Harradine v The Chief Executive of the Department for Education

[2021] SASCA 145

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

HARRADINE v THE CHIEF EXECUTIVE OF THE DEPARTMENT FOR EDUCATION

[2021] SASCA 145

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice Bleby)

3 December 2021

INDUSTRIAL LAW - WORK HEALTH AND SAFETY - GENERALLY - APPEAL AND REVIEW - LEAVE TO APPEAL

INDUSTRIAL LAW - SOUTH AUSTRALIA - APPEALS AND REFERENCES - TO SUPREME COURT

Application for permission to appeal against the decision of the Full Bench of the South Australian Employment Tribunal.

The Full Bench dismissed an appeal against an order by a Presidential Member of the Tribunal, who had earlier dismissed the applicant’s application for summary judgment.

Held (by the Court), dismissing the application for permission to appeal:

1. It was manifestly open to both the President and the Full Bench to make the decisions they did.

2. The applicant has raised no issue of principle, nor any arguable error, on the application for permission to appeal.

Fair Work Act 1994 (SA) s 10; Work Health and Safety Act 2012 (SA) s 112, referred to.
Harradine v Chief Executive of the Department for Education (No 3) [2021] SAET 197, discussed.

HARRADINE v THE CHIEF EXECUTIVE OF THE DEPARTMENT FOR EDUCATION
[2021] SASCA 145

Court of Appeal - Civil:   Livesey P and Bleby JA

1. THE COURT (ex tempore):     The applicant seeks leave to appeal against a decision of the Full Bench of the South Australian Employment Tribunal. The Full Bench dismissed an appeal against an order by President Justice Dolphin dismissing an application for default judgment. One of the grounds of appeal before the Full Bench was that the President erred in failing to disqualify himself on the ground of apprehended bias. The present application for leave is concerned with the rejection by the Full Bench of that complaint.

2. The applicant commenced litigation in the South Australian Employment Tribunal in 2018, by way of a general civil action application.  He sought orders against the Department for Education for damages for alleged breach of his employment contract, together with an alleged ‘breach of legitimate expectation’.  A Judge at first instance dismissed the proceedings.

3. On appeal, the Full Bench dismissed that aspect of the proceedings concerning an alleged breach of the contract of employment by reference to s 10 of the Fair Work Act 1994 (SA), but allowed the appeal against the decision to dismiss the proceedings insofar as they concerned an alleged breach of s 112 of the Work Health and Safety Act 2012 (SA). It remitted the matter to the President for hearing and determination.

4. In the meantime, the applicant sought permission from the Full Court to appeal against the order of the Full Bench dismissing the appeal under s 10 of the Fair Work Act 1994 (SA). On 11 March 2021, the Full Court refused permission to appeal on the basis that, on 30 October 2019, the parties had settled all claims arising out the applicant’s employment and he had agreed to discontinue all actions, including the substantive proceedings before the Tribunal.

5. The applicant then commenced further proceedings by a Statement of Claim dated 23 March 2021.  He sought, amongst other relief, a declaration that the respondent had conducted itself unconscionably in procuring his agreement to the settlement, as well as rectification of the settlement agreement.

6. On the same day, the President forwarded to the parties an order that the earlier proceedings would be dismissed if not withdrawn, on the basis that they were being used for an improper purpose, or were otherwise an abuse of process. As the Full Bench observed, it was apparent that the President considered that the proceedings could have no merit in circumstances where the applicant had settled his claims with the Department.

7. Undeterred, on 12 April 2021, the applicant sought special leave to appeal the decision of the Full Court to the High Court.  On 15 April 2021, having learned of the application for special leave to appeal to the High Court, the President rescinded his order of 23 March 2021.  

8. This appears to have occurred before the President was apprised of the applicant’s Notice of Appeal dated 11 April 2021 against the President’s order of 23 March 2021.  That Notice of Appeal raised the question whether the President’s order suggested a basis for a reasonable apprehension of bias.  In fact, the applicant later made it clear that he did not raise any question of apprehended bias before the President until 23 July 2021.  Before then, the applicant had withdrawn his appeal dated 11 April 2021 on learning that the President had rescinded his order of 23 March 2021.

9. During the hearing before the President on 15 April 2021, the applicant submitted that ‘given the appeal to the High Court, and the application to rescind [the settlement agreement] … my respectful view is that there ought not be any activity in the matters’.[1]

   [1]     Harradine v Chief Executive of the Department for Education (No 3) [2021] SAET 197, [24] Rossi & Crawley DPJJ and Cole DP.

10. Although the applicant suggested that the respondent might file an answer within two weeks, he in fact requested an adjournment for three months.  The respondent proposed a stay of any previous orders and no order other than an adjournment was sought.  The President made no orders other than to rescind his 23 March 2021 order. He adjourned the matters to 23 July 2021 for further directions.

11. Remarkably, and notwithstanding his expressed attitude on 15 April 2021, on 4 June 2021, that is, well before the 23 July 2021 hearing, the applicant applied for judgment in default of the respondent filing a defence.

12. When the matter finally came before the President on 23 July 2021, the President proposed that the application for default judgment be dismissed.  Ultimately that order was made: the President was influenced by the mutual position of the parties on 15 April 2021 that there should be no activity, including no formal response from the respondent, pending the outcome of the High Court application for special leave to appeal.

13. The applicant says that the President’s order was affected by ostensible bias, most likely prejudgment.

14. On the appeal to the Full Bench against the dismissal of that application, the applicant again raised a contention that the President’s decision was affected by ostensible bias. The Full Bench concluded that the applicant’s appeal was ‘devoid of merit’.[2]

    [2]     Harradine v Chief Executive of the Department for Education (No 3) [2021] SAET 197 [56] Rossi & Crawley DPJJ and Cole DP.

15. The proposed grounds of appeal in this Court are primarily concerned with what the applicant asserts to be a number of errors that the Full Bench made when dealing with the question of apprehended bias.  The applicant contends that there is good reason to doubt the correctness of the decision of the Full Bench and that ‘the matter is apposite to invoke the supervisory jurisdiction of the Supreme Court over inferior tribunals as the Full Bench appears to have departed from its fundamental duty to decide questions before it on their merits and not upon extraneous considerations’.

16. An appeal to this Court from the decision of the Full Bench is by leave and is limited to a question of law. Whether, on the facts as found by the Full Bench, a reasonable apprehension of bias on the part of the President arise is a question of law.

17. The decision made by the President on 23 July 2021 was well within his discretion and does not, in and of itself, suggest ostensible bias.  Likewise, nothing in the decision of the Full Bench, supported as it is by comprehensive and detailed reasons, is suggestive of error.  The rejection by the Full Bench of the submission that the sequence of events related above cumulatively gives rise to a reasonable apprehension of bias was patently open. So too was the conclusion that the applicant had not identified anything said or done by the President on 23 July 2021 that might have led him to decide the summary judgment application other than on its merits.

18. It was manifestly open to both the President and the Full Bench to make the decisions they did. The applicant has raised no issue of principle, nor any arguable error, on this application for permission to appeal.

19. We note that the President has continued to make directions in the proceedings before the Tribunal.  In the view of the Full Bench, ‘the President has not closed his mind to the possible merit’ of the applicant’s claims in the 2018 and 2021 proceedings. The applicant has not identified any reasonably arguable basis for impugning that view.

20. The application for permission to appeal should be dismissed.

21. The order of the Court is that:

    1.     The application for permission to appeal dated, 25 October 2021 is dismissed.

    2.     Costs fixed in the amount of $1000 are awarded in favour of the respondent.