 127 ALR 342 Refd to
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 Refd to
The King v Hickman; ex parte Foxand Clinton (1945) 70 CLR 598 Cited
Public Service Association (SA) v Federated Clerks’ Union (1991) 173 CLR 132 Refd to
The Queen v Moore; Ex parte Australian Telephone and Phonogram Officers’ Association (1982) 148 CLR 600 Cited
The Construction, Forestry, Mining & Energy Union & Ors v The Full Bench of the Australian Industrial Relations Commission & Ors Full Court Federal Court of Australia, unreported 6 November 1998 Cited
Re Cram & Ors; Ex parte The Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 Cited
Craig v South Australia (1995) 184 CLR 163 Refd to
House v King (1936) 55 CLR 499 Cited
Mallet v Mallet (1984) 156 CLR 605 Refd to
Norbis v Norbis (1986) 161 CLR 513 Refd to
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Cited
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 Cited
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 Refd to
Salerno v National Crime Authority (1997) 75 FCR 133 Refd to
Westend Pallets Pty Ltd v Lally (1996) 69 IR 1 DiscussedFLIGHT WEST AIRLINES PTY LIMITED v THE HONOURABLE VICE PRESIDENT ROSS, THE HONOURABLE DEPUTY PRESIDENT JUSTICE MUNRO, AND COMMISSIONER GAY OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, W J McVINISH and AUSTRALIAN FEDERATION OF AIRLINE PILOTS
QG 142 of 1998
O’CONNOR, KIEFEL AND DOWSETT JJ
BRISBANE
4 MAY 1999
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 142 OF 1998
REMITTED FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
FLIGHT WEST AIRLINES PTY LIMITED
Applicant/ProsecutorAND:
THE HONOURABLE VICE PRESIDENT ROSS, THE HONOURABLE DEPUTY PRESIDENT JUSTICE MUNRO, AND COMMISSIONER GAY OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First RespondentW J McVINISH
Second RespondentAUSTRALIAN FEDERATION OF AIRLINE PILOTS
Third RespondentJUDGE:
O'CONNOR, KIEFEL, DOWSETT JJ
DATE OF ORDER:
4 MAY 1999
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.A writ of certiorari issue to the Australian Industrial Relations Commission and the members of the Full Bench of the Commission constituted for the hearing and determination of appeal C Number 37333 of 1997, directing the removal and quashing of the decision and order of the Full Bench of 8 September 1998.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 142 OF 1998
BETWEEN:
FLIGHT WEST AIRLINES PTY LIMITED
ApplicantAND:
THE HONOURABLE VICE PRESIDENT ROSS, THE HONOURABLE DEPUTY PRESIDENT JUSTICE MUNRO, AND COMMISSIONER GAY OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First RespondentM J McVINISH
Second RespondentAUSTRALIAN FEDERATION OF AIRLINE PILOTS
Third Respondent
JUDGE:
O'CONNOR, KIEFEL, DOWSETT JJ
DATE:
4 MAY 1999
PLACE:
BRISBANE
REASONS FOR JUDGMENT
O’CONNOR J
I concur in the orders proposed by Kiefel J and agree with her Honour’s reasons.
I certify that the preceding numbered paragraph (1) is a true copy of the Reasons for Judgment herein of the Honourable Justice O’Connor . Associate:
Dated: 4 May 1999
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 142 OF 1998
REMITTED FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
FLIGHT WEST AIRLINES PTY LIMITED
Applicant/ProsecutorAND:
THE HONOURABLE VICE PRESIDENT ROSS, THE HONOURABLE DEPUTY PRESIDENT JUSTICE MUNRO, AND COMMISSIONER GAY OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First RespondentW J McVINISH
Second RespondentAUSTRALIAN FEDERATION OF AIRLINE PILOTS
Third Respondent
JUDGE:
O'CONNOR, KIEFEL, DOWSETT JJ
DATE:
4 MAY 1999
PLACE:
BRISBANE
REASONS FOR JUDGMENT
KIEFEL J:
Nature of Proceedings
In these proceedings, which were remitted to this Court from the High Court, Flight West Airlines Pty Limited (“Flight West”) seeks Writs of Prohibition and Certiorari against the Full Bench of the Australian Industrial Relations Commission. On 8 September 1998, the Full Bench set aside the decision of Commissioner Hodder and ordered instead that Captain McVinish be reinstated to a position with Flight West on terms and conditions no less favourable than those referrable to his employment prior to termination, together with other orders concerning his loss of remuneration.
It is necessary to refer in some detail to the history of the attempts made by Flight West to terminate the employment, and the proceedings which culminated in those before the Full Bench.
Background to the proceedings before the Commission
Captain McVinish commenced his employment with Flight West on 3 April 1989. On 26 April 1996, Flight West gave notice terminating that employment. On 4 July 1996, Commissioner Bacon found the termination contravened the provisions of s 170DC and s 170DE(1) and (2) of the Industrial Relations Act 1988 (“IRA”), and that a valid reason did not exist for it or it was harsh, unjust or unreasonable. Reinstatement was ordered, together with counselling. Flight West’s grounds for termination, then under consideration, relied upon reports of Captain McVinish having a poor working relationship with First Officers and upon the circumstances surrounding two previous demotions. The first demotion was connected with Captain McVinish’s manner and his working relationship with others; the second was said to have resulted from conduct said to constitute a serious safety risk combined with disregard for the First Officers’ objections. It was alleged, in the notice calling upon Captain McVinish to show cause why his employment ought not be terminated, that his actions placed the safe operation of the aircraft, and the safety of passengers and crew, in jeopardy. An additional, and substantial, reason adverted to by Commissioner Bacon arose from reports by a First Officer of unsafe landing practices employed by Captain McVinish (the Century Mine incident). This incident only came to Flight West’s attention some days prior to the termination of employment.
It is not necessary to deal further with Commissioner Bacon’s consideration of the matter save for the observation, set out below. The Commissioner concluded that it was not the Commission’s role to decide if Captain McVinish was a competent pilot, as that was a matter for the relevant authority under the Civil Aviation Act 1988 (“CAA”). In particular, those responsible for the supervision of pilots apparently considered Captain McVinish to be competent. In response to the allegation that he posed a risk, the Commissioner said:
“…Certainly no one (arguably including Captain Brown) has taken the necessary steps to initiate proceedings by the Civil Aviation Authority (now Airservices Australia) to have Captain McVinish’s license revoked. Even Flight West has not taken such a step. Flight West submits that Captain McVinish is “a risk of an accident” yet its response to this conclusion is to terminate Captain McVinish’s employment, but not to advise the relevant authorities of its conclusion. It appears that it is Flight West’s view that Captain McVinish is only a risk of serious accident whilst he is flying for Flight West”.
On 8 July 1996 Flight West notified its insurance underwriter of a “change in circumstances material to risk covered by our current policies”, and advised of the dismissal of Captain McVinish, summarising the reasons for it, and of the proceedings in the Commission which, it said, “despite expert testimony” resulted in a direction to reinstate. It further advised that it had not rostered him to fly until further notice and that it was its belief that he should not do so. Since it was however directed to reinstate, advice was sought as to its insurance position. Following discussions, the underwriter advised that cover would not be extended beyond that which it was required by statute to provide with respect to passenger claims, in the event that Captain McVinish flew aircraft.
On 6 September 1996, Flight West again gave notice of termination of employment. As grounds for it, it relied upon the difficulties associated with insurance. On 20 September 1996, however, the Civil Aviation Safety Authority advised Flight West, in writing, that it had considered the evidence before Commissioner Bacon and assessed it as insufficiently strong or credible to justify action against Captain McVinish.
The second application for reinstatement came before Commissioner Hodder. The Commissioner’s decision was the subject of the appeal to the Full Bench, which decision is now called in question. The proceedings brought before Commissioner Hodder were in the nature of a consent arbitration, following the parties election of that course.
Statutory Background
Section 170DE of the Industrial Relations Act 1988, “Harsh, Unjust or Unreasonable Termination”, relevantly in force as at 23 September 1996, provided:
“170DE(1) [Termination must be for valid reasons] An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.
170DE(2) [Termination, harsh, unjust or unreasonable if reasons not valid] A reason is not valid if, having regard to all of the circumstances of the case, including the employee’s capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. This subsection does not limit the cases where a reason may be taken not to be valid.”
In the conciliation process which follows an application for relief from unlawful termination, the parties may undertake arbitration by consent.
Section 170EC(1) provided:
“170EC(1) [Conditions for parties in consent arbitration]
An election under subsection 170EB(2) or (3) by the parties to a conciliation to have the matter to which the conciliation relates dealt with by consent arbitration constitutes an agreement between the parties:
(a) to submit the matter to the process of consent arbitration; and
(b)to comply with any requirement of the Commission for the purpose of that arbitration; and
(c)to comply with any award made by the Commission on that arbitration; and
(d)if that award is taken on appeal to a Full Bench of the Commission -- to comply with the award as confirmed, varied or substituted on that appeal.”
(For later purposes, particular reference will be made to (d)).
At the completion of such an arbitration, the Commissioner could make an award. Subsections 170EC(4) and (6) provided:
“170EC(4) [Commission may make an award] The Commission may, on completion of a consent arbitration, make an award:
(a)that provides for a remedy of the kind able to be granted by the Court under section 170EE; or
(b)that provides that there is no entitlement to any such remedy.
170EC(6)[Award is binding] Subject to any right of appeal to a Full Bench of the Commission under section 170ECA, the award of the Commission is final and binding as between the parties.”
Section 170EE(1) and (2) provided:
“170EE(1) [Orders] In respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, the Court may, if the Court considers it appropriate in all the circumstances of the case, make the following orders:
(a)an order requiring the employer to reinstate the employee by:
(i) reappointing the employee to the position in which the employee was employed immediately before the termination; or
(ii)appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination; and
(b)if the Court makes an order under paragraph (a):
(i)any order that it thinks necessary to maintain the continuity of the employee’s employment; and
(ii)an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination.”
An appeal may be brought to the Full Bench, with leave. Subsection 170ECA provided:
“170ECA(1)[Appeal from award]
If:
(a)the parties to a conciliation elect under subsection 170EB(2) or (3) to have the matter to which the conciliation relates dealt with by consent arbitration; and
(b)there are in force, at the time of the election, regulations prescribing grounds for an appeal to a Full Bench of the Commission from an award of a single member of the Commission in a consent arbitration;
the parties may, with the leave of the Commission, appeal to a Full Bench from such an award on the grounds specified in the regulations as so in force.
170ECA(2) [Confirm, vary or quash award]
On the hearing of an appeal from an award of a single member of the Commission in a consent arbitration, a Full Bench may:
(a)confirm the award; or
(b)vary the award; or
(c)quash the award and substitute a different award.
170ECA(3)[Varied or substituted award]
If the Commission varies an award, or quashes an award and substitutes a different award, the award as varied or the substituted award must be an award of the kind referred to in subsection 170EC(4).”
These provisions and the function of the Full Bench on such an appeal assume some importance in this matter.
The Proceedings before the Commission
The proceedings before Commissioner Hodder included reference to the incidents which had been considered by Commissioner Bacon. Commissioner Hodder declined to go further and review that decision, and identified the issue for his consideration as:
“were the actions of the Respondent in dismissing the Applicant appropriate under the circumstances in deeming the Applicant to be an “unapproved pilot” under all of the circumstances” or, are they of an order which could attract the term “unfair, harsh or unreasonable”.
The reference to Captain McVinish being “unapproved” was a reference to his not being rostered for flying duties after the earlier order for reinstatement. This action, and advice of it, the Commissioner found, resulted in the underwriter declining to extend insurance cover to Captain McVinish in the event that he flew. The matters raised by Flight West in connexion with its decision not to permit Captain McVinish to fly were, the Commissioner noted, unsubstantiated allegations.
The Commissioner then made the following findings (at p 22):
“1There is no impediment to the Applicant flying Company aircraft as I take the view that the actions of the Respondent in deeming the Applicant to be an “unapproved pilot” was designed to avoid the intent of reinstatement ordered by Bacon C. and arbitrary in nature and could be as easily removed as it was applied.
2The Applicant is, or has since his termination with the Respondent, operated an aircraft for a commercial operator, with such operator having insurance cover under the notice of Nelson Hurst, the insurance underwriters to the Respondent, as shown in Exhibit A1 to these proceedings.
3The Applicant is the holder of a current flight crew licence which carries the following details being Exhibit A2 to these proceedings:
…
4The dismissal of the Applicant on the grounds alleged was harsh, unjust and unreasonable and in addition I have formed the view that the Applicant was denied natural justice in the way in which he was dismissed on 30 August 1996.
5The Respondent, in a manner consistent with its rights and responsibilities, raised with CASA a number of alleged incidents allegedly involving the Applicant and quite rightly, in my view, pressed CASA to carry out an invesitgation (sic). The result of this is, to coin a phrase, “the jury is in”, and none of the alleged incidents, and in particular the Mitten Creek incident, have been substantiated by the Safety Authority charged with the responsibility of carrying out the investigation given that in the judgement (sic) of CASA only one incident was deemed necessary to investigate, and, in a step which I view as ensuring accountability, went so far as to refer the results of its investigation to the DPP which, in the end result, found that there were no grounds upon which to proceed against the Applicant.”
The Commissioner, however, did not consider that reinstatement was appropriate:
“However, I have formed the view that it would be inappropriate to reinstate the Applicant to his former employment in view of the circumstances which surround this matter as based upon all of the circumstances it would, in my view, be impractical to have the Applicant resume employment with the Respondent.
The AFAP has expressed concerns about this as an outcome in its submissions as the potential for a commercial airline to shed itself of a pilot or pilots by way of the “unapproved pilot” syndrome would be paramount in its mind, however, I believe that the circumstances which make up this application are not an everyday occurrence and would be rare, however, if this is not the case then obviously the AFAP has rights and the ability to ensure the protection of its members in an industrial sense.
I have considered in arriving at this figure a number of decisions which refer to it being impractical to order reinstatement and in turn the resulting compensation to be awarded, having found that the decision to terminate was a denial of natural justice, and therefore harsh, unjust and unreasonable.”
The Commissioner ordered, instead, the payment of six months compensation.
Captain McVinish appealed to the Full Bench and sought an order for reinstatement. On 7 May 1998, the Full Bench granted leave to appeal and gave directions as to the provision of submissions on the question of the practicability of reinstatement.
The Full Bench upheld the findings of fact made by Commissioner Hodder and in one respect went further, inferring that Flight West had in fact procured the limitation on its insurance policy. In this connexion, it considered that the letter of 8 July 1996 from Flight West to the underwriter to be inaccurate and misleading in its description of the determination of Commissioner Bacon.
The Full Bench considered the principles relating to remedy, to the effect that reinstatement was the primary remedy. It identified what it considered to be an appellable error in Commissioner Hodder’s decision in these terms:
“The circumstances to which the Commissioner refers, and upon which he bases his decision as to the impracticability of reinstatement, are not set out. What is clear is that the Commissioner’s conclusion is in direct conflict with the findings he made on p 22 of his decision.”
The Full Bench’s understanding of the correspondence with the underwriter on this and the later hearing, on the appeal itself, are the subject of submissions for Flight West which I shall deal with later in these reasons. At this point of the proceedings, where the Full Bench was concerned whether to grant leave to appeal, it obviously assumed importance as showing that Flight West had engineered “a circumstance where it would be denied insurance coverage in the event that it restored Captain McVinish to the flying roster”. The Full Bench then went on:
“We are satisfied that the appellant has established that the Commissioner made a reviewable error. We grant leave to appeal.
Consistent with the approach taken in Westend Pallets Pty Ltd we now need to consider whether the award subject to appeal ought to be varied or quashed and substituted by a different award.
We have decided to provide the parties with a further opportunity to make submissions on the practicability of reinstatement on the basis of the principles set out at 8-9 of this decision.
Subject to a party expressing a contrary view we propose to determine the issue of remedy on the basis of written submissions filed pursuant to the directions which are set out below …”
Directions concerning applications for leave to file further material were then provided. At their conclusion appeared a statement by the Full Bench that it did not intend, in connexion with the written submissions, to place any weight upon the underwriter’s advices to Flight West. On this appeal, it was not contended that any issue of procedural fairness later arose by reference to that direction, and that evidence was led.
Before turning to the further evidence received by the Full Bench, it is necessary to refer to the decision of the Full Bench at this point and the basis stated for it.
The procedure earlier referred to by the Full Bench in connexion with the appeal (“the approach taken in Westend Pallets Pty Ltd”), as that which it was following, was summarised as involving three discrete stages: the advancement of an arguable case of legal error, to ground leave to appeal; consideration whether error is established, in the event that leave was granted; and consideration of the question of remedy and whether a different award should be substituted, on the basis of the material available at the time the appeal was heard.
The principles to which the Full Bench had referred, as relevant to reinstatement, concerned the primacy of it as a remedy for unlawful termination and that compensation was to be available only where this was impracticable, referring to Liddell v Lembke (1994) 127 ALR 342 which held that “impracticable” meant something more than inconvenient or difficult, although it did not require impossibility be shown. Reference was also made to Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233, 244, where a reinstatement order was said to be inappropriate, where, for instance, it:
“…is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer’s business, it may be “impracticable” to order reinstatement, notwithstanding that the job remains available.”
Leave to appeal was granted on the basis of the conclusion of impracticability stated by Commissioner Hodder being inconsistent with findings that Captain McVinish could in fact fly aircraft. What had not been provided by the Commissioner was an explanation of what constituted the circumstances rendering it impracticable. The question whether error sufficient to justify the Commissioner’s award being set aside was established, was not further considered by the Full Bench.
The hearing later took place before a differently constituted Full Bench which, however, adopted the view earlier stated, that the question for it was whether the award ought to be varied, or quashed and substituted by a different award. It adopted the reasons earlier given. It then proceeded to identify the points raised in connexion with the appropriateness of reinstatement as a remedy and again adopted as relevant those set out in the Full Bench decision of May 1998.
A fresh issue arose on the material received by the Full Bench. The Chief Pilot of Flight West, Captain Cameron, now entered the picture and gave evidence of his belief that Captain McVinish had a propensity to take risks and undertake dangerous manoeuvres. On this basis, he said he would not now permit Captain McVinish to fly Flight West aircraft. This was the first time that a view held by the Chief Pilot had been relied upon by Flight West. Indeed, it was Flight West’s submission that the Chief Pilot had a statutory responsibility to consider whether Captain McVinish could fly. His view would result in any insurance underwriter refusing cover. Flight West also contended that it had not procured such a decision but had, bona fide, simply put forward its own view.
Flight West’s case centred largely upon the Chief Pilot’s lack of confidence in Captain McVinish as a pilot, and also referred to evidence of “current relationships” as rendering it impracticable to reinstate him. The first point was reiterated upon this hearing and was to the effect that, because of the Chief Pilot’s responsibilities under the Civil Aviation orders, the management of Flight West could do nothing to reverse the Chief Pilot’s decision not to accept Captain McVinish as a pilot on the basis that he considered him to be unsafe. It also sought to explain the position relating to insurance and the more recent enquiries it had made, which resulted in a letter from the underwriter advising, despite the view expressed by the Full Bench on 7 May 1998 that withdrawal or limitation of cover had been engineered, its view as to Flight West’s obligations under the policy and as to the circumstances relating to Captain McVinish being material to its risk had not altered.
The findings of the Full Bench disclose that it was unimpressed with the evidence relating to the availability of insurance and did not accept that Flight West would be unable to procure or maintain appropriate insurance even with full disclosure of the circumstances. The withdrawal of the “Pilot Warranty” which led to the underwriter’s decision, and stood as the main barrier to reinstatement, was said to be based upon the Chief Pilot’s belief that Captain McVinish had a propensity, on occasions, to perform flying duties in an unsafe manner.
The Full Bench had regard to what it considered to be the “complete record”, which is to say the affidavits and transcript of evidence not only before Commissioner Hodder, but also that considered by Commissioner Bacon. It is not apparent that the record relating to the hearing before Commissioner Bacon was utilised by Commissioner Hodder. The consent arbitration undertaken by him appears to have focussed upon events subsequent to the decision of Commissioner Bacon on 4 July 1996. The extent to which each of the parties sought to rely upon that earlier evidence is not clear, although no point was taken about it on the application before this Court.
The focus of the Full Bench was the opinion of the Chief Pilot which, as already observed, underpinned the problems with insurance cover. In accordance with a view previously expressed by a Full Bench, it accepted that it would be unwise to merely substitute its own judgment for the Chief Pilot’s, unless there were special circumstances operating which disclosed, for example, some fundamental error or lack of good faith. In any event, Flight West’s case was based upon the opinion of the Chief Pilot being beyond the Commission’s consideration, and it turned first to consider that proposition.
The Full Bench rejected the argument that the Chief Pilot, in expressing that view, was fulfilling duties associated with some statutory office, and held that his decision was that of an employee acting on behalf of an employer in some supervisory capacity. The Chief Pilot was not, in its view, relevantly distinguishable from the employer. His decision was in reality the exercise of the employer’s discretion. It concluded, therefore, that it was not precluded from making orders concerning the exercise of power with respect to Captain McVinish’s employment, although it acknowledged that it was obliged to take account of the Chief Pilot’s responsibilities. It was however necessary, it considered, to reach a conclusion about the opinions held by the Chief Pilot concerning Captain McVinish “and related problems” concerning the practicability of a reinstatement order.
At this point, the Full Bench observed that it was necessary for it to “pronounce upon the issue as to whether the opinion held and stated by Captain Cameron is soundly and rationally based”. The exercise then undertaken was to review the evidence before it and the findings of Commissioner Bacon. The latter involved allegations concerning Captain McVinish’s conduct on three occasions. The last two were discounted by it as not probative of any propensity on his part to adopt unsafe flying practices. The first of them (the “Mitten Creek incident”) was in a somewhat different category, but there had been no finding made by Commissioner Bacon concerning it. The Full Bench, however, found that the evidence appeared to weigh heavily against a conclusion that it would be “reasonable, soundly based and defensible” to accept that the incident occurred in the way described by the First Officer who made the complaint. It is apparent from the reasons that the matter was considered to be of some seriousness, but it was nevertheless concluded that it was insufficient to warrant the view expressed as to Captain McVinish’s propensity and to prevent him being rostered for future flights. In this connexion, and in the following observations made, it appears that the view taken of Captain Cameron’s evidence as reliable was a significant factor. With respect to this incident he had, the evidence showed, initially been dismissive of the complaint made by the First Officer. The Full Bench went on to observe that:
The strength and impermeability of Captain Cameron’s belief that Captain McVinish has such a propensity appears disproportionate when the surrounding circumstances are brought properly into perspective.”
One of those circumstances related to Captain Cameron’s personal involvement which was regarded as “intense”. He had been “part of” the managerial decision to dismiss; he was involved in the presentation of proof to defend that decision; and he had shared with one other person, the carriage of the proceedings in the Commission on the first occasion. Over time, his position had “hardened and adapted” to the point where it “could accommodate” Flight West’s withdrawal of the insurance warranty for Captain McVinish, and “the emergence of a barrier to reinstatement derived from the Chief Pilot’s unwillingness to roster Captain McVinish”. Flight West’s conduct received unfavourable comment, the Full Bench noting that it had expressed willingness to abide the outcome of the application heard by Commissioner Bacon, but Captain Cameron’s views thereafter did not appear to accord with that approach. Further, after Commissioner Bacon’s decision, Flight West’s conduct had lacked “candour and objectivity” in the disclosure it made of the reasons for that decision. Its conduct overall was then regarded not only as not adding weight to its case, but also as detracting from whatever weight ought to be accorded to the Chief Pilot’s judgment.
The last observation, before stating an outcome on the appeal, related further to the unsatisfactory nature of Captain Cameron’s evidence, contrasting on the one hand his dogmatic opinions and on the other his inability to recall matters relevant to them.
Whilst admitting that the matter was of some difficulty, the Full Bench concluded on balance that reinstatement was not impracticable. It appears from the discussion which preceded that determination, that it took account of the possibility that difficulties might arise with respect to “operational requirements”. It considered however, that Flight West had determined to resist Captain McVinish’s employment in any capacity and expressed its satisfaction that were he to be reinstated, the problems identified by Flight West “in dealing equitably with him could be overcome”.
One aspect of Flight West’s submission to the Full Bench, which it earlier recorded, does not appear to have been expressly dealt with by it. It was to the effect that there was not only no prospect of harmony being re-established between employer and employee, but that there was a serious breakdown in the relationship between Captain McVinish and other employees. The Full Bench, in its conclusion, adverted only to the “formidable task” confronting Captain McVinish and the need for him to co-operate. It was considered however, that he should have that opportunity for otherwise Flight West’s protraction of the original invalid termination of employment would prevail.
Issues on this Application
The principal submission for Flight West was that the Full Bench’s power to order reinstatement was limited to circumstances where it was either appropriate or not impracticable (IRA, ss 170EC(4), 170ECA(1) and (2), 170EE(1) and (2)) and that neither conclusion could be reached when the Chief Pilot had determined that Captain McVinish could not fly aircraft. The jurisdictional error to which it points exists in the Full Bench misdirecting itself as to the position of the Chief Pilot. This question turns largely upon considerations of the CAA and orders made under it. Another aspect of it concerns the prospect that the Full Bench substituted its own view on a matter solely within the Chief Pilot’s experience and expertise. A further basis for the application, referred to in written argument, that it was not open to the Full Bench to order reinstatement on terms and conditions no less favourable than those applying as at 30 August 1996 was not pursued on the hearing of the application. It was further submitted that the Full Bench fell into error in its consideration of the position relating to insurance cover and in particular that it misunderstood the evidence.
Another matter arose during the course of argument and concerned the process undertaken by the Full Bench which heard the application for leave to appeal, which decision was adopted by the Bench hearing the appeal proper. In particular, this requires consideration of the appellate process under the provisions of the IRA set out above, and the identification of the basis for setting aside the decision of Commissioner Hodder, which decision had been reached at the conclusion of the consent arbitration.
A preliminary point, submitted to be fatal to Flight West’s application, was taken by Captain McVinish. It was submitted that, by reason of the provisions of s 150 IRA, the Full Bench’s decision is not now open to challenge.
Section 150(1) IRA
Section 150(1) IRA provided:
“[Awards final] Subject to this Act, an award (including an award made on appeal):
(a) is final and conclusive;
(b)shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus or injunction in any court on any account.”
Similar provisions have been held to operate in their terms so long as the decision in question is a bona fide attempt to exercise the power given, relates to the subject matter of the legislation and does not on its face exceed the power given: The King v Hickman; ex parte Foxand Clinton (1945) 70 CLR 598; 615-617, and subject to an implied qualification that a power to quash remains, where there was no authority to make the order or to entertain it (see Public Service Association (SA) v Federated Clerks’ Union (1991) 173 CLR 132).
Section 150 refers to “awards”. The term “award” was defined in s 4(1):
“award” means:
(a)an award or order that has been reduced to writing under subsection 143(1); or
(b)a certified agreement; or
(c)an enterprise flexibility agreement;
but does not include an award made in a consent arbitration conducted under Subdivision C of Division 3 of Part VIA.”
The proviso was inserted by amendment coming into effect in January 1996. Prior to that, it may have been arguable whether s 150 was meant to extend to awards other than those in settlement of an industrial dispute. The award in question was one made on appeal (s 170ECA(2)) from an award made for compensation (s 170EE(2)) in, or following, a consent arbitration under s 170EC(1). The contention at this point is that the proviso does not refer to a position where, as here, the Full Bench on appeal substitutes its own decision and that the phrase “in a consent arbitration” ought to be read strictly and limited to orders made in the first proceedings, but not on appeal.
An intention to restrict the proviso in this way is not apparent. Further, the argument would seem to require the conclusion that once the appeal process was invoked, the consent arbitration ceased to be just that. The section providing for the process of consent arbitration, s 170EC(1), specifies the contrary. It provides that once an election is made by the parties to undertake the process, they are taken to agree to comply not only with the award made by the Commission “for the purpose of that arbitration” but also to comply with the award of the Full Bench of the Commission “as confirmed, varied or substituted on that appeal”.
It follows, in my view, that the proviso to the definition of “award” excludes the operation of s 150 with respect to the decision of the Full Bench.
Error Invalidating Decision
Whilst the position of the Commission is not directly comparable with that of other quasi-judicial tribunals (The Queen v Moore; Ex parte Australian Telephone and Phonogram Officers’ Association (1982) 148 CLR 600, 613; The Construction, Forestry, Mining & Energy Union & Ors v The Full Bench of the Australian Industrial Relations Commission & Ors Full Court Federal Court of Australia, unreported 6 November 1998, 36), it does not exercise judicial power and is not a Court: The Construction, Forestry, Mining & Energy Union & Ors v The Full Bench of the Australian Industrial Relations Commission & Ors and Re Cram & Ors; Ex parte The Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140, 148-9. Errors which may invalidate the orders or decisions of a tribunal may likewise affect the Full Bench’s decisions. In Craig v South Australia (1995) 184 CLR 163, 179, the High Court identified the nature of such an error:
“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
The class of error is very wide and whilst described as “jurisdictional” would appear to comprehend error of law in the administrative law sense rather than the jurisdictional/non-jurisdictional dichotomy (as to which see Public Service Association v Federated Clerks’ Union, 141).
The Appeal Process
I have reached the conclusion that it was an error in addressing the question posed for it on the appeal, that vitiates the Full Bench’s decision. It is appropriate to refer to my reasons for that conclusion, and then to deal with the other issues raised by Flight West, which I do not consider provide a foundation for the orders sought.
Section 170ECA, set out above, made provision for an appeal from a consent arbitration, with leave. Subsection 1(b) also required, as a precondition to an appeal, that there be grounds of appeal prescribed in the regulations at the time the election to consent to arbitration was made. Regulation 30DAB at that time provided that, for the purposes of subsection 170ECA(1), the ground for an appeal to a Full Bench from an award referred to in that subsection, was that the Commission had been in error in deciding, under subsection 170EC(4), to make the award. The task of the Full Bench was then to assess whether the Commissioner’s decision not to reinstate “in all the circumstances” was in error.
A discretionary decision ought not to be set aside on appeal unless clearly wrong, and in this respect it will not be sufficient that the appeal court disagrees and would itself have preferred a different outcome: House v King (1936) 55 CLR 499, 504, 505. The principle has often been restated: see for example, Mallet v Mallet (1984) 156 CLR 605, 615, 634, 649; and Norbis v Norbis (1986) 161 CLR 513, 518-9. A failure to accord weight to an aspect of the evidence will only amount to error if it is shown that it involves a failure to exercise the discretion given: Mallet, 614. A conclusion of error is, however, open where the result is so unreasonable that it is plainly wrong, in cases where the error itself is not discoverable: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621, 629.
Here, the value judgment arrived at by the Commissioner, following the arbitration process, was that “the circumstances” made reinstatement impracticable and for that reason compensation was the preferable remedy for what was found to be an unlawful termination. He did not, however, identify the circumstances he had in mind, although one of the more obvious possibilities that comes to mind, is that there were considered to be difficulties associated with continuing the working relationship between Flight West’s other staff and Captain McVinish. This problem had formed a ground of complaint on the first application and it had been considered by Commissioner Bacon. It was raised for consideration by the Full Bench in submissions, but was not expressly dealt with.
The IRA did not expressly require the giving of reasons by the Commissioner, for the order made and by way of explanation as to what was meant by his reference to the “circumstances”. Whilst the Commissioner’s decision is not that of a Court, unlike most administrative decisions it is subject to an appeal process. However, neither a judicial nor an administrative decision could be said to require reasons: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 665-7, such that an error of law could be said to arise from a failure to provide them.
In legislation providing for judicial review, failure to give reasons is primarily a matter remedied by orders that they be furnished (s 13 Administrative Decisions (Judicial Review) Act 1977) so that the person whose interests are affected by the decision might then consider whether there was any error in the reasoning of the decision-maker: see Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124, 130. Whilst the failure to provide reasons may not itself suffice as error, it does not, of course, mean that the decision cannot be questioned. Indeed, if none are given that may be an indication that the decision-maker had no good reason: Public Service Board v Osmond, 663-4. More will, however, need to be undertaken.
The Bench which heard the application for special leave (which decision formed the basis for the appeal Bench’s view of the correctness of the Commissioner’s orders) identified an inconsistency between the findings of fact which showed that Captain McVinish was able to fly aircraft and was likely to be insured, and a conclusion of impracticability of reinstatement. To this point, one may discern a lack of agreement on the part of the Full Bench. What its reasoning, with respect, overlooked was that the Commissioner’s decision acknowledged that his continuing as a pilot was possible, but there existed circumstances which made it impracticable. To ascertain error, the Full Bench was required to consider the situation as a whole which would prevail in the event that the employment of Captain McVinish was continued as appeared from the evidence before the Commissioner, and the inferences available with respect to it, and then to determine whether the Commissioner’s view was open. Error would be shown only if it was not. It is difficult to see that such a position could be reached in this matter.
The Full Bench was guided, in the approach it undertook, by cases holding that reinstatement is the primary remedy. Even allowing for the correctness of that view, it would not foreclose the prospect that in some cases it was inappropriate for the reasons referred to in the Act, and the alternative remedy of compensation was appropriate. Without a consideration of all of the circumstances, including those which would pertain at the workplace if reinstatement were ordered, the Full Bench’s decision could not be justified on the basis that the discretion had not in fact been exercised or the result was unreasonable, in accordance with the principles referred to above. In my respectful view, the Full Bench failed to address the question whether error was shown and in those circumstances it could not properly proceed to determine the question of remedy for itself.
The conclusion I have reached is sufficient to oblige the quashing of the decision of the Full Bench and a further hearing according to law. Nevertheless I shall refer shortly to the other issues ventilated on the appeal, subject to the following observation. Dowsett J has expressed the view that the reception of further evidence before the Full Bench was likely to have been circumscribed by the nature of the appeal and I agree. Both issues to which I now turn, that concerning the Chief Pilot and the question of insurance, involved the reception of such evidence.
The Position of the Chief Pilot
It was submitted that the Full Bench misdirected itself as to the special position of the Chief Pilot by limiting his role to one essentially supervisory and necessarily connected with the employer. Flight West submitted that the Chief Pilot’s decision was beyond question. He had operational power, which is to say the ability to determine whether pilots could fly on a particular day and that view was unassailable. It flowed from his independent statutory duty which constituted him a statutory officer. Considerable weight was placed on the latter proposition. It was submitted that the Full Bench had disregarded the statutory regime established under the CAA.
The CAA creates a regime for the regulation and supervision of air safety in Australia. The body responsible for those functions or purposes is the Civil Aviation Safety Authority (“CASA”): s 9. The CAA imposes general prohibitions upon the operation of aircraft in an unsafe or reckless manner (s 20A) and creates general offences with respect to the operation of aircraft, which extend to the owner, operator or pilot (s 29). Conviction may result in exclusion from activities formerly authorised: s 30A. The CAA regulates the operation of aircraft by requiring the certification of air operators, such as Flight West, only where it is satisfied about matters relevant to safety and the operator’s ability to carry them out, and by the conditions of the Air Operators Certificate (Division 2). The General Conditions of the Certificate include compliance with conditions specified in the regulations or the Civil Aviation Orders (“the Orders”) (s 28BA). CASA is authorised, by s 98(4A) to issue the Orders which become conditions of the Certificates, consistent with the purposes of the Act. There is no mention in the CAA of a Chief Pilot. That position is referred to only in the Orders.
Part 82, s 82.1 of the Orders provides, with respect to certificates authorising charter operations, that the operator must establish a position of Chief Pilot and appoint a person to it (pars 2.2, 1.1). Section 82.3 also requires the appointment of a Chief Pilot in connexion with certificates authorising public transport operations. Paragraph 2.2 describes that position, and the other three mentioned, as “supervisory” “within the organisation”. The appointment of a Chief Pilot, when required, becomes a condition of the certificate (Part 82, s 82, par 5.1). That person is required to have certain qualifications and the appointment to the position of Chief Pilot is required to be approved by CASA (S 82, Appendix 1, par 1.1). Paragraph 2 of Appendix 1 details the responsibilities of the Chief Pilot:
2. RESPONSIBILITIES OF CHIEF PILOT
2.1 The Chief Pilot for an operator is to have control of all flight crew training and operational matters affecting the safety of the flying operations of the operator.
2.2 The responsibilities of a Chief Pilot must, unless the Authority otherwise specifies in writing, include the following responsibilities:
(a)ensuring that the operator’s air operations are conducted in compliance with the Act, the Regulations and the Civil Aviation Orders;
(b)arranging flight crew rosters;
(c)maintaining a record of licences, ratings, and route qualifications held by each flight crew member, including:
(i)validity; and
(ii)recency; and
(iii)type endorsements and any applicable licence restrictions;
(d)maintaining a system to record flight crew duty and flight times to ensure compliance with duty and flight time limitations, in accordance with Part 48 of the Orders;
(e)ensuring compliance with loading procedures specified for each aircraft type used by the operator and proper compilation of loading documents, including passenger and cargo manifests;
(f)monitoring operational standards, maintaining training records and supervising the training and checking of flight crew of the operator;
(g)conducting proficiency tests in the execution of emergency procedures and issuing certificates of proficiency as required by section 20.11;
(h)training flight crew in the acceptance and handling of dangerous goods as required by the Regulations or the Orders;
(i)maintaining a complete and up-to-date reference library of operational documents as required by the Authority for the class of operations conducted;
(j)allocating appropriate aircraft.”
It may here be observed that the requirement to ensure compliance with the CAA would extend to taking steps to ensure that aircraft were not operated in a reckless manner. It is also apparent from par 2.1 that, so far as concerns the safety of Flight West’s operations, the Chief Pilot was to have control of all operational matters affecting safety and this would seem to extend to the making of decisions as to which pilots may fly on a given day, at least where the decision was made in the context of safety.
One method employed under the CAA to maintain safety standards is to require the interposition of a supervisory and decision-making role within the operator’s management structure. The obligations then cast upon the Chief Pilot in that role amount to fulfilment of some of the operator’s obligations in connexion with safety. Whilst the CAA, and the Orders made under it, provide in a general way for the responsibilities to be undertaken by the Chief Pilot, each decision made by that person in meeting them is made in the context of management.
Flight West sought to derive statutory force to decisions made by the Chief Pilot in aid of its argument that the Full Bench could not question them. Cases which are concerned with statutory provisions made in a general way for the making of decisions show that the connexion between the enactment here and any such decision is too remote for it to be said to be made under the statute, so as to derive its effect from it: see Salerno v National Crime Authority (1997) 75 FCR 133, 140 and the cases there cited. The CAA does not provide for any consequences which might follow a refusal to follow the Chief Pilot’s decision, nor does it provide for a review of it. I observe that if Flight West’s submissions were correct, it is more likely that a right to review the decision would arise under the Administrative Decisions (Judicial Review) Act 1977. In that event it may be unlikely that the Full Bench would have come to consider the Chief Pilot’s decision not to roster Captain McVinish for flying. Such a position was not however contended for by Flight West. On the view I take of the matter, the decision was not one amenable to review. It did not derive any statutory force from the statute such as might in some way preclude the Full Bench questioning whether there was a real basis for the decision and the opinion which was said to give rise to it.
Given that the Full Bench’s decision-making required it to understand why reinstatement is said by an employer to be impracticable, it must be concluded that it is able to consider the grounds given for the opinions including, here, the Chief Pilot’s views concerning a pilot’s propensities when flying aircraft. Beyond this point, the matter resolves itself at an evidentiary level. That is not to say, of course, that a Chief Pilot’s views about operational and safety issues put forward in a bona fide and objective way would not usually require considerable weight to be given to them and that a body such as the Full Bench would necessarily consider itself constrained by its lack of expertise in the area. This case does not however, involve consideration of technical matters, upon which there would need to be substantial expert evidence to weigh against a Chief Pilot’s evidence of the kind mentioned. Here, the decision of the Chief Pilot was not accepted as reflecting a view honestly held. In my view the Full Bench was not, in these circumstances, in error in disregarding it.
The Position of the Insurer
As discussed earlier, the Full Bench referred unfavourably to Flight West’s conduct in connexion with its communications with the underwriter. It took the view that it lacked “candour and objectivity” in disclosing the reasons which had been given by Commissioner Bacon when first enquiring whether the underwriter would continue to extend full cover in the situation where Captain McVinish was in charge of an aircraft. It was submitted that it misunderstood the evidence and that Flight West had not sent selective parts of the decision, but a complete copy of it.
In the hearing before the Full Bench, it was said on a number of occasions, by counsel for Flight West, that a copy of that decision had been forwarded. It was not said when it was sent. This Court was not taken to any evidence to show that it had been. In any event, had this been so and the Full Bench misunderstood this aspect of the evidence, it is unlikely that such a misunderstanding would have played a real part in the conclusion. The question whether Flight West had sent a full copy of the decision was largely overtaken by the later communications between it and the underwriter following the comments by the Full Bench, when leave to appeal was granted. Even though the underwriter was then further informed and its views again sought, the Full Bench hearing the appeal gave no weight to the response because it was based upon the Chief Pilot’s view, which it found lacked credibility. Flight West had brought about its own limitation on insurance and, inferentially, it was able to reverse it.
This conclusion was open on the evidence before the Full Bench, and no error is disclosed.
Conclusion on Appeal
In my view, the Full Bench failed to consider the question whether error was disclosed in the order made following the consent arbitration. Error in the sense referred to in Craig’s case is thereby shown.
It follows that certiorari should be granted, directed to the Commission and the members of the Full Bench constituted for the hearing and determination of appeal C Number 37333 of 1997, for the removal and quashing of the decision and order of the Full Bench of 8 September 1998. A Full Bench should then proceed to hear and determine the appeal in accordance with law.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate:
Dated: 4 May 1999
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 142 OF 1998
REMITTED FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
FLIGHT WEST AIRLINES PTY LIMITED
Applicant/ProsecutorAND:
THE HONOURABLE VICE PRESIDENT ROSS, THE HONOURABLE DEPUTY PRESIDENT JUSTICE MUNRO, AND COMMISSIONER GAY OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First RespondentW J McVINISH
Second RespondentAUSTRALIAN FEDERATION OF AIRLINE PILOTS
Third Respondent
JUDGES:
O'CONNOR, KIEFEL, DOWSETT JJ
DATE:
4 MAY 1999
PLACE:
BRISBANE
REASONS FOR JUDGMENT
DOWSETT J
I concur in the orders proposed by Kiefel J and agree with her Honour’s reasons. I wish to add only one further comment.
The combined effect of s 170ECA of the Industrial Relations Act 1988 (Cth) and reg 30DAB is to permit an appeal for present purposes upon the ground that the Commission was in error in deciding to make an award pursuant to s 170EC(4). On the hearing of such an appeal, the Full Bench may either confirm the award, vary it, or quash it and substitute a different award. In these proceedings, the Full Bench proceeded on the basis that the parties were at liberty to lead fresh evidence. In Westend Pallets Pty Ltd v Lally (1996) 69 IR 1, the Full Bench approved such an approach, relying upon s 111 of the Act, which confers upon the Commission a general power to take evidence. I have considered the reasons advanced for that conclusion, but am unpersuaded of its correctness. As the matter was not argued before us, it is not appropriate that I state a concluded view. Nonetheless, I will state my preliminary opinion.
Although s 45 of the Act confers a general right of appeal in respect of decisions under various provisions of Pt VI A of the Act, of which ss 170EC and 170ECA form part, the latter section clearly confers a separate right of appeal. There is an obvious intention to exclude the appeal provisions of s 45 where s 170ECA applies. Pursuant to par 45(6)(a), the Full Bench may receive further evidence, but there is no such provision in connection with appeals pursuant to s 170ECA. Further, the express conferment upon the Full Bench of power to take evidence when hearing an appeal pursuant to s 45 suggests that s 111 was not intended to confer such a power. The power to hear and determine an appeal does not, of itself, confer a right to receive further evidence. Prima facie, such an appeal must be determined upon the material which was before the tribunal making the decision in question. As much appears from the decision of the High Court in Mickelberg v The Queen (1988-1989) 167 CLR 259, per Mason CJ at 266, Brennan J at 274 and Toohey and Gaudron JJ at 298.
The decision of the High Court (Deane, Gaudron and McHugh JJ) in Re Coldham; Ex parte Brideson(No 2) (1990) 170 CLR 267 is also of interest. At p 273, the Court said:-
“In Horne [[1978] 2 NSWLR 88], Sheppard J held that, when an employee appealed to an appeals board, set up under the Government Railways Act 1912 (NSW) against a decision of his employer refusing to promote him, the appeal had to be determined on the facts that existed at the time of the employer’s decision. His Honour reached this conclusion notwithstanding that the board was ‘intended to hear evidence from witnesses’. In Strange-Muir [(1986) 5 NSWLR 234], the Court of Appeal of New South Wales held that, on an appeal to the Government and Related Employees Appeal Tribunal, whether an appellant employee was ‘more entitled to be appointed to the vacant office than the employee in whose favour the decision is made’ had to be determined on the evidence that existed at the date of the employer’s decision. In his reasons for judgment in that case, McHugh JA said that it should be taken as established that ‘there is a presumptive rule that in an administrative appeal to an administrative body the issue is whether the decision was correct when it was made’. His Honour considered that in this respect an appeal to an administrative tribunal against an administrative act was to be contrasted with an appeal to a court against an administrative act. Be that as it may, it is well settled that, when the legislature gives a court the power to review or hear an ‘appeal’ against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings … . Nevertheless, whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right … .”
I presently see no basis upon which a Full Bench may receive further evidence in an appeal pursuant to s 170ECA. It is clear that the Parliament intended to confer a limited right of appeal in respect of awards pursuant to s 170EC. Given that such awards occur in the context of consent arbitrations, it is not difficult to understand the logic behind that decision.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 4 May 1999
Counsel for the Applicant: Mr R Buchanan QC and Mr A Herbert Solicitor for the Applicant: Freehill Hollingdale & Page Counsel for the Respondent: Mr H Borenstein Solicitor for the Respondent: Mahonys Date of Hearing: 22, 23 February 1999 Date of Judgment: 4 May 1999
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