Giancaspro v SHRM (Australia) Pty Ltd - [2005] SASC 340

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
GIANCASPRO v SHRM (AUSTRALIA) PTY LTD
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
8 September 2005
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - POWER TO CONTROL PROCEEDINGS
Application from lay advocate seeking leave to appear for the appellant - Factors relevant to exercise of court's discretion to permit or refuse leave to a lay advocate to appear for an unrepresented litigant - Power of court to regulate proceedings - Leave refused - Lay advocate allowed to assist unrepresented appellant in the presentation of appeal.
Legal Practitioners Act 1981 (SA) s 21, s 51; Supreme Court Rules r 32, r 33, referred to.
Damjanovic v Maley (2002) 195 ALR 256; O'Toole v Scott [1965] AC 939, applied.
Galladin Pty Ltd v Aimworth Pty Ltd (1993) 60 SASR 145, distinguished.

PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - OTHER MATTERS
PROCEDURAL FAIRNESS
Appeal against decision of Full Court of the Industrial Relations Court - Claim against employer for unpaid annual leave entitlements and locality allowance - Magistrate did not determine principal factual issue of whether appellant had resigned from employment in 1990 - Magistrate's decision based on a different issue not raised by appellant and no submissions heard - Point not raised on appeal to single Judge - Single Judge made further findings upon which parties had no opportunity to lead evidence - Full Court made further finding on an issue not previously argued at trial or on appeal - Appellant represented by lay advocate at all stages - Whether Magistrate and appeal courts failed to afford procedural fairness to appellant - Findings based on factual issues on which no evidence led - Denial of procedural fairness at every level in Industrial Relations Court - Whether failure properly to consider ability to extend period of limitation - Consideration of issues relevant to frustration of contract of employment - Decision of the Full Court of the Industrial Relations Court set aside and matter remitted to that court for further consideration - Appeal allowed.
Industrial and Employee Relations Act 1994 s 154, s 167 (now Fair Work Act 1994); Workers Rehabilitation and Compensation Act 1986 s 58b(3) (now s 58C); Long Service Leave Act 1987 s 6(1), s 6(2); Limitation of Actions Act 1936 s 167(1), referred to.
Finch v Sayers [1976] 2 NSWLR 540, discussed.
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435; Consolidated Press Ltd v Thompson (1952) 52 SR (NSW) 75; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Kohn v Apcel Pty Ltd (1989) 56 SAIR 45; Cachia v State Authorities Superannuation Board (1993) 47 IR 254; Craig v Workers Compensation Tribunal (2004) 90 SASR 490; Jones v National Coal Board [1957] 2 QB 55; Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981-1982) 149 CLR 337; Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696; R v Prince Alfred College (1979) 46 SAIR 771, considered.

GIANCASPRO v SHRM (AUSTRALIA) PTY LTD
[2005] SASC 340
Full Court: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: I would allow the appeal. I would set aside the order of the Full Court of the Industrial Relations Court dismissing the appeal to that Court. I would order that the matter be remitted to the Full Court for further consideration of the appeal to that Court.
I agree with the reasons given by Bleby J. There is nothing that I wish to add to those reasons.
I would order that there be no order as to the costs of the appeal.
BLEBY J:
Introduction
This is an appeal from a decision of the Full Court of the Industrial Relations Court pursuant to s 191 of the Industrial and Employee Relations Act 1994, now entitled the Fair Work Act 1994 (“the Act”). The original proceedings were commenced under s 14 of the Act. They were commenced on 13 January 2003. In them, the appellant claimed payment for annual leave, annual leave loading, locality allowance on unpaid annual leave and long service leave.
As amended, the claim for annual leave entitlements and locality allowance was for a closed period between 1987 and 1990. The long service leave was based on a claim of continuous service from 1987 to 2002, and the annual leave loading was claimed for the period 1987 to 2002.
Section 179 of the Act provides that a monetary claim of this type must be made within six years after the sum claimed became payable. It is clear that, in order to succeed on the bulk of his claim, the appellant needed to obtain an extension of time within which to bring the proceedings.
The appellant’s claim was dismissed by an Industrial Magistrate. His appeal to a single Judge and a further appeal to the Full Court of the Industrial Relations Court were both dismissed. It will be necessary to return to those decisions to understand why the claim and subsequent appeals were dismissed.
A question of representation
At all levels in the Industrial Relations Court the appellant was represented by a lay advocate who was not legally qualified, presumably as a person who provided the representation gratuitously. Such representation is allowed by s 151 of the Act.
The same lay advocate sought leave to appear for the appellant on the hearing of the appeal before this Court. At a hearing to resolve that question before the appeal proper was heard, we refused leave to the lay advocate to appear for the appellant. The Court indicated, however, that if the appellant wished, he could provide a written outline of the appellant’s argument prepared by the lay advocate, and that we would allow the lay advocate to assist the appellant, if he wished, on the hearing of the appeal.
The application for leave to be represented by the lay advocate was renewed on the hearing on the appeal and the Court confirmed its previous decision. It received the written outline of argument prepared for the appellant by the lay advocate and allowed the lay advocate to assist the appellant in the presentation of his appeal.
I state my reasons, briefly, for refusing the application. The principal reasons put forward were that the appellant distrusts lawyers, having had what he claims to have been a bad experience of legal representation, that the lay advocate was his friend whom he did trust, who had helped him through the litigation to this point and who was familiar with his case. It became clear that the lay advocate was more articulate than the appellant, but not necessarily better versed in the law and legal representation.
On the assumption that the lay advocate is not acting for fee or reward, there is nothing in either s 21 or s 51 of the Legal Practitioners Act 1981 which would prevent the Court from exercising its inherent right in regulating its own proceedings to allow a non-lawyer to conduct a case on behalf of a party. That has been decided in this Court by Perry J in Galladin Pty Ltd v Aimnorth Pty Ltd[1]. It has also been recognised as the position at common law by the New South Wales Court of Appeal in Damjanovic v Maley[2]. However, it is a discretionary power which must be exercised specially in a particular case and not by way of general practice, and it is properly exercisable only when its exercise is necessary for the administration of justice, and not when it is merely desirable for convenience, expedition and efficiency.[3]
[1] (1993) 60 SASR 145.
[2] (2002) 195 ALR 256 at [33].
[3] O’Toole v Scott [1965] AC 939 at 958.
In Damjanovic v Maley[4] Stein JA, with whom Mason P and Sheller JA agreed, examined a number of cases where the issue had been discussed from which he extracted a number of factors relevant to the exercise of the discretion to allow non-legal representation. First was the complexity of the case, non-legal representation being less likely to be allowed in a case of some complexity.
[4] (2002) 195 ALR 256.
Second, were genuine difficulties of the unrepresented party, such as unexpected language difficulties and emergencies.
The third relevant factor was the unavailability of disciplinary measures and a duty to the Court by lay advocates. This is a matter of some significance mentioned in most of the cases. As Stein JA pointed out[5] the Court is entitled to place reliance on the duty of a legal practitioner to act with candour towards the Court and not knowingly to mislead the Court, on pain of disciplinary measures being taken against him or her. That is not the position of a lay advocate. Stein JA further observed:[6] “[W]ith unqualified and uninsured lay advocates the court loses the benefit of the overriding duty and clients are at a distinct disadvantage”.
[5] Ibid at [76].
[6] Ibid at [77].
Fourth was the protection of the client and the opponent, clients being placed at a considerable risk at the hands of unqualified, unaccredited and uninsured lay advocates.
In the fifth place, the Court pointed out that inferior courts and tribunals, with large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons, usually because the matters are less complex, but that higher Courts would be less likely to grant leave.
Finally, as recognised in O’Toole v Scott[7], the guiding principle in the exercise of the discretion is “the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers”.[8] Stein JA quoted with approval an observation of the present Chief Justice of the High Court[9]:
The adversary system assumes, in the interests of both justice and efficiency, that cases will be presented to Courts by skilled professionals. To the extent to which that assumption breaks down, so does the system.
[7] [1965] AC 939.
[8] (2002) 195 ALR 939 at [83].
[9] Gleeson CJ, Speech to the Supreme Court of Japan, January, 2000 (Current Issues for the Australian Judiciary).
None of the factors which I have mentioned would favour the granting of leave in this case. As will be seen, the matter is one of some legal complexity, and many of the problems which have arisen on the way might well have been avoided if the applicant had had competent legal representation.
Some reliance was placed on the fact that Perry J had allowed non-legal representation in this Court in Galladin Pty Ltd v Aimnorth Pty Ltd.[10] However, the circumstances in that case were very different and somewhat unusual. The person seeking to represent three of the parties was himself a party to the litigation and was acting for himself. He was entitled to exercise that right. The Court was satisfied that the interests of the other unrepresented defendants were common with those of his own. Furthermore, their previous legal representation had ceased in the middle of the case because of lack of funds. There were also personal difficulties attending those whom the self-represented party wished to represent.
[10] (1993) 60 SASR 145.
Finally, reliance was placed on r 32.01 by which the Court may give the conduct of any action or proceeding “to such person as it thinks fit” and on r 33 (intervention). Rule 32.01 is not a rule dealing with representation of a party. It is designed, either in a representative action or in a multi-party action to enable the Court to determine that a particular party will conduct the action on behalf of others. Rights of intervention under r 33 are limited to persons who come within the qualifications set out in r 33.01. The lay representative in this case does not meet those qualifications.
It was for these reasons that I considered that the application for leave to a non-lawyer to represent the appellant should be refused.
The course of proceedings before the Industrial Magistrate
When the proceedings were commenced in the Industrial Relations Court, the respondent was required to file an answer. The answer filed indicated that the respondent alleged:
(a)That the claims were out of time;
(b)That the appellant resigned from his employment in 1990; and
(c)That the claims were an abuse of process.
It is not quite clear what the third allegation was intended to convey other than that it was the view of the respondent that the appellant had no reasonable prospect of success.
Section 154 of the Act provides:
(1)In exercising its jurisdiction, the Court or the Commission –
(a) is governed in matters of procedure and substance by equity, good conscience, and the substantial merits of the case, without regard to technicalities, legal forms or the practice of courts; and
(b) is not bound by evidentiary rules and practices but may, subject to subsection (2), inform itself as it thinks appropriate.
(2)The Court and the Commission must observe the rules of natural justice.
This allows some degree of informality in proceedings in the Industrial Relations Court for a money claim which might not be the case in an ordinary court of civil jurisdiction. However, the rules of natural justice would require that an opposing party be given adequate notice of any defence to a claim to be relied on, and that no such defence would be decided against an applicant unless the applicant is afforded a reasonable opportunity to answer the claim, both by way of leading relevant evidence and by way of making submissions on the question.
Leaving aside questions of an extension of time, the issue presented to the Industrial Magistrate by way of the respondent’s answer concerned whether or not the appellant had resigned from his employment in 1990.
The Magistrate found that the appellant commenced work as a camp attendant with the respondent in October 1987. The respondent was a contractor who provided catering services at the Moomba Gas Field in the north-east of South Australia. Following a strike in 1989 the appellant alleged that he had been victimised by management of the respondent. He then developed a psychiatric condition which was accepted by WorkCover as a compensable disability. He did not perform work for the respondent after the week commencing 6 February 1990. He received weekly payments of worker’s compensation until 1 June 1994, and thereafter has been in receipt of an annual payment of compensation pursuant to s 42A of the Workers Rehabilitation and Compensation Act 1986 (“the WRC Act”). Those findings of the Magistrate were not contentious.
In November 1990 a telephone call took place between the appellant and the Human Resources Manager for the respondent. The appellant gave evidence of that conversation and was adamant that he did not resign.
The respondent tendered a copy of a separation certification, being a Department of Social Security form for use in connection with claims under the Social Security Act. It was dated 22 March 1991, signed by the Human Resources Manager of the respondent and was given to the appellant at about that time. The form had a number of boxes to complete, and in answer to a question, “Did the employee cease work voluntarily?” the Human Resources Manager had ticked “Yes”, giving as the reason, “Worker’s comp claim up to 8/11/90”. The Human Resources Manager of the respondent was not called. The only other evidence of resignation relied on by the respondent was a self-serving letter from the respondent to the appellant’s then solicitors dated 15 January 1999, in which the assertion was made that the appellant resigned his position over the telephone on 8 November 1990.
The Industrial Magistrate made no finding as to whether the appellant had resigned. Instead, she concluded:
By providing the applicant with the separation certificate in March 1991 the respondent indicated its intention to no longer be bound by the contract of employment. In my view the applicant’s employment came to an end at the time he received the separation certificate.
The Magistrate concluded that because the employment came to an end at that time, there could be no claim for any period after 22 March 1991. She held that she had no power under s 48 of the Limitation of Actions Act 1936 to extend the time for commencing an action based on employment before that date. She concluded that that section could not apply to the Industrial Relations Court because of the operation of s 167 of the Act. That section provides:
(1)The Court or the Commission may extend a limitation of time.
(2)However, this power may not be exercised –
(a) to extend the time within which a monetary claim must be made; or
(b) to extend the time within which a prosecution for an offence must be commenced.
It is quite clear that the principal factual issue before the Industrial Magistrate was whether the appellant had resigned from his employment in November 1990. That was the issue foreshadowed by the respondent’s answer. The Magistrate decided the claim on a quite different issue, without any analysis as to how, as a matter of law, the employment was terminated, whether the delivery of the separation certificate constituted a repudiation of the contract, whether there had been an acceptance of that repudiation, or whether the delivery of the separation certificate merely severed the relationship without affecting the contract.[11] It would appear that no submissions were heard or invited on the consequences of the delivery of the separation certificate.
[11] See Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 450-453, 465-467, 461-463; Consolidated Press Ltd v Thompson (1952) 52 SR (NSW) 75; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 427-428.
The appeal to a single judge
A number of issues were agitated on the appeal to the single Judge, some of which are not relevant for present purposes. Given the finding of the Industrial Magistrate, the focus of the appeal, not surprisingly, shifted to the finding that the employment “came to an end” in March 1991. The appellant, through his lay advocate, sought to argue that such “termination” was unlawful by virtue of what was then s 58b(3) of the WRC Act which provided:[12]
(3)If a worker has suffered a compensable disability, the employer from whose employment the disability arose must not terminate the worker’s employment (except on the ground of serious and wilful misconduct) without first giving both the Corporation and the worker at least 28 days notice of the proposed termination of employment.
[12] A similar provision is now contained in s 58C of the WRC Act.
It seems that the Judge treated the delivery of the separation certificate as a termination of the employment by the employer, and that even if it was unlawful, it was still sufficient to terminate the employment relationship, notwithstanding that the contract of employment might continue.[13] The Judge went on to hold that the wrongful dismissal constituted repudiation of the contract which was accepted by the appellant, thus putting an end to the contract. No reasons were given to support the finding that the appellant accepted the repudiation. Having made those findings the Judge went on to hold that the Court had no power to extend the limitation period by virtue of s 167(2) of the Act which effectively excluded the operation of s 48 of the Limitation of Actions Act. He relied for that on an earlier decision of a single Judge of the (then) Industrial Court of South Australia in Kohn v Apcel Pty Ltd.[14]
[13] Byrne v Australian Airlines Ltd (1995) 185 CLR 410, Brennan CJ, Dawson and Toohey JJ at 427.
[14] (1989) 56 SAIR 45.

It appears that no point was taken by the appellant before the single Judge that the Industrial Magistrate had decided the case on an issue which had not been raised by the respondent. Perhaps that is not surprising, given that the appellant was not represented by a legal practitioner. The argument concentrated on the conclusion of the Industrial Magistrate as to whether the finding of termination was correct. However, in dealing with that question, the single Judge made further findings amounting to repudiation of the contract by the respondent and acceptance of that repudiation by the appellant, when the parties had had no opportunity to lead evidence which might be relevant to such findings.
The appeal to the Full Court of the Industrial Relations Court
On the appeal to the Full Court of the Industrial Relations Court, that Court concluded that, absent a resignation by the appellant, there was no evidence of termination of the contract. The action of the employer in delivering a separation certificate was possibly an act of repudiation, but the Full Court concluded that there was no evidence of acceptance of the repudiation. That may well be correct, as questions of repudiation and acceptance were not even raised before the Industrial Magistrate. The Court did not address the finding of the single Judge that the repudiation was accepted. The Court therefore concluded that those events did not bring an end to the contract. However, the Full Court went on to conclude that by 13 January 1997 the contract had been frustrated. Because that had taken place by 13 January 1997, and because there is no power to extend time, the appellant’s claim had to fail.
The respondent before this Court acknowledged that the question of frustration of the contract had been neither pleaded nor argued before the Full Court of the Industrial Relations Court. Had it been pleaded or argued, and had the appellant been legally represented, the Court’s attention might have been focussed more than it was on the consequences of the decision of the Supreme court of New South Sales in Finch v Sayers[15] where Wootten J observed that the starting point for consideration of any question of frustration is an analysis of the terms of the contract. He pointed out that many conditions of a contract of employment were now regulated by statute or industrial award, including conditions of annual leave, sick leave, long service leave and superannuation. Wootten J continued:[16]
One important feature of many of these benefits, e.g. long service leave, annual leave, sick leave and superannuation, is that they commonly depend on, or are proportioned to, continuity of service. In such circumstances, the proposition that, independently of any act of the parties, a contract of employment is automatically discharged by a certain degree of incapacity on the part of the employee bears a totally different aspect from what it did one hundred years ago. Then it merely meant that the employee could not be sued for not carrying out the agreed work, and the employer did not have to go on paying for work which was not being performed, and hold the job open. Today a similar proposition could have a quite unforeseen and arbitrary effect on accruing rights, as is indeed claimed by the defendants in this very case and would man the automatic discarding of the disabled employee in a way quite inconsistent with current attitudes and industrial practice.
…
In short, the usual understanding in many types of employment today is that prolonged incapacity of an employee does not automatically terminate the employment but, subject to sick leave rights, excludes the employee from work and the employer from the obligation to pay, and gives the employer (and perhaps also the employee) the right to terminate the employment.
[15] [1976] 2 NSWLR 540.
[16] Ibid at 547-548.
Importantly, for the purpose of this case, Wootten J observed:[17]
The review of the authorities shows that, before one can answer the question whether a contract of employment is frustrated, one must look at the whole of the terms of the contract, express and implied, and at all the surrounding circumstances, including the provisions made for the sickness and retirement of the employee, and the general practice of the particular employer, or in similar employment. When one does this, it may well be that, in many areas of employment in contemporary society, particularly where one is dealing with an indefinitely continuing relationship, and not the performance of a specific task, there is relatively little room for the operation of the doctrine of frustration due to illness.
[17] Ibid at 558.
The approach of Wootten J to the frustration of contracts of employment has been endorsed by the Court of Appeal of New South Wales as being “overwhelmingly persuasive in the modern industrial context”.[18]
[18] Cachia v State Authorities Superannuation Board (1993) 47 IR 254 at 273-274.
In this case none of the evidence considered by Wootten J to be relevant was considered by or argued before the Full Court of the Industrial Relations Court. There was specific reference to s 58b(3) of the WRC Act, but not in the context of frustration, and a passing reference to “the obligations imposed upon SHRM by the WorkCover Act”. It would have been relevant to consider not only the terms of any award governing the appellant’s employment, but also a number of relevant statutory provisions. Those provisions include but are not limited to s 6(1) of the Long Service Leave Act 1987 under which a worker’s continuity of service is not affected by, among other things, absence of the worker from work on account of illness or injury, and s 6(2) of that Act which would seem to provide that such absence, unlike absence for some other reasons, counts as service for the purpose of long service leave entitlements.
In the case of a worker such as the appellant, entitled to the benefits of the WRC Act, the continuing entitlement to annual leave and annual leave loadings is preserved by s 40. Reference has already been made to s 58b(3) of the WRC Act.[19] Reference should also be made to s 58b(1)[20] which requires an employer, with some exceptions, to provide suitable employment for an incapacitated worker who is able to return to work. There is no limitation on the period for which that obligation continues.
[19] Now s 58C.
[20] Now s 58B.
By embarking upon a finding that the contract of employment was frustrated when the question had not even been argued, the Full Court of the Industrial Relations Court failed to afford procedural fairness to the appellant, and the proceedings miscarried in a substantial way. Mr Stanley, counsel for the respondent, argued that the failure to afford procedural fairness would not have made any difference.[21] I disagree. There were many factual issues on which no evidence had been led which could affect the outcome. It is not possible to say that additional evidence could not affect the outcome. Relevant legislation and its effect on those issues was not considered. The application of the doctrine of frustration to those facts and legislation could well produce a different result.
[21] Cf Craig v Workers Compensation Tribunal (2004) 90 SASR 490.
It follows that, in my opinion, the decision of the Full Court of the Industrial Relations Court must be set aside and the matter remitted to that Court for further hearing.
The Court did not consider it necessary to make a finding as to when the contract was frustrated, other than to say that it was before 13 February 1997, and as time for commencing the proceedings could not, in the Court’s view, be extended, a finding as to when the contract was frustrated was not necessary. If the contract became frustrated at a later date or if, indeed, the Court does have power to extend the time within which to bring proceedings, a finding as to when the frustration occurred would be necessary, along with a consideration of the effect of the Frustrated Contracts Act 1988.
A disturbing feature of this case is that at every level in the Industrial Relations Court there has been a significant denial of procedural fairness by the Court embarking on a finding on a matter which had not been properly identified as being an issue before it, for which there was no adequate factual foundation laid or then able to be laid, and which was not the subject of argument before the Court. A moment’s reflection will indicate a denial of natural justice at each level. As s 154 of the Act expressly provides, the less formal procedures attending proceedings in the Industrial Relations Court and the Industrial Relations Commission do not excuse the Court from affording natural justice to a party before it. The Court should be even more vigilant to ensure that those principles are observed when a litigant is unrepresented or where lay representation on complex legal or factual issues is inadequate.
Extension of time
Thus far, the Industrial Relations Court, at every level, has determined that the Court has no power to extend the time within which the application may be brought. Upon a proper consideration of the factual issues which have been or which may be raised, the Court may well conclude, for one reason or another, that the contract of employment was terminated before 13 January 1997. If the Court’s conclusion as to its inability to extend time is correct, that may well defeat the appellant’s claim. One of the grounds of appeal to this Court for which leave to appeal was not granted concerned the power of the Court to extend the time within which an application could be brought. As leave was not granted, this question has not been considered by this Court, although had it been necessary to do so, I would have been inclined to extend the leave to appeal to enable that point to be argued. There is a question as to whether s 167(2) of the Act, in referring to “this” power is referring to the power to extend a limitation of time conferred by s 167(1), or whether it also refers to the power conferred by s 48 of the Limitation of Actions Act. It also seems that the Industrial Relations Court’s attention was not drawn to an earlier decision of the Full Court of the Industrial Court in R v Prince Alfred College[22] which might require the point to be decided differently. That decision also seems not to have been drawn to the attention of the single Judge who decided the case of Kohn v Apcel Pty Ltd[23], being the decision on which the single Judge of the Industrial Relations Court in this case relied. As we have not heard argument on the point it is not appropriate to decide it. However, as the matter must be remitted to the Industrial Relations Court, the question of the Court’s power to extend time may well need to be reconsidered by that Court.
[22] (1979) 46 SAIR 771.
[23] (1989) 56 SAIR 45.
Conclusion
In my opinion the appeal should be allowed and the matter remitted to the Full Court of the Industrial Relations Court. It will be for that Court to determine whether it decides the issues for itself or remits it to a Judge or an Industrial Magistrate for determination. I would merely observe that, if issues other than the appellant’s alleged resignation are to be pursued, it appears fairly clear that further factual findings will be necessary.
To some extent the appellant, by not responding appropriately to the problems as they have arisen, has allowed this unfortunate situation to develop for longer than it should. For that reason I would make no order as to the costs of the appeal. I would strongly urge the appellant, before the matter resumes in the Industrial Relations Court, to reconsider his decision not to engage a lawyer. This case presents a number of complex legal issues. The appellant and the Court would be greatly assisted by a lawyer with some experience in employment law.
GRAY J:
This is an appeal against a decision of the Full Court of the Industrial Relations Court of South Australia (“Full Industrial Court”) pursuant to section 191 of the Industrial and Employee Relations Act 1994 (SA).
I have had the advantage of perusing the draft reasons of Bleby J. His Honour has extensively reviewed the facts. I respectfully adopt that review. I refer to the facts only where necessary for an understanding of my reasons.
The appeal by Peter Gianscaspro arises from a dispute concerning employee entitlements and the termination of the appellant’s employment with the respondent, SHRM (Australia) Pty Ltd, as a camp attendant at Moomba, South Australia. The appellant sought leave to appeal to the Full Industrial Court’s decision on 13 grounds. On 10 December 2004, a Judge of this Court granted leave to appeal on grounds that may be broadly summarised as follows:
-whether wrongful dismissal terminates an employment relationship,[24]
-whether the contract of employment came to an end through frustration, and[25]
-whether that event of termination occurred independently of any action by the employer.[26]
[24] “The learned judges of the Full Industrial Court erred in law in failing to hold that the learned single judge’s equation of the matter in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 427 to this matter is unsound. There is no denial that “a wrongful dismissal terminates the employment relationship”. However, the issue raised in this matter is that of a breach of section 58b(3) of the Workers Rehabilitation and Compensation Act 1986 (SA), and not any wrongful dismissal as the appellant (plaintiff) contended under cross-examination that his employment never terminated.”
[25] “The learned judges of the Full Industrial Court erred in law in holding that the appellant’s (plaintiff’s) employment came to an end as a result of frustration. The respondent (defendant) did not plead that the contract of employment had been frustrated, the respondent (defendant) pleaded that that the appellant (plaintiff) voluntarily resigned from his employment, to which the appellant strongly denies.”
[26] “The learned judges of the Full Industrial Court erred in law in holding that the event of termination occurred independently of any action by the employer, and that a consideration of Section 58b(3) of the Workers Rehabilitation and Compensation Act, as it then was, does not arise.”
Although these were the grounds upon which this Court would consider the appeal, it became apparent at the hearing of the appeal that there was a fundamental problem with the process followed by the Full Industrial Court. The respondent accepted that such a problem existed. Accordingly, as will become apparent below, it became unnecessary for this Court to consider the grounds of appeal as framed in the notice of appeal.
Background
On 13 January 2003, the appellant made a claim for unpaid annual leave, long service leave and other allowances in the Industrial Relations Court. During the period from 1987 to 2002, the period of time in respect of which he claimed these entitlements, the appellant had received compensation payments pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA).
An Industrial Magistrate found that the appellant’s employment had come to an end in March 1991. The employer had provided a separation certificate after a conversation in which the employer alleged that the appellant had resigned. The appellant did not challenge the existence of such a conversation but denied any suggestion of resignation. The magistrate held that the separation certificate brought the contract of employment to an end, without making a finding as to the alleged resignation.
The appellant appealed the magistrate’s decision to a single judge of the Industrial Relations Court, which found that the termination of employment was unlawful having regard to the provision of section 58B(3) of the Workers Rehabilitation and Compensation Act. However, notwithstanding the conclusion of unlawfulness, the Court held that the termination of the employment relationship was effectual. The appellant then appealed this decision to the Full Industrial Court.
On 10 September 2004, the Full Industrial Court dismissed the appeal. The Full Industrial Court found that the issuing of the separation certificate by the employer was not sufficient to support the finding that the contract of employment had been terminated. However, the Court further held that, as the appellant had not presented himself for work since 6 February 1990, and had been unfit for work since that time, the contract of employment was frustrated. The Full Industrial Court concluded:
[O]n the facts in this case, the inescapable conclusion is that by 13 January 1997, the claimant’s contract of employment … had come to an end …
The Full Industrial Court reached this conclusion despite the fact that neither party pleaded frustration, nor raised frustration in argument, nor made frustration the subject of any submission at any stage, either at trial or on appeal. The parties were not on notice that the Full Industrial Court would consider the question of frustration, let alone on notice that it may be determinative of the appeal.
The Appeal
On the hearing of the appeal, the primary question debated was whether the Full Industrial Court’s failure to afford the parties natural justice required that the appeal be allowed and the matter be remitted to the Full Industrial Court, or whether the failure made no difference to its decision, leaving no reason to interfere with the decision.
Section 154 of the Industrial Employees Relations Act provides for the manner in which hearings of the Industrial Relations Court are to proceed. Section 154 provides:
(1)     In exercising its jurisdiction, the Court or the Commission –
(a)     is governed in matters of procedure and substance by equity, good conscience, and the substantial merits of the case, without regard to technicalities, legal forms or the practice of courts; and
(b)     is not bound by evidentiary rules and practice but may, subject to subsection (2), inform itself as it thinks appropriate.
(2)     The Court and the Commission must observe the rules of natural justice.
It was not in dispute between the parties that by failing to give notice that the doctrine of frustration would be considered, as well as by failing to permit the parties to make submissions on that issue, the Full Industrial Court failed to afford the parties procedural fairness and failed to comply with the requirement in section 154(2). Counsel for the respondent conceded as much in his written outline of submissions:
Pursuant to section 154(2) of the IER Act the Court must observe the rules of natural justice. Notwithstanding this requirement the Full Industrial Court found the appellant’s contract was frustrated without affording the parties an opportunity to be heard on this issue.
Counsel for the respondent submitted, however, that it did not necessarily follow that because there was a breach of the rules of natural justice this appeal should be allowed. Counsel submitted that in some circumstances it is open for a court to conclude that a failure to accord natural justice or procedural fairness could not possibly have made any difference to the ultimate decision, making it unnecessary to re-decide or remit the matter.
In Jones v National Coal Board,[27] the English Court of Appeal succinctly stated the general rule establishing a right to a fair trial in the following terms:[28]
There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.
[27] [1957] 2 QB 55.
[28] [1957] 2 QB 55 at 67.
This passage was referred to by the High Court in Stead v State Government Insurance Commission.[29] The Court continued:[30]
That general principle is, however, subject to an important qualification … That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact. … However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy the denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.
[29] (1986) 161 CLR 141 at 145.
[30] (1986) 161 CLR 141 at 145-146.

This statement of principle was referred to with approval by members of the High Court in Re Refugee Review Tribunal; Ex Parte Aala.[31]
[31] (2000) 204 CLR 82 at [4] (Gleeson CJ); at [58] (Gaudron and Gummow JJ); at [104] (McHugh J); at [130]-[133] (Kirby J); at [172] (Hayne J) and at [211] (Callinan J).
In Craig v Workers Compensation Tribunal,[32] Doyle CJ, with whom Perry and Vanstone JJ agreed, made the following observation:[33]
The rules of natural justice or, as they are more commonly called these days, the rules of procedural fairness, are at the heart of the administration of justice. Assuming the rules have not been displaced by statutory provision, and there is no such suggestion in this case, a breach of those rules will almost always be an error of law that will, subject to statutory limits on the power of the relevant Court to interfere, either result in an appeal against the decision being allowed (assuming there is a remedy by way of appeal) or in the relevant decision being set aside in the exercise of the supervisory jurisdiction of the Supreme Court.
[32] (2004) 90 SASR 490.
[33] (2004) 90 SASR 490 at [45].
Doyle CJ then went on to cite Stead for the proposition that not every denial of natural justice will necessitate a remedy.
This is a case where the denial of natural justice directly affected the entitlement of the parties to make submissions on an issue of fact - the issue of frustration of the contract of employment. The test to determine whether there has been frustration of a contract adopted by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales[34] was that proposed by Lord Radcliffe in Davis Contractors Ltd v Fareham Urban District Council:[35]
[F]rustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which is undertaken by the contract.
[34] (1981-1982) 149 CLR 337 at 357 (Mason J); at 376-377 (Aickin J); at 408 (Brennan J).
[35] [1956] AC 696 at 729.
In order to apply this test, Brennan J observed:[36]
... it is necessary to refer to the contract to ascertain what [the party] was bound to perform and then to inquire whether performance in the changed situation affected by the supposed frustrating event is within the contractual promise.
[36] (1981-1982) 149 CLR 337 at 408.
The determination of whether or not a contract has been frustrated accordingly involves questions of fact.
This is further supported by the dicta of Wootten J in Finch v Sayers:[37]
[B]efore one can answer the question whether a contract of employment has been frustrated, one must look at the whole of the terms of the contract, express and implied, and at all of the surrounding circumstances, including the provisions made for the sickness and retirement of the employee, and the general practice of the particular employer, or in similar employment.
As these matters all raise issues of fact, it follows that the question of frustration itself is primarily a question of fact. The parties had the right to explore the question of frustration properly at the hearing of the appeal to the Full Industrial Court. They were not permitted to do so.
[37] [1976] 2 NSWLR 540 at 558.
By failing to permit the parties to present evidence in support of a finding of frustration; by failing to allow the parties a full opportunity to contest that evidence or to call contrary evidence to test or disprove a finding of frustration; by failing to permit the parties a full opportunity to present submissions on the issue of frustration; and by failing to write a reasoned judgment applying the correct legal principles to each issue of fact critical to the determination of the matter, the Full Industrial Court failed to accord the parties procedural fairness.
Regardless of whether the Full Industrial Court was correct in concluding that the doctrine of frustration did apply to a contract of employment, and whether it was correct in finding that the contract between the appellant and the respondent had been frustrated, the Court’s failure to permit the parties to make submissions upon this issue necessitates that this matter be remitted for further hearing and determination.
It may be that the Full Industrial Court itself will be inadequately equipped to determine the issue of frustration on the factual basis as established by the hearing at first instance before the magistrate. As such, it may be necessary for that Court to remit the matter for further hearing and factual inquiry. However, I agree with Bleby J that this is a matter for the Full Industrial Court.
Representation
At the hearing of the application for leave to appeal to this Court, Mr Mayers-Browne, who is not a legal practitioner, sought to appear on behalf of the appellant pursuant to Rule 32.01 of the Supreme Court Rules 1988 (SA). Mr Mayers-Browne acted as advocate for the appellant throughout the hearings in the Industrial Court. Before substantive submissions were heard in relation to the present appeal, the Court heard submissions from Mr Mayers-Browne, the appellant in person and counsel for the respondent in respect of Mr Mayers-Browne’s application to represent the appellant at the hearing of the appeal. The Court rejected the application.
Mr Mayers-Browne’s application raised the question of whether the Court had a discretion to permit a person other than a legal practitioner to represent other litigants, and if so, whether it is appropriate in the circumstances of the present case for the discretion to be exercised in favour of allowing Mr Mayers-Browne to appear.
It is clear that the Court does have a discretion to permit a non-legally trained person to represent litigants.[38] Notwithstanding, it remains the well-established practice that persons other than qualified legal practitioners are not permitted to appear for litigants. The history of the matter did not suggest that Mr Mayers-Browne would be able to represent the appellant adequately or to assist the Court.
[38] Galladin Pty Ltd v Aimnorth (1993) 60 SASR 145 at 147.
In the present case, there was no reason to depart from this well-established practice. During the course of submissions on this issue, the appellant was invited to seek legally qualified counsel to represent him. The appellant appeared to understand the consequences of seeking assistance from a non-legally trained person but remained adamant that Mr Mayer-Brown appear on his behalf.
Mr Mayers-Browne was not permitted to appear before this Court on the hearing of the appeal on behalf of the appellant. However, the Court explained to the appellant that there was no restriction on the appellant seeking the assistance of Mr Mayers-Browne, or any person, in the preparation of his case and the construction of his written outline of argument.
The appellant appeared in person on the hearing of the appeal.
Conclusion
The appeal should be allowed. The matter should be remitted to the Full Court of the Industrial Relations Court of South Australia.