Linden Alfred Butcher v The Roads and Traffic Authority

[1999] NSWCA 138

CITATION:	Linden Alfred BUTCHER v THE ROADS AND TRAFFIC AUTHORITY [1999] NSWCA 138
FILE NUMBER(S):	CA 40748/98
HEARING DATE(S):	10 May 1999
JUDGMENT DATE:	10 May 1999
PARTIES :	Linden Alfred BUTCHER v THE ROADS AND TRAFFIC AUTHORITY
JUDGMENT OF:	Meagher JA at 35; Stein JA at 1; Giles JA at 36

LOWER COURT JURISDICTION:	Government and Related Employees Appeal Tribunal
LOWER COURT FILE NUMBER(S) :	GREAT 304/98
LOWER COURT JUDICIAL OFFICER:	R P J Noonan (Chairman)

COUNSEL:	R.F. Wilkins - (Appellant) J.V. Murphy - (Respondent)
SOLICITORS:	Doyle Kingston and Swift - (Appellant) The Roads and Traffic Authority - (Respondent)
CATCHWORDS:	Appeal from Government and Related Employees Appeal Tribunal - denial of natural justice - procedural fairness - court officer acting as employee's representative - admission of evidence of enterprise agreement
ACTS CITED:	Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 33, s 33(2)(b), s 43(1), s 54 Compensation Court Act 1984 (NSW), s 32
DECISION:	Appeal dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40748/98
MEAGHER JA
STEIN JA
GILES JA


Monday, 10 May 1999

Linden Alfred BUTCHER v THE ROADS AND TRAFFIC AUTHORITY
JUDGMENT

1    STEIN JA: This is an appeal from a decision of the Government and Related Employees Appeal Tribunal (commonly referred to as the GREAT). The decision, which was delivered by the Tribunal on 9 September 1998, arose out of a hearing at Broken Hill on 21 August 1998. It concerned an appeal by Mr Linden Alfred Butcher, the present appellant, and his employer, The Roads and Traffic Authority, the respondent to this appeal. 2    The constitution of the Tribunal at the time of the hearing in August last was Mr R P J Noonan, who was the chairman, Mr C Timson, the employer’s representative, and Mr A Conway, the employee’s representative. 3    I will return a little later in these reasons to the circumstances of the appointment of Mr Conway as the employee’s representative. 4    I need to back-track a little in my dissertation of the facts before coming to the grounds relied on in the appellant’s notice of appeal. 5    Mr Butcher, so it seems, was on 20 April 1998 directed to travel in an RTA vehicle to a camp site at Tibooburra at around 6 am. He was directed by his employer to do so. He disputed that he should do so unless he was paid for at least part of the travelling time; so he did not go on that day. 6    The following day he was again directed to do so by his employer and he again refused to do so. He was informed at a later time, including in writing, that he was considered to have abandoned his duty and would be regarded by the employer as being on leave without pay. 7    On 1 May 1998 he lodged a notice of appeal with the GREAT. Thereupon there occurred a question of whether the GREAT had jurisdiction. This was dealt with as a preliminary question by the Tribunal on 15 June 1998 in Sydney. The senior chairman, Mr J L Lynn, presided and had power under the Government and Related Employees Appeal Tribunal Act 1980 (the GREAT Act) to determine the question of jurisdiction. 8    The senior chairman, in the reasons he gave, noted that the appellant had twice travelled from Broken Hill to attend the Tribunal and, in those circumstances, he believed that the matter should be dealt with immediately. After a hearing on the preliminary point Mr Lynn gave a decision. The decision was a favourable one to the appellant and that meant that jurisdiction had been found, notwithstanding that Mr Butcher had not been dismissed as such. 9    It was then necessary for the hearing on the merits to be set down and, for the convenience of the parties and the witnesses, that was to take place in Broken Hill. As I have mentioned, that hearing took place on 21 August 1998, when Mr Kingston, solicitor, appeared for the appellant and Mr Murphy, who has appeared for the respondent before us today, appeared for the Roads and Traffic Authority. 10    There are essentially two grounds of appeal. The first is that Mr Conway’s membership of the Tribunal at the hearing of 21 August 1998 denied procedural fairness to the appellant in that, so far as I understand the appellant’s submission, there was a reasonable apprehension of bias on the part of Mr Conway. 11    The second point in the appeal relates to the admission into evidence of a document known as the ‘Butterfield Agreement’. It is maintained in the notice of appeal that this document was wrongly admitted into evidence. 12    Before dealing with these two grounds of appeal, it is as well to note some relevant provisions in the GREAT Act. Section 54 deals with appeals to the Supreme Court and, under the Supreme Court Act 1970 (NSW), the jurisdiction to hear an appeal resides in the Court of Appeal. 13 Section 54 of the GREAT Act provides for a right of an appeal to the Supreme Court against any decision of the Tribunal on a question of law. Interestingly enough, it does not go on to add as, for example, s 32 Compensation Court Act 1984 does, that whilst there is an appeal on a question of law only (and not fact) there is also an appeal in relation to the wrongful admission of evidence. Section 54 of the GREAT Act does not add that and there may well be a good reason why it does not. The Tribunal by reason of s 43(1) of the GREAT Act, is not bound by the rules or practice as to evidence and may inform itself on any matter in such manner as it thinks fit. 14 The other section to mention as relevant to the appeal is s 33. The Tribunal at any hearing, other than perhaps one that relates purely to jurisdiction, comprises three persons; a senior chairman or chairman, and that in this case was Mr Noonan, an employee’s representative and an employer’s representative. The Act provides how the panels for each list of representative employee and employer are made. I need not go into those details. 15 However, s 33 provides for a situation where either an employer or employee representative neglects or refuses to take an oath referred to in Schedule 2 to the Act, or importantly for this case, is not present at the time, on the date and at the place appointed for the hearing of the appeal. 16 In that circumstance the chairman presiding at the time may select a person to act in the place of that member and, so far as the employee’s representative is concerned, the only requirement under s 33(2)(b) is that the employee’s representative has to be an employee. 17 Subsection (3) provides that a person so selected, in the circumstances which I have just mentioned, while acting in the place of a member, shall have and may exercise the functions of a member. 18 It appears for the purposes of the first argument that Mr Conway, who was an officer of the Department of Industrial Relations, (and therefore an employee under the provision which I have just mentioned) was acting as a Court or Tribunal officer at the hearing on 15 June 1998 when the senior chairman dealt with the jurisdictional issue. 19 When the employee’s representative did not turn up at Broken Hill for the hearing of the merits of the appeal on 21 August, according to the evidence before us, immediately before the hearing commenced the legal representatives for the parties were called into chambers. Mr Noonan, the chairman presiding, indicated to them, that is, Mr Kingston, the solicitor for the appellant, and I assume Mr Murphy, who appeared for the employer, that the employee’s representative had failed to show up and that he had selected a person to act in the place of that member. That person was Mr Conway, who was an employee of the Department of Industrial Relations. The chairman referred then specifically to s 33 of the GREAT Act as giving him the power to do so and asked whether there was any objection. According to the evidence before us, at least from Mr Kingston for the appellant, but I also assume the representative for the employer, indicated there was no objection. 20    The hearing then commenced and at the very outset of the hearing the chairman said the following in the presence of the appellant and his legal representative, the respondent officers and its legal representative:

For the record the person selected to be the employee’s representative on the Tribunal is not present at the time, date and place fixed for the hearing of this appeal so pursuant to s 33 of the Government and Related Employees Appeals Tribunal Act I have selected another employee, Mr Conway, employed by the Department of Industrial Relations to be the employee’s representative for the purposes of the hearing of the appeal.

21    I should interpolate that the transcript refers to Mr Conway as the employer’s representative, but both parties agree that there is a transcript error and the reference was to the employee’s representative.

22    I should also note (and this is also common ground) that there was no objection at that point of time by either party to Mr Conway participating as the employee’s representative on the Tribunal, nor at any other point of time during the hearing and before the decision was given in writing. 23    So far as the first and second grounds of appeal are concerned it is the submission of counsel for the appellant that there was a reasonable apprehension of bias because something may have been heard by Mr Conway at the preliminary hearing, something one assumes confidential said by someone about the proceedings, and that would raise a reasonable apprehension of bias when Mr Conway participated as the employee’s representative at the hearing in August last. 24    The second string to the appellant’s argument, so far as I understand it, is that because Mr Conway on the first occasion had carried out the duties of a court officer or analogous to a court officer, once he was promoted (as it were) to being one of the presiding panel on the Tribunal on 21 August, he would be likely to do as he was told by the chairman. 25    In relation to both of the ways in which the appellant’s counsel puts the point, there is in fact no evidence that Mr Conway would have any actual bias, nor that he overhead anything that would be in any way compromising to his sitting as a member of the Tribunal, nor raise any reasonable apprehension of such. 26    There certainly is no evidence that he did, in terms of his part in the hearing of the appeal, or the giving of the decision, anything to indicate that he was under the chairman’s thumb in his participation in both the hearing and the giving of the decision. 27    The respondent’s counsel, in the circumstances which I have just exposed, submits that without any evidence on these matters (and, as I have said, there is none other than I have mentioned) the submission of apprehended bias is no more than fanciful.

28    I must say that I agree. I can see nothing in the circumstances which occurred, nor in the evidence, which remotely suggests that any reasonable bystander would apprehend any bias in Mr Conway. The mere fact that he acted in the role of the court officer on a jurisdictional hearing does not give rise to any such reasonable apprehension.

29    In any event, if there was such an apprehension, then in all probability it was waived. It was waived quite expressly both in chambers before the hearing commenced and by implication at the hearing when the chairman exposed the situation. 30    It may be noted that in the affidavit of Mr Kingston sworn 29 April 1999, which was read on the appeal without objection, it appears that the appellant had been aware at the time of the hearing in Broken Hill in August that Mr Conway had been present at the preliminary hearing in Sydney some months earlier and he believed from what he had seen that he had acted as ‘just the doorman’ (see para 6 of the affidavit). 31    I would conclude, although it is unnecessary to do so, that if there was a reasonable apprehension of bias, that such bias was waived by the appellant and his representative. That disposes, in my opinion, of the first ground of appeal. 32    The second aspect to the appeal is the allegation of wrongful admission of evidence. The notice of appeal alleges that the Tribunal wrongfully admitted evidence relating to an agreement known as the ‘Butterfield Agreement’. Leaving aside the section which I quoted earlier, s 43, which says that the Tribunal is not bound by the rules of evidence, and also leaving to one side s 54, that an appeal to this court is confined to a question of law, the first thing that must be noted about the admission of the Butterfield Agreement is that, when it was tendered, it was not objected to. It was clearly seen as to be a relevant document. 33    Assuming that it is open to the appellant to appeal on the wrongful admission into evidence, and putting to one side s 43 of the Act, it is my view that there was no error in the admission of the document. I think it is unnecessary for me to elaborate further with regard to the second point of appeal. It fails, as does the first. 34    I would propose that the appeal be dismissed with costs. 35    MEAGHER JA: I agree. 36    GILES JA: I also agree. 37    MEAGHER JA: The order of the court, therefore, is that the appeal is dismissed with costs.

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