Marksman Training Systems Pty Ltd v Iindustrial Relations Commission of South Australia and William Trevor Siegloff No. Scgrg-97-510 Judgment No. 6604 Number of Pages 27 Administrative Law

[1998] SASC 6604

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

MATHESON, DUGGAN AND NYLAND JJ

CATCHWORDS:

Administrative law - second defendant dismissed from his employment with the plaintiff for alleged larceny - application to a Deputy President of IRC alleging dismissal was harsh, unjust and unreasonable unsuccessful - whether his appeal to the Full Commission should have been allowed - consideration of nature of appeal from a single member to the Full Commission - whether the Full Commission approached the Deputy President's findings correctly - whether error was of a jurisdictional nature - whether certiorari lies to quash the Full Commission's decision. DeVries v Australian National Railways Commission
(1993) 177 CLR 472; Gibbons v Jennings & Others (1996) 64 IR 330; Re Keely and Another; ex parte Kingham and Others (1995) 129 ALR 255; Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch (1991) 173 CLR 132; The King v War Pensions Entitlement Tribunal (1933) 50 CLR 228, applied.

HEARING:

ADELAIDE, 14, 24 October 1997 (hearing) 31 March 1998 (decision)

#DATE 31:3:1998

Appearances:

Plaintiff:

Counsel: Ms R Layton QC, with Ms S Merrigan

Solicitors: R J Manuel and Co

Defendant IRC:

No Attendance

Defendant Siegloff:

Counsel: Mr F Di Fazio

Solicitors: Moloney And Partners

ORDER: application dismissed.

MATHESON J

The employment of the second defendant, Mr William Trevor Siegloff ("Mr Siegloff"), with the present plaintiff, Marksman Training Systems Pty Ltd was terminated on 6 May 1996. Mr Siegloff's application to the Industrial Relations Commission of South Australia for a determination that his dismissal was harsh, unjust and unreasonable was heard and dismissed by a Deputy President. The Full Commission allowed his appeal, and ordered that the application be further heard as to the remedy only before another Deputy President or Commissioner. The employer now applies for an order in the nature of certiorari to quash the decision of the Full Commission.

A right of appeal to the Full Commission from the determination of a Deputy President is provided for in s207 of the Industrial and Employee Relations Act 1994 ("the Act"), and s208(3) of the Act provides: "(3) On the hearing of an appeal, the Full Commission may-

(a) take fresh evidence;

(b) confirm, quash or vary the whole or part of the determination under appeal;

(c) direct a Commissioner to furnish a report on a specified matter (and the Commissioner to whom the direction is given must, after making the necessary investigation, furnish a report accordingly);

(d) refer the subject matter of the appeal, or any matter arising in the course of the appeal, back to the Commission constituted of a single member, with directions or suggestions the Full Commission considers appropriate;

(e) make a determination dealing with the matters under appeal (but no such determination can include any provision that would be outside the powers of the Commission constituted of a single member);

(f) subject to this Act, fix a date as from which a determination or variation of a determination made by the Commission constituted of a single member is to come, or will be taken to have come, into operation;

(g) dismiss the appeal or any part of the appeal."

There is no right of appeal from the Full Commission to the Supreme Court. Section 206 of the Act provides: "206.(1) A determination of the Commission is final and may only be challenged, appealed against or reviewed as provided by this Act.

(2) However, a determination of the Commission may be challenged before the Full Supreme Court on the ground of an excess or want of jurisdiction."

Stated very briefly, the plaintiff says the Full Commission exceeded its jurisdiction in that it acted contrary to its obligations as an appellate body, and in that it denied the employer natural justice.

There is no dispute about the following part of the Deputy President's findings of fact, and they provide a useful introduction - the applicant at that stage was Mr Siegloff and the employer was the respondent: "Having regard to all of the evidence before the Commission, I have determined the following basic findings of fact in this matter. The applicant, who is 25 years of age, was employed by the respondent on 11 December 1995 as a permanent full-time employee. The applicant's employment followed a period of training where he attended a security industry course conducted by the respondent. It should also be noted that the applicant has been a keen shooter for many years and has been involved with a variety of 'gun clubs' for some time. The applicant's attendance at the training course conducted by the respondent, was arranged by the Australian Army, following his discharge in September 1993 by reason of knee injuries sustained in the course of his Army service. The applicant also undertook some 'casual' work, servicing the respondent's re-loading equipment prior to being employed as outlined above.

The respondent's business involves the conduct of training courses for security officers and other personnel in the security industry, and the establishment and conduct of an indoor shooting range.

The applicant's employment was originally contemplated as being part-time, however upon confirmation of a degree of subsidy from the Department of Defence, the respondent offered the applicant full-time employment in a range of activities including the re-loading of ammunition and various activities associated with the conduct of the shooting range and associated armory. The applicant's employment was apparently subject to the provisions of the Security Officers Award of this Commission, and in that context, the respondent took the view that Clause 17(d) created a 3 month probationary period of employment. Although this matter was never discussed with the applicant, it is clear to me that respondent considered that to be the applicant's status and such was confirmed with the relevant Defence Department officials when confirming the applicant's employment arrangements. However in this context, the fact that the applicant's employment was continued beyond the three month's probationary period, is a factor to be taken into account.

The nature of the applicant's employment activities, included both re-loading ammunition in the upstairs part of the respondent's premises, and in acting as a range officer and instructor in the downstairs firing range.

The evidence as to the early period of the applicant's employment, was that he had highly developed technical skills and armoury expertise which were well utilised within the respondent's operation, and that the applicant was particularly safety conscious. Indeed, I find that these characteristics were present during the entire course of the applicant's employment. Relatively early in the course of employment, the applicant offered the respondent the use of his own re-loading press, which was to be used as part of the re-loading of ammunition for subsequent use in the firing range. The press offered by the applicant, and subsequently utilised by the respondent, is known as a Dillon XL650, which according to all of the evidence was a superior press to those then owned and used in the respondent's operation. There is some conflicting evidence as to the basis upon which the press was offered, and it is the events associated with the replacement of the press on 6 May 1996, which has brought this matter to the Commission. Accordingly, the evidence associated with the press will be dealt with in due course."

In a document filed with the Commission, the employer gave the following reasons for the second defendant's dismissal: "1. The Respondent presented to the Applicant a Staff Appraisal dated 9 th April 1996, which outlined the shortcomings of the Applicant in the areas of staff and customer relations.

2. That the Respondent was aware of further instances of the Applicant's behaviour and poor performance and in particular:

(a) Incident on 17 th April 1996 of the destruction of cases which were to be reloaded.

(b) Incident when work injury was reported to a third person in breach of the Respondent's Confidentiality Rules.

(c) Incident on 1 st May 1996 concerning an unlocked armoury door.

3. That prior to the incidents in Paragraph 2 above being discussed with the Applicant, that the events of the 6 th May 1996 overtook these incidents.

4. That on 6 th May 1996, the Respondent became aware that the Applicant had packed a new ammunition reloading press into his bags and had removed these from the area where they were kept to a downstairs location in order to remove these goods unlawfully from the Respondent's premises.

That the Applicant was questioned by Mr. A. Marks of the Respondent and that the Applicant did not provide a satisfactory explanation for the removal of the property and further, he did change his story. It was further discovered that the Applicant was removing two guns in the possession of the Respondent without first advising the Respondent in contravention of the Respondent's policy.

That the Applicant was given every opportunity to explain his conduct.

5. That the conduct on 6 th May 1996 was the 'last straw' and that the Applicant's employment was then terminated by the Respondent."

The Staff Appraisal dated 9 April 1997 referred to in par 1, supra, was in the form of a letter written by the employer's managing director, Mr A G Marks, to Mr Siegloff. It read: "STAFF APPRAISAL - BILL SIEGLOFF

Your routine staff appraisal is attached for you to read and study. Whilst in most areas you are rated quite highly, in the areas of staff and customer relations, you are rated as being poor and in need of dramatic improvement.

The reasons for this are due to the following incidents and/or circumstances which have been brought to my attention over the past several weeks:

I have had the following complaints from customers relating to the following incidents/occurrences:

a. Where a customer asked a question regarding a firearm and you replied with the words to the effect 'next dumb question' - this was done in front of other customers and staff.

b. Three customers arrived at the range on Saturday 23 rd March 1996 for a booking they had made for lessons. When they arrived they asked for the booking, however they were not booked in - upon questioning them they informed me that they had made a booking through you, however there was no booking under their names. They then complained about your manner with them over the phone in the sense that you were 'rude/arrogant with them'.

c. Another circumstance arose about a week or so ago when you were rude to a staff member who was hosting her supervisor in the range and slammed the drop-down counter across her path behind the counter and were apparently rude to her in front of her supervisor. This caused her extreme embarrassment in front of her supervisor and made her supervisor uncomfortable as well.

d. There have been several instances where you have been rude to other staff in front of other customers relating to training and firearms matters. These occasions have started to undermine their confidence whilst they are on shift with you since they never know when you are going to 'butt in' while they are instructing or while dealing with customers - imagine how you would feel as an instructor when your credibility is brought into question by another workmate in front of customers.

e. I am also aware that you (in jest) called another member of staff 'wog' and other similar terms as a 'stir'. As you are aware the use of racist and other derogatory terms is not permitted in this workplace irrespective of the intention behind the comments, since they may be miss-interpreted[sic] by the person whom they are said to and also by staff and customers who may be present at the time.

f. I have also been made aware that you have also told a female member of my staff to 'get fucked' whilst in the reception area of the range. This caused the female member to take offence to a minor degree - notwithstanding this the[sic] language should not have been used even in jest. Other instances of using foul language have also been brought to my attention.

h. The last is a copy of a customer survey form which was faxed to us as a result of mailing them out to members. As you can see it is scathing assessment of you as a Range Safety Office[sic] because of the way you have dealt with them. Unfortunately we do not have the name of the person because they were not required to put their name on the form, however it is not a good indication as to the way in which you interact with customers. Whoever this person is they have not been dealt with in a friendly way and as they state on the form the[y] wonder if they will continue with this club.

As you can see whilst I have allowed you a reasonably free hand in order for you to settle into this organisation and I have mentioned on many occasions and during staff meetings the requirement for discretion and politeness to be a feature of our dealings with the customer and team work with other staff, I cannot allow the sorts of incidents outlined above to continue as it has become obvious it is affecting our business.

As far as your knowledge of firearms, firearms training, gun maintenance and ammunition reloading is concerned I am very happy with because you perform these parts of duties to a high standard - it is the public and staff relations aspects which are affecting your overall performance.

Accordingly I advise you that I require you to examine your own performance in the areas of customer/staff relations and teamwork. This means that you need to work consciously on how, when, where and what you say to customers and other staff particularly in relation to the sorts of comments and language you use and 'jokes' which are easily miss-interpreted[sic].

If you do not or can not improve in these areas within a reasonable time I will be left with only two options:

a. restrict you[r] duties to non-customer contact related duties such as ammo reloading and maintenance; or, b. termination of employment.

I do not wish to do either - what I would like to see is for you to work on the areas which I have detailed above and succeed in improving your performance in those areas.

Please consider the above within the next few days and when convenient arrange a time with me to discuss this appraisal in detail.

Please read and sign as having seen this document - return one copy to me for our files.

(Signed) A.G. MARKS Managing Director 9/4/96

I have received and read a copy of this letter

(W. SIEGLOFF)

April 1996'

Mr Siegloff did not sign the copy letter or return it to Mr Marks as he was asked to do.

The Deputy President expressed views on the credibility of witnesses which in my opinion were clearly open to him and free of ambiguity. They were favourable to the witnesses for the employer and unfavourable to Mr Siegloff, and I propose to quote extensively from the judgment. In regard to Mr Siegloff, the Deputy President said:

"As a general rule, whilst the applicant's recall of events in examination-in-chief was clear and plausible, he was seriously challenged under cross-examination and his failure to recall certain critical incidents, and his tendency to attempt to evade recollection of certain conversations or matters critical to the determination of the application, have made the applicant a somewhat unsatisfactory witness."

Of Mr Dovi, called by Mr Siegloff, the Deputy President said:

"Mr. Dovi has worked as a security firearms instructor since approximately March 1995, and had worked with the applicant in that capacity. In addition, Mr. Dovi was a fellow member of a pistol shooting club with the applicant, and had known Mr. Siegloff for some years prior to them both securing employment with the respondent. Although Mr. Dovi was a witness to certain incidents which will be discussed in due course, his evidence regarding the conduct and language of the applicant was in many senses more positive than that as conceded by the applicant himself, and his evidence as to certain arrangements which he says were made regarding the reloading press at the centre of the events of 6 May 1996, was not consistent with any other evidence before the Commission. Having regard to these elements and the demeanour of the witness, I am not convinced that the evidence of Mr. Dovi is of much assistance in the determination of this application."

Of Mr Andrew Marks, the Deputy President said:

"In general terms, whilst I was not without reservations regarding Andrew Marks' evidence regarding one of the matters before the Commission, I found his evidence to be reliable and where it conflicts with that of the applicant, it is the evidence of Andrew Marks that I prefer."

Mr Jess Marks is the son of Mr Andrew Marks, and of his evidence the Deputy President said:

"Although the evidence of Jess Marks was influenced somewhat by his poor relationship with the applicant, I generally found his evidence to have been given honestly."

Ms Sally Marks is married to another son, namely Mr Luke Marks. Of her evidence, these comments were made:

"Ms. Marks gave general evidence regarding the demeanour and conduct of the applicant and in particular, an incident which occurred in early 1996. The evidence of Ms. Marks was in my view given open and honestly and will be treated as such."

Next, I refer to the Deputy President's comments on Ms Joanne Macrow. He said:

"The evidence of Ms. Macrow, went to an exchange which took place between herself and the applicant, in the context of Ms. Macrow accompanying a number of her full-time work colleagues to the firing range. In addition, Ms. Macrow's evidence went to the general demeanour within the workplace. Having regard to Ms. Macrow's evidence, I propose to place weight on her version of events where it conflicts with that of the applicant."

The Deputy President described the evidence of Luke Marks as "credible", and that of Mr Thomas Camplin "to be consistent and reliable, and [he] proposed to rely on it as such".

The allegation against Mr Siegloff referred to in par 4 in the document filed with the Commission, supra, was a serious one. It led to Mr Andrew Marks calling in the police, and subsequently dismissing Mr Siegloff. On the morning of his dismissal a new ammunition reloading press, which had been ordered, arrived. Later that day Mr Siegloff put the new press in his own bag, and took it downstairs. The critical factual dispute in the case related to the circumstances in which he placed it in his bag, and what he said at different times on 6 May to Mr Jess Marks and Mr Andrew Marks.

The Deputy President said in a very important passage:

"This dispute must be resolved in part according to the credibility of the witnesses as found by the Commission, and as to the overall consistency and balance of evidence touching upon the issue. On balance, I find that the understanding reached between the applicant and Andrew Marks as confirmed on 6 May 1996, was that the exchange would be limited to the toolheads, dies and associated equipment, but was not understood by either party to include the press. I further find that the applicant took the matter into his own hands in deciding that the fairness of the situation warranted that the new press be exchanged rather than merely the toolheads and dies. In this context, I find that the applicant in showing the equipment to Jess Marks, was attempting in his own mind to legitimise the judgment which he had made on his own behalf. I also find on the balance of probabilities that when confronted with the possession of the press, he was initially unsure as to a response that ought to be given, then gave an implausible explanation, and subsequently did admit that he had made a mistake and that he was sorry, and offered to correct the situation. The interchange that followed between the applicant and Andrew Marks was heated. The applicant was subsequently dismissed by Andrew Marks, after returning upstairs and briefly considering the matters."

It is convenient here to mention that the Deputy President found proved many, if not all, of the other incidents of misbehaviour on the part of Mr Siegloff. None of them were very serious, and could be summed up as rudeness to customers and staff and insubordination. The Deputy President did not find that they constituted serious defaults or offences, but his findings thereon favourable to the applicant did reflect his views on the credibility of Mr Siegloff.

It is convenient also here for me to say that in my opinion the judgment of the Deputy President appears to be very thoughtful, thorough and fair minded. Moreover, he had the inestimable advantage of observing Mr Siegloff in the witness box for one and half days, and Mr Andrew Marks for over two days.

Although they had not seen the witnesses, or exercised their power to take fresh evidence, or to direct the Deputy President to furnish a report, or to refer the issue back to the Deputy President - they had power to do the last three of these things - the Full Commission said that they were "not able to share the confidence that the Deputy President had in Mr Andrew Marks' veracity", and spoke of "the real concerns [they] have about Mr Andrew Marks' veracity as a witness".

The Full Commission was clearly profoundly influenced by what Mr Andrew Marks had written in a letter he had drafted, but never sent, to Mr Siegloff, which became Exhibit R3. It purports to have been typed on a word processor on different dates. In several places the month of May is referred to when clearly it should have been the month to April that was being referred to, and vice versa. The critical part of the draft letter in the Full Commission's reasons for judgment was the following postscript:: "Note. Since drafting this letter I have found it necessary to terminate Mr Siegloff's employment: This was due to an incident which occurred on 6 th April[sic] 1996. Mr Siegloff was asked by me to set up an[sic] new ammunition reloading press which arrived at approximately 9.30am that day. After unpacking the equipment he asked if he could swap new toolheads for his old ones which he had been using on site in his press whilst we were waiting delivery of the new reloader. I agreed for him to do the swap as I considered this a fair arrangement.

Later that day another member of the range staff asked me if I had given him permission to take the entire new press. I said that I did not. Upon investigation I found that Mr Siegloff had left his old press set-up in the reloading room and had packed the brand new press into his large army bag and had taken it downstairs ready to take it home with him - this occurred at about 3.30 pm the same day.

When confronted by me about this I was told by him that I had given permission for this to occur - I informed him that at no stage did the swapping of the entire press (valued at around $1300) come up in the brief discussion about swapping the tool heads. He then offered to take the press back upstairs and also said that he had taken it downstairs to adjust it ready for use upstairs (some three flights of stairs). I then went back upstairs to find out what he had said to the other range staff member. After speaking with that person I asked Mr John Harrison, a fellow director of the company, to ask Mr Siegloff to bring his bags (it transpired that he had two army bags with equipment in them) upstairs whilst I called police to investigate the matter.

Upon advice from Police it was decided not to press charges mainly because the items had not been taken off the property and it would be difficult to gain a conviction against Mr Siegloff. During the police interview and inspection of the bags two firearms which were supposed to be in the custody of the company were found. Upon checking with the owners it was apparent that some arrangement was made for Mr Siegloff to return them to the owners. In cases where guns which are in the custody of this company are to be taken off site it is normal procedure to advise me before they are going to be transferred. This was not done until I became aware the firearms were missing from the armoury where they are normally stored. Mr Siegloff stated that he was going to tell me about this matter before he left work that day.

I terminated Mr Siegloff's employment as a result of these latest incidents and breaches of company policy and of course for a series of other incidents outlined in the first part of this letter, and those outlined in his first warning outlined to him in person and via letter on 9 th April 1996 (a copy is attached). I asked him to remove the equipment which belonged to him which was still set up in the reloading room - he again asked if he could take the new press. I told him that he could not but that he could take new tool heads to replace those of his own as I had agreed to originally. The police officer supervised this procedure and escorted Mr Siegloff from the premises. I also told him to report to this office in the morning the following day to collect his final pay. Before he left he stated that he was going to take us to court for unfair dismissal and also for high blood lead levels. He asked for a copy of his blood tests - I said that he could have them when he collected his pay in the morning of the following day."

It is convenient here to have regard to the Deputy President's comments on R3. He said:

"The document was admitted by me, on the basis that it would be used for reference purposes only, and would not as such be taken as evidence of the truth or otherwise of various allegations that are set out in the document itself. Having subsequently heard all of the evidence surrounding Exhibit R3, whilst I maintain the view that it is not evidence of any of the facts alleged in the document, it is however indicative of the attitude of the respondent at various times, and I propose to have regard to it as such. In this context, I find that the letter was progressively written at times commencing in early April 1996, and whilst it was not at any stage provided to the applicant, and some of the preconditions as referred to in the draft letter were not met, I find that the respondent was in fact intending to make 'progress' towards the dismissal of the applicant."

Notwithstanding all that the Deputy President said on questions of credibility and notwithstanding that counsel for Mr Siegloff did not cross-examine Mr Andrew Marks on the alleged inconsistencies in Exhibit R3, the Full Commission formed the view that the relevant part of R3, supra, was "totally contrary" to the oral evidence of Mr Andrew Marks, "but equally importantly is consistent with the appellant's oral evidence". Later the Full Commission said: "The essence of the appellant's evidence is that he had the agreement of Mr Andrew Marks to exchange a new reloading press for the one that he loaned the respondent for some months and which had received on balance about 20 times more use than it would have if it had remained in the appellant's possession. The appellant also gave evidence, which was unchallenged, that his press had been damaged whilst in the service of the respondent. The value of the new press was in excess of $1,000.00. There was about such an arrangement on the face of it an element of fairness. Leaving to one side the statement in Exhibit R3 of Mr Andrew Marks that there was no such agreement, rather there was an agreement to exchange certain toolheads and dies, the evidence of the appellant was to the effect that these last named items were not subject to wear and his own dies, also used by the respondent, were separated out to take home with the new press. We are disposed to believe the appellant on this point as his evidence is consistent as to the separation of these items and it is apparent that he was the more proficient armourer and therefore his version as to the working life of the toolheads and dies is to be preferred. The further evidence of Mr Andrew Marks, to the effect that the appellant lied and invented a story about taking the press downstairs to adjust it, was denied by the appellant and does seem to be a rather strange embellishment in all the circumstances of the case. The press would have to be returned upstairs. If there had not been time to adjust and set up the press that day, then it could have been done on the following day as the respondent would not have been inconvenienced in its loading schedule as the appellant's press was still bolted to the bench. When Mr Andrews Marks' evidence is set in the context of the frank written admission of the appellant's explanation in Exhibit R3, then there is a substantial and important difference in the two stories he presents. The credibility of Mr Andrew Marks is thus, in our opinion, open to questions; such is the scope of the inconsistency of the two versions.

We believe that if the Deputy President had considered the admission in Exhibit R3 in the context of the other evidence, it is likely he would have come to the conclusion, as we have, that is, that the appellant's version of the events is to be preferred, or at the very least he would have needed to critically reassess his findings in relation thereto. Put in its best light for the respondent, it could be said that the appellant was acting under an erroneous, but honestly held belief, that he was entitled to exchange the new press for his. Rarely, if ever, would acting thus be grounds for instant dismissal or, for that matter, dismissal on notice.

Accordingly, following a careful and detailed assessment of all of the evidence and [having] formed our own conclusions on some important issues previously detailed in these reasons (and in particular the real concerns we have about Mr Andrew Marks' veracity as a witness) we find that the appellant was wrongfully dismissed and the matter will be set down for hearing before another Deputy President or Commissioner as to remedy only."

I am bound to say that, quite apart from the actual question as to whether the Full Commission misconceived the nature of the appeal to them, I regard the passage just quoted as unsatisfactory. It is true that Mr Andrew Marks did not in his evidence before the Deputy President actually state that the respondent, when confronted, told him that he thought he had agreed to swap the entire press. However, he was not cross-examined about his statement to that effect in R3, and that is significant having regard to the facts that he stated that his son Jess had come to him earlier on the day in question to enquire whether, as the second defendant had claimed to Jess Marks, he had agreed to swap the entire press, and not merely toolheads, including dies. Moreover, Mr Andrew Marks was aware that that is what the second defendant was saying to the police. Far more significant in my view was the express denial by the second defendant in evidence that he told Mr Andrew Marks the wholly implausible story that he had taken the press downstairs to adjust it. Such adjustments are carried out in the loading room on the top floor. This denial was not mentioned by the Full Commission. Further, I do not think the Full Commission was in a position to comment on the "fairness" of the second defendant's evidence about a swap, particularly having regard to the fact that dies do wear, and that the applicant had purchased $50 worth of pistol grips for the second defendant. I entirely agree with the submission of Ms Layton, counsel for the plaintiff, that R3 was wrongly interpreted by the Full Commission. It contained support for Mr Andrew Marks' version and in some respects did not support the second defendant's version.

Ms Layton QC, submitted that the Full Commission misused its appellate role, and referred in particular to observations of the High Court in DeVries v Australian National Railways Commission (1993) 177 CLR 472. At p479, in their joint judgment, Brennan, Gaudron and McHugh JJ said:

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'".

At pp482-483, Deane and Dawson JJ said:

"... the circumstances of the case were such that, consistently with the obligation to make full allowance for the advantage which the trial judge had enjoyed, the Full Court could properly overturn the trial judge's finding only if it was vitiated by some error of principle or mistake or misapprehension of fact or if the effect of the overall evidence was such that it was not reasonably open to the trial judge to accept Mr. DeVries as a witness of truth."

There was some discussion about the nature of the appeal from a single member to the Full Commission in Gibbons v Jennings & Others (1996) 64 IR
330. Council for the plaintiff there submitted that the appeal was not a rehearing, but was what he called a strict right of appeal. Debelle J in his judgment (with which Cox and Mullighan JJ agreed) said at p334:

"The different kinds of appeal have been identified by Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 and those reasons were followed and applied by Cox J in Wigg v Architects Board
(1984) 36 SASR 111 at 112-114. The terms of s98 indicate that the appeal to the Full Commission is not an appeal strictly so called. It is unnecessary, when determining the issues in this application, to decide the true nature of the appeal. It is sufficient to note that, on any view, the Full Commission had a full jurisdiction to hear and determine whether the Commissioner had correctly decided whether to grant or refuse the application for extension of time. By virtue of s98(3) of the Act it had jurisdiction to confirm, quash or vary the whole or part of the decision and was at liberty to take fresh evidence."

His Honour was referring to the 1972 Act. The comparable section in the Act now under consideration is s208, supra. It seems to me that the appeal is of the same nature as the appeal from a single judge of this Court to the Full Court. I have no doubt that both appeals are properly to be categorised as appeals by way of rehearing, see Supreme Court Actss48 and 50 and R97.17 of the Rules of the Supreme Court . In my view, just as this Full Court on hearing an appeal from a trial judge must approach the judge's finding in the way the High Court explained in the case of DeVries , supra, so also must the Full Commission on an appeal from a single member.

Ms Layton conceded that it was not enough for her to show the Full Commission fell into legal error. The error must be of a jurisdictional nature. As Wilcox J observed in Re Keely and Another; ex parte Kingham and Others (1995)129 ALR 255 at p278 "... minds may differ upon the question of whether or not a particular error of law was one of a jurisdictional nature". The sharp division of various courts in many of the leading cases testifies to that. One of such cases, and upon which both counsel sought to rely, was Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch (1991) 173 CLR 132, ("the PSA case"). At pp143-144, Brennan J (as he then was) said: "The essential relief which the F.C.U. and the A.S.W.U. sought and obtained by way of judicial review was an order requiring the Full Commission to hear and determine according to law the application for leave to appeal which, it was submitted, the Full Commission had constructively failed to determine. The foundation for relief of this kind is stated by Jordan C.J. in Ex parte Hebburn Ltd.; Re Kearsley Shire Council
(1947) 47 SR (NSW) 416 at p420, in a passage cited by Aickin J. in Reg. v. Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, at p268:

'I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: R. v. Minister of Health [1939] 1 K.B. 232, at pp245-246. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply "a wrong and ... inadmissible test": Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust [1937] AC 898, at p917; or to "misconceive its duty", or "not to apply itself to the question which the law prescribes": R. v. War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at pp242-243; or "to misunderstand the nature of the opinion which it is to form": R. v. Connell
(1944) 69 CLR 407, at p432, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law: R. v. Board of Education [1910] 2 KB 165.'

In this case the Full Commission's error lay in regarding the proposed appeal as involving no more than an appellate review of an unstructured discretion whereas, as we have seen, the proposed appeal required a rehearing on the merits of the issues arising under each of pars (a), (b) and (c) of s.121(5) in the light of whatever evidence was placed before and received by the Full Commission ... The Full Commission misconceived its jurisdiction and failed to consider the true question which they had to decide, namely, whether leave to appeal should be granted to permit a rehearing of the application on the merits. This was a jurisdictional error Hammond v. Hutt Valley & Bays Milk Board , [1958] NZLR 720."

As Wilcox J observed in Keely's case, Dawson and Gaudron JJ, the other members of the majority in the PSA case, followed somewhat similar reasoning, and I agree with Ms Layton, however, that the dissenting judgment of McHugh J at p164 also contains a helpful passage. His Honour said:

"Speaking generally, it can be said that there is a 'want of jurisdiction' when a court or tribunal does an act which is beyond its general power or authority and that there is an 'excess of jurisdiction' when it does an act, the doing of which is within its general power or authority, but which was done in breach of the conditions which authorise the doing of acts of that class or nature ... it is not uncommon for superior courts to use the phrases 'want of jurisdiction' and 'excess of jurisdiction' interchangeably. Nevertheless, whichever phrase is used to describe the situation, an inferior court or tribunal can be said to have acted in excess or in want of jurisdiction only when the relevant act was done in breach of the conditions which define the ambit of the powers and authorities of that court or tribunal."

I have reached the conclusion that the Full Commission did not merely err in its interpretation of the evidence. There was an excess of jurisdiction in that they misconceived their appellate duty. This was not a case where the appellate court purported to apply what the High Court said in DeVries , but nevertheless reached an erroneous conclusion. That would not constitute jurisdictional error. I understand that the case of DeVries was actually cited to the Full Commission, but of course I do not criticise their judgment because the case was not mentioned. What I would hold, however, is that they have actually ignored what it decided was their duty. That was the error. To adapt words in the joint judgment of Rich, Dixon and McTiernan JJ in The King v War Pensions Entitlement Tribunal (1933) 50 CLR 228 at 242, they "failed to comply with [the] requirement essential to [a] valid performance [of their duty]". In the circumstances, it is unnecessary for me to consider Ms Layton's other arguments. The applicant is entitled to an order in the nature of certiorari to quash the decision of the Full Commission. I would hear further submissions as to whether it is entitled to other relief.

DUGGAN J

The facts of this matter are set out in the judgment of Matheson J. As His Honour points out the plaintiff was the employer of the second respondent, Mr Siegloff. Mr Siegloff's employment was terminated by the plaintiff and he then applied to the Industrial Relations Commission for a determination that his dismissal was harsh, unjust and unreasonable. A Deputy President of the Commission dismissed the application, but the Full Commission allowed an appeal by Mr Siegloff. In the proceedings before this court the plaintiff seeks an order in the nature of certiorari to quash the decision of the Full Commission.

Section 206 of the Industrial and Employee Relations Act 1994 (the Act) provides that a determination of the Commission is final, but it may be challenged before this court on the ground of an excess or want of jurisdiction. According to the plaintiff's argument the Full Commission misconceived its jurisdiction and failed to apply the test appropriate to the consideration of an appeal of the type before it. This failure, so it was argued, resulted in the Full Commission acting in excess of its jurisdiction. It was also argued that the Full Commission failed to observe the rules of natural justice. The plaintiff contended that this breached a fundamental requirement of the Commission's jurisdiction.

The starting point for a consideration of this argument is to examine the nature of an appeal to the Full Commission under the Act. The relevant section (s208(3) ) is set out in the judgment of Matheson J. It is in almost identical terms to s98(3) of the Industrial Relations Act 1972 (SA) which was considered by this court in Gibbons v Jennings and Ors (1996) 64 IR 330. In that case the full court held that an appeal to the Full Commission was not an appeal strictly so-called and that the Full Commission had a full jurisdiction to hear and determine whether the matter had been correctly decided. (Debelle J ibid at 333). It is obvious that the nature of an appeal to the Full Commission has not been altered under the present legislation.

The grounds of appeal from the decision of the Deputy President to the Full Commission alleged a series of errors in the findings of the Deputy President on issues of fact and it follows that the Full Commission was required to exercise its appellate function in the manner described by the High Court in De Vries v Australian National Railways Commission (1993) 177 CLR 472. Despite the length of the passage I think it is useful to set out the views of Deane and Dawson JJ on this issue at p479: "An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge's assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence. The 'value and importance' of that advantage 'will vary according to the class of case, and, ...[the circumstances of] the individual case' (see Watt (or Thomas) v Thomas [1947] A.C. 484, at p488, per Lord Thankerton.). If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant. If the finding is unaffected by such error or mistake, it will be necessary for the appellate court to assess the extent to which it was based on the trial judge's conclusions about the credibility of witnesses and the extent to which those conclusions were themselves based on observation of the witnesses as they gave their evidence as distinct from a consideration of the content of their evidence. Judges are increasingly aware of their own limitations and of the fact that, in a courtroom, the habitual liar may be confident and plausible, and the conscientious truthful witness may be hesitant and uncertain. In that context, it is relevant to note that the cases in which findings of fact and assessments of credibility are, to a significant extent, based on observation of demeanour have possibly become, if they have not always been, the exception rather than the rule. Indeed, as Kirby A.C.J. pointed out in Galea v Galea
(1990) 19 N.S.W.L.R. 263 at p266, in many cases today, judges at first instance expressly 'disclaim the resolution of factual disputes by reference to witness demeanour'. However, this does not deny that in many cases a trial judge's observation of the demeanour of witnesses as they give their evidence legitimately plays a significant and even decisive part in assessing credibility and in making factual findings. Indeed, as will be seen, the present was such a case.

In a case where it appears that a challenged finding of fact has, to a significant extent, been based on the trial judge's observation of the demeanour of the witnesses, the members of an appellate court are inevitably placed in a position of real disadvantage compared with the trial judge. Even in such a case, however, the 'court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, The Glannibanta (1876) 1 P.D. 283 at p.287 per James L.J., Baggallay J.A. and Lush J. Referred to by Dixon C.J. and Kitto J. in Patterson v Patterson (1953) 89 C.L.R. 212 at p.129.' ".

Their Honours went on to adopt the following passage from the judgment of Lindley MR, Rigby and Collins L.JJ in Coghlan v Cumberland [1898] 1 Ch 704 at 704-705:

"Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighting and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the Court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen.' ".

The first limb of the plaintiff's argument rests on the assertion that the Full Commission failed to follow the approach identified in De Vries ' case. Judicial review on the ground of excess or want of jurisdiction was sought on the basis that the Commission had no authority to act in the way in which it did and reliance was placed on Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch (1991) 173 CLR
132. In that case a majority of the High Court held that the refusal by the Full Commission of the Industrial Commission of South Australia of an application for leave to appeal from a decision of the Registrar of the Commission on the ground that his decision was a discretionary decision which had not been effectively impugned was susceptible of judicial review on the ground that it involved an excess of jurisdiction. Brennan J held that the Full Commission's error was to regard the proposed appeal as involving "no more than an appellate review of an unstructured discretion" (p144) whereas the proposed appeal required a rehearing on the merits of the issues. His Honour said:

"The Full Commission misconceived its jurisdiction and failed to consider the true question which they had to decide, namely, whether leave to appeal should be granted to permit a rehearing of the application on the merits. This was a jurisdictional error Hammond v Hutt Valley & Bays Milk Board [1958] N.Z.L.R. 720."

However it is essential to bear in mind the important distinction between an "erroneous decision by a body having jurisdiction to deal with a particular subject-matter, and a decision by a body having no jurisdiction over the matter decided". ( Free Church of Scotland v Overtoun (Lord) [1904] AC 515 at 702).

In his judgment in the PSA case Deane J, at p151, explained the consequences of this distinction when he said:

"For the reasons which I have endeavoured to explain, the mere fact that the Commission wrongly takes account of a particular consideration (e.g. an erroneous view of the law or a mistaken view of the facts) does not mean that a proceeding before the Commission or an award or order made by the Commission is itself vitiated by an excess or want of jurisdiction. The proceeding or the award or order will be so vitiated only if the effect of the error is that the Commission purports to entertain a proceeding or make an award or order which is of a nature which the Commission has no jurisdiction, in the circumstances, to entertain or make. Nor does the mere fact that, in the exercise of the jurisdiction conferred upon it, the Commission falls into error about the identification or content of relevant questions or about the order in which it should deal with questions mean that the award or order actually made is itself amenable to challenge on the ground of excess or want of jurisdiction within the exception contained in s.95(b). To the contrary, the privative provisions of s.95 manifest a plain legislative intent that an award or order made by the Commission should, if they were made in circumstances where the Commission possessed jurisdiction to entertain the proceedings and to make an award or order of that nature, be immune from challenge, review or calling in question in the ordinary courts."

Although Deane J dissented from the ultimate conclusion reached by the majority, the remarks quoted above are not inconsistent with the majority view and his Honour's reasoning was applied in Gibbons v Jennings (supra at 333).

Craig v The State of South Australia (1995) 184 CLR 163 is also of assistance. In that case a District Court judge made an order staying criminal proceedings against an accused person who was not represented by counsel. The High Court held that the judge had not acted outside his jurisdiction. Although dealing with the jurisdiction of a judge at first instance, the reasoning in the joint judgment of the High Court applies equally to a determination as to whether the Full Commission in the present matter exceeded its jurisdiction. Their Honours said:

"The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error." (p180)

I turn then to the facts of the present case. Mr Siegloff was employed in the plaintiff's business, the principal activity of which was to train security personnel and others in the use of firearms. According to the plaintiff's case as it was presented before the Deputy President, Mr Siegloff's attitude and conduct over a period of time were the subject of unfavourable criticism. Allegations of swearing, rudeness to customers and insubordination came to the attention of his superiors. In addition the Deputy President was told of an incident involving "Norinco" brass shells which Mr Siegloff considered were unsafe for re-loading purposes, but which his superiors had decided could be re-used. It was claimed that in defiance of his employer's wishes, he crimped the brass so that it could not be used again. However, in the eyes of the Deputy President, the most serious incident involved an alleged attempt to steal a re-loading press from the plaintiff. This was the incident which precipitated the decision to dismiss Mr Siegloff.

The Deputy President heard evidence called by Mr Siegloff and the employer. In the course of his reasons the Deputy President said: "On this approach, as to the substantive reasons for dismissal, the Commission must assess the gravity of the offence and have regard to any mitigating circumstances in the matter. The possession of the new press by the applicant was clearly undertaken as a prelude to taking it from the premises. On the basis of my earlier findings, this was a deliberate and calculated approach. On the other hand, the applicant upon being 'caught', attempted to acknowledge and correct his mistake. As to the broader circumstances, I do not consider that sufficient grounds existed for the dismissal of the applicant on any of the other matters relied on by the respondent, (with the possible exception of the Norinco brass), and procedural fairness reservations would arise in any event. However, the findings that I have made as to the applicant's five months of employment, and in particular as to the decline in respect for the employment relationship and the crimping of the Norinco brass, do not put the taking of the press into the category of an isolated act of misconduct.

...

In my judgment, although perhaps a mistake of judgment, the offence of taking the press was, in all of the circumstances, a deliberate act of misconduct and so serious as to strike at the heart of the employment contract and to warrant instant dismissal."

The Deputy President made the following assessment of Mr Siegloff:

"The applicant, was called in support of his case, and gave evidence regarding a range of matters touching upon the application. As a general rule, whilst the applicant's recall of events in examination-in-chief was clear and plausible, he was seriously challenged under cross-examination and his failure to recall certain critical incidents, and his tendency to attempt to evade recollection of certain conversations or matters critical to the determination of the application, have made the applicant a somewhat unsatisfactory witness."

The Deputy President formed a generally favourable view of the plaintiff's witnesses and, in particular, the main witness for the plaintiff, Mr Andrew Marks. He found Mr Mark's evidence reliable and preferred it where it conflicted with Mr Siegloff's evidence.

In view of the importance of the incident involving the re-loading press it is necessary to refer to some of the evidence and the Deputy President's findings in relation to it.

Early in the course of his employment Mr Siegloff offered his employer the use of a re-loading press owned by him. As a result, Mr Siegloff's press was used for the employer's purposes. It was the intention of the employer that new presses would be purchased by the company in which event there would no longer be any necessity to use Mr Siegloff's press. The employer purchased three new presses over the period from January to May 1996.

The Deputy President summarised the versions given by Mr Siegloff (the applicant before the Deputy President) and the employer (the respondent before the Deputy President). He stated: "The applicant's version of events in relation to the press ending up in his possession on 6 May 1996 is broadly as follows. Upon receipt of the new press on the morning of 6 May, the applicant, following inspection of the new press by Andrew Marks, amongst other staff of the respondent, was about to arrange for its installation. However, the applicant considered at that point that his press had been subject to considerable use, and in his view misuse, such that it was now in a damaged condition, and that a fairer arrangement would be for him to take the new press home and to leave his existing press installed. The applicant's evidence is that Jess Marks referred the inquiry to Andrew Marks, and that a proposition was put by the applicant to Andrew Marks. That proposition being that the applicant be allowed to take the new press home in exchange for the respondent keeping what had to that point been the applicant's press, and his evidence is that Andrew Marks then agreed with that proposal. The applicant's evidence is that subsequently he sorted out the toolhead and associated equipment which he had brought in with his own press and set that out with the new press on a table in an adjacent staff room, and confirmed to Jess Marks that this was what he was proposing to take home. Subsequently, according to the applicant's evidence, he placed the press and associated equipment into a bag which he took downstairs to the armoury area at the time he was due to commence downstairs range functions on that day. The applicant further contends that he was subsequently confronted by Jess Marks as to why he had the new press in his possession, and that the applicant informed him that Andrew Marks had authorised the swap. Andrew Marks then subsequently came downstairs and confronted the applicant with his possession of the new press, with the applicant indicating that the swap was agreed and subsequently confirming that if there had been a misunderstanding, he would take the press upstairs and install it 'if that was what was required'.

The applicant indicated that Andrew Marks went upstairs, and after a short time, he was required by Jess Marks to 'see Andrew upstairs'. The applicant's evidence is that he was then told by Andrew Marks that he was fired for larceny, that he was to change the press over or the police would be called. The applicant further indicated that he again confirmed that if there was a problem then he would change the press over.

...

The respondent's version of events is that Andrew Marks was approached by the applicant some time after the arrival of the new press, and as a result of that discussion, it was confirmed that the applicant take the new toolheads and associated equipment rather than the old toolheads and dies. The respondent's evidence is that the dies and associated equipment would be to the value of approximately $120, whilst the press itself was worth substantially more. The respondent's evidence is also that the respondent had earlier agreed with the applicant to provide him with some pistol grips 'free', in recognition of the use of his press. The respondent's evidence is that upon becoming aware that the applicant had a press in his bag in the armoury, Andrew Marks confronted him and asked whether 'he had the new press downstairs?' and 'what was he doing with it?'. The respondent alleges in part that the applicant initially indicated that the new press was 'downstairs to be adjusted' and then subsequently that, 'I've made a mistake, I'm sorry'.

The evidence of Andrew Marks is that he indicated words to the effect of 'Don't fuck with me Bill' and following a heated discussion regarding the matter downstairs, and subsequently upstairs after some consideration, the applicant was fired for possession of the new press without permission, and the police were then called."

The Deputy President then made the following findings:

"This dispute must be resolved in part according to the credibility of the witnesses as found by the Commission, and as to the overall consistency and balance of evidence touching upon the issue. On balance, I find that the understanding reached between the applicant and Andrew Marks as confirmed on 6 May 1996, was that the exchange would be limited to the toolheads, dies and associated equipment, but was not understood by either party to include the press. I further find that the applicant took the matter into his own hands in deciding that the fairness of the situation warranted that the new press be exchanged rather than merely the toolheads and dies. In this context, I find that the applicant in showing the equipment to Jess Marks, was attempting in his own mind to legitimise the judgment which he had made on his own behalf. I also find on the balance of probabilities that when confronted with the possession of the press, he was initially unsure as to a response that ought to be given, then gave an implausible explanation, and subsequently did admit that he had made a mistake and that he was sorry, and offered to correct the situation. The interchange that followed between the applicant and Andrew Marks was heated. The applicant was subsequently dismissed by Andrew Marks, after returning upstairs and briefly considering the matters. As to the pistols, whilst the issues arose after the decision to dismiss had been taken, it is clear to me that the respondent did believe that the applicant was in possession of the pistols in an inappropriate fashion. On the evidence, I am satisfied that the applicant was not attempting to steal the pistols, and I have not been persuaded that there had been a breach of any alleged policy."

At an early stage in its reasons for decision the Full Commission observed that the essential issue in the appeal was whether or not Mr Siegloff attempted to steal the press. It was argued before us that this comment indicates that the appellate tribunal did not consider the whole of the evidence as it was required to do pursuant to the principles discussed in De Vries' case. I cannot agree with this argument. The Deputy President referred to the actions of Mr Siegloff in removing the press as a prelude to taking it from the premises and stated that those actions were "deliberate and calculated". He went on to say that, apart from the press incident, no grounds existed for the dismissal of Mr Siegloff "with the possible exception of the Norinco brass incident". However he said that these other incidents, including the Norinco incident, "do not put the taking of the press into the category of an isolated act of misconduct".

The Full Commission stated that it agreed with the Deputy President that the matters other than the press incident did not establish sufficient grounds for dismissal, but the members of the Commission went further and said that no reliance should have been placed upon the other incidents for reasons which they explained.

It is fallacious to argue from this that the appellate tribunal did not consider the whole of the evidence. These other incidents were assessed by the tribunal, but regarded as irrelevant. Such an assessment was within the province of the tribunal. And if these other matters were disregarded it was appropriate to point out, as the tribunal did, that the focus of attention was the alleged attempted taking of the press.

When considering the evidence in relation to the press incident the Full Commission concluded that there were a number of shortcomings in the evidence of Mr Andrew Marks. The reasons for decision also draw particular attention to exhibit R3, the document prepared by Mr Marks which summarised the allegations against Mr Siegloff and included some comments on the press incident which were written after Mr Siegloff's dismissal. The Full Commission considered that these subsequent comments were quite contrary in an important respect to Mr Marks' version of the press incident. This led the Commission to "re-assess the evidence" and the credibility of Mr Marks. In addition the tribunal identified certain aspects of Mr Seigloff's evidence which it regarded as inherently likely.

It is not for this court to pronounce on the validity of the reasoning of the Full Commission concerning the above issues of fact; rather it is necessary to consider the nature of the inquiry to which it directed its attention. Can it be said that the appellate court misconstrued its duty to such an extent as to remove it from the bounds of it jurisdiction?

In my view it would be surprising if the members of the Full Commission did not have the decision in De Vries' case firmly in mind when undertaking their task. Not only was De Vries' case mentioned in the course of submissions made to the Full Commission, but the test itself was discussed. One member of the Commission, Judge McCusker, drew counsel's attention to the concluding remarks in the joint judgment of Brennan, Gaudron and McHugh JJ where their Honours state (177 CLR at 479):

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact, see Brunskill
(1985) 59 A.L.J.R. 842; 62 A.L.R. 53; Jones v Hyde (1989) 63 A.L.J.R. 349; 85 A.L.R. 23; Abalos v Australian Postal Commission (1990), 171 C.L.R. 167). If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage', S.S. Hontesstroom v S.S. Sagaporack [1927] A.C. 37 at p47, or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable', Brunskill (1985) 59 A.L.J.R. at p844; 62 A.L.R. at p57."

Judge McCusker suggested that these comments might be taken as indicating a somewhat narrower view of an appellate court's function than the view expressed in the other judgments. Judge McCusker then added the following comments:

"If it's on credit, the position of the majority is that that's the end of the matter unless there is some 'palpable misuse, inconsistent findings, glaringly improbable' - very strong language ... You can't challenge a finding of fact based on credit - that's the law - unless for one of those factors referred to by the majority. You can't go behind the impression of the trial judge which you don't have the advantage of."

Furthermore I am of the view that there is nothing in the reasons for decision of the Full Commission which suggests that it was adopting an approach other than that prescribed in De Vries' case. The appellate court attached considerable significance to exhibit R3 and was prepared to draw from it an inference adverse to Mr Marks and favourable to Mr Siegloff. Drawing inferences and weighing them along with the rest of the evidence is a function familiar to appeals of this nature. The process upon which the Full Commission embarked was not contrary to the principles discussed in De Vries' case and appears to be in conformity with that decision. If this is so then there was no error of jurisdiction under this limb of the plaintiff's argument. In my view the Full Commission did not misapprehend or disregard the nature or limits of its jurisdiction.

The alternative argument advanced by the plaintiff was that the Full Commission failed to observe a fundamental requirement of its jurisdiction, namely, to observe the rules of natural justice. It was argued that this was a jurisdictional error. It was also argued that the failure to observe the requirements of natural justice resulted in the Full Commission's decision being void ab initio.

There is clear authority for treating determinations made in breach of the rules of natural justice as void by reason of jurisdictional error or because of a defect analogous to it. ( Stock v Grubb and Ors (1985) 39 SASR 1 at 22). However I do not regard the circumstances relied upon in the present case as amounting to a denial of natural justice. The plaintiff bases its argument on the use which the Full Commission made of exhibit R3. The relevant parts of this document are set out in the judgment of Matheson J. The Full Commission viewed as significant what Mr Marks had written in the document about his confrontation with Mr Siegloff. Mr Marks recorded that " when confronted by me about this I was told by him that I had given permission for this to occur - I informed him that at no stage did the swapping of the entire press (valued at around $1,300.00) come up in the brief discussion about swapping the toolheads" (my emphasis). The Full Commission saw this as disclosing an inconsistency in Mr Marks' oral evidence as well as indicating consistency with Mr Siegloff's evidence. The document had been admitted into evidence by the Deputy President on the limited basis referred to by Matheson J. It is argued that the failure to cross-examine Mr Marks on it was a breach of the rule in Browne v Dunn (1894) 6 R 67.

However the document was introduced into evidence by the plaintiff. (AB310). Counsel for Mr Seigloff objected to its admission. Counsel for the plaintiff succeeded in having it admitted during the examination-in-chief of Mr Andrew Marks. If there was some explanation which Mr Marks had to make concerning the passage which was eventually relied upon by the Full Commission then his counsel could have asked him about it in examination-in-chief. The subsequent use of the document for the purpose revealed in the Full Commission's reasons falls far short of a denial of natural justice.

For these reasons I am of the view that the application for certiorari should be dismissed.

NYLAND J

I have had the advantage of reading the judgments of Matheson J and Duggan J. The employment of the second defendant was terminated on 6 May 1996, following the incident relating to the press. The Commission, in its reasons described the events of that day as of "critical importance" and discussed them at some length. On the hearing of this application, Ms Layton QC, for the plaintiff, relied on three grounds in submitting that the Full Commission had committed an error in excess of jurisdiction. Firstly, it did not have regard to the whole of the evidence which it was required to take into account and had limited itself only to certain aspects thereof, contrary to the principles set out DeVries v Australian National Railways Commission [1] . Secondly, it had misconstrued and misstated its role as an appellate court in relation to the application. Thirdly, following DeVries , it had not posed for itself the appropriate question in relation to the credibility of witnesses and the limited circumstances in which findings based upon credit could be set aside.

In the proceedings before the Deputy President, evidence was led as to thirteen other incidents which preceded the dismissal of the second defendant on 6 May 1996. Ms Layton, in the course of her argument, presented a detailed and careful analysis of those incidents and I therefore think it may be useful briefly to summarise those incidents and the findings of the Deputy President with respect thereto.

1. A complaint that the second defendant had aggressively sworn at Bob Warne, a member of a pistol shooting club which utilised the range as its operational premises.

The Deputy President said that he did not consider that this particular "incident" reflected badly on the second defendant and should not be treated as such.

2. An incident relating to the refusal of the second defendant to comply with a request from Jess Marks to attend to a customer during the gun stock take.

The Deputy President accepted that this had occurred but did not appear to place any particular weight upon it.

3. The comment "next dumb question" in response to a question from a customer concerning a firearm.

The Deputy President said that it was not clear to him that the words "next dumb question" had been used. Having regard to the second defendant's own evidence on the matter, however, and his demeanour as a witness, he found on balance that "whilst the applicant's intervention was genuinely motivated, such would have legitimately been perceived as being inappropriately aggressive by the member and by Luke Marks".

4. A complaint of arrogance and rudeness by three customers relating to a problem as to a booking.

The second defendant denied in evidence that he had been rude or arrogant but confirmed he had been firm with customers. The Deputy President did not make any finding as to whether the second defendant had in fact failed to make the booking but noted that the allegation had been made by customers and accepted as such by Andrew Marks "although not the subject of any opportunity for the applicant (the second defendant) to present a view other than in response to the appraisal letter and ultimately through the course of these proceedings".

5. Rudeness to a staff member who was booking her supervisor into the range.

The Deputy President found that the conduct of the second defendant was aggressive and inappropriate. He noted, however, that the employee concerned, whilst reporting it to the management, had considered the matter to have been resolved, at least between the two of them.

6. Aggressive interference when Jess Marks was instructing customers.

The Deputy President found that Jess Marks had specifically instructed the second defendant not to interfere with him or other staff while instructing customers and that this conduct persisted to a degree. He said that this and another incident may have been motivated by a concern as to safety matters, but the second defendant's approach had been aggressive and somewhat insensitive to the impact of such actions upon the credibility and standing of his superior and other work colleagues.

7. That he had called Mr Dovi, another member of staff "wog" and used other similar terms such as "stir".

The Deputy President said that it was clear to him that Mr Dovi had not taken exception to the use of the term "wog" when used by the second defendant and the concern raised in this matter had been directed squarely at its misinterpretation by others.

8. An incident involving Sally Marks in which it was alleged that the second defendant had told her to "get fucked" whilst in the reception area of the range.

The Deputy President found that the incident had occurred, that the language was used inappropriately and that the second defendant had a tendency to use bad language in the workplace and at times inappropriately, and that whilst the second defendant was warned as to that matter, swearing in an inappropriate fashion continued throughout his employment.

9. Comments contained in a customer survey form relating to the second defendant which suggested that the second defendant had not dealt with the customer in a friendly way.

The survey was anonymous and could not be traced, notwithstanding its receipt by way of facsimile transmission. In the end result the Deputy President gave no weight to this matter.

The Deputy President found that the dismissal of the second defendant had been made against the background of these various events, rather than as a direct result of same. He then went on to refer to the following three further events which he considered had a bearing on the determination of the application.

1. The crimping of the Norinco brass casings.

The Deputy President found that the second defendant's actions on this occasion did not as such represent a breach of instruction, but rather represented the second defendant inappropriately and wilfully taking the matter into his own hands.

2. An issue relating to a breach by the second defendant of the rules as to confidentiality.

The Deputy President placed no weight on these matters.

3. An incident relating to an unlocked armoury door.

The Deputy President said that this matter had not been put to the second defendant prior to the decision to dismiss and he therefore placed no weight on this alleged incident for the purposes of determining the application.

He thereafter considered the events which led up to the dismissal of the second defendant on 6 May 1996.

He eventually said that he did not consider that sufficient grounds had existed for the dismissal of the second defendant on any of the other matters relied on by the applicant in these proceedings, with the possible exception of the Norinco brass. He commented, however, that the findings he had made as to the second defendant's five month's employment, and in particular the decline in respect to his employment relationship and the crimping of the Norinco brass did not put the taking of the press into the category of an isolated act of misconduct.

The Full Commission referred to this part of the judgment of the Deputy President and said: "It is therefore somewhat difficult to elucidate precisely what, if any, relevance those other matters had in the final decision. If they were given any weight at all then we must consider them as part of our deliberations. We suspect that some weight was accorded to them otherwise the Deputy President would simply have said words to the effect 'I have disregarded these other matters'. It seems to us that those matters formed the context of, or relevant background to, the Deputy President's decision. Our concern is that we have, after reading the evidence of Mr Andrew Marks, the Managing Director of the respondent, serious doubts that they constitute serious defaults or offences on the part of the appellant. The cross-examination of Mr Andrew Marks by Mr Di Fazio invites a number of conclusions adverse to him. It is apparent that Mr Andrew Marks took no notes of any of the alleged offences, preferring to rely upon his memory; nor does he follow up and confront the appellant with any of the allegations prior to the presentation of a staff appraisal summary dated 9 April 1996 (part of Exhibit A6); nor does he investigate the details of the alleged offences, in many cases preferring to assume that there was merit in them. Many of the reports originate from Mr Jess Marks, the Range Supervisor, a person who on any reading of the evidence is unsympathetic to the appellant. Furthermore many of the alleged offences were couched in terms of generality rather than being specific events.

We pause to reinforce the point that the very concept of an offence sufficient to justify a dismissal, or contribute to a pattern of behaviour sufficient to do so, must have about it a sufficient degree of detail and be brought to the attention of the employee so that he can know what it is that he is being challenged over.

The cross-examination also reveals that many of the offences or matters alleged against the appellant were being committed by other staff members as well, as is evidence by Mr Andrew Marks, making the matters the subject of a staff meeting rather than confronting the appellant with his individual defaults.

A careful and detailed analysis of the cross-examination on matters relating to the issues raised in Exhibit R3 at point 3 show that Mr Andrew Marks was too prone to jump to the conclusion that the appellant was in serious default without investigation and a balanced and fair weighing up of the evidence so gained. Far too frequently did we find that Mr Andrew Marks conceded that 'he assumed', or 'he supposed', or 'he gained the impression' that certain matters were the case, for us to place much reliance on his testimony as to the commission of the alleged offences by the appellant. We are confirmed in this view of Mr Andrew Marks' easy-going approach to the detailed investigation of offences, when we find that a similar relaxed approach was taken by him to the allegation that one of his employees had held a gun (albeit unloaded) to his (the employee's) head. That such an allegation could remain without serious, detailed and prompt investigation by the management of a firing range is on the face of it a matter for serious concern.

We agree with the Deputy President that the evidence as to these matters does not establish sufficient grounds for dismissal, but we would go further. If the Deputy President placed any reliance at all upon them to support his finding, we must respectfully differ.

With respect to the Norinco brass issue, the cross-examination of Mr Andrew Marks reveals that not only did he not tell the appellant of a significant change in policy with respect to the use of these particular casings, but he did not know whether Mr Jess Marks had ever done so and did not believe that it was necessary to find out before forming the conclusion that the appellant was acting in deliberate breach of his orders. Yet we find that what is asserted as fact in Exhibit R3 is at best uncorroborated supposition, and although Mr Andrew Marks alleged he had had a conversation with the appellant he was not able to say when or where with any degree of certainty. We respectfully disagree with the finding of the Deputy President that the Norinco brass issue could possibly be grounds for dismissal. Not only does it raise questions of procedural fairness or justice (or the lack thereof) as acknowledged by the Deputy President, but we are not convinced there is sufficient evidence to indicate that the appellant knew he was breaching the respondent's instructions. It follows therefore that if there is any merit in the decision to dismiss, it must be found solely in the events of 6 May 1996.

As to the incident of 6 May 1996, again we find that Mr Andrew Marks interprets the actions of the appellant in the most unfavourable way, but in a way that appears to fit the agenda which seems to be driving Mr Andrew Marks. Whilst his rumination might be interpreted as an earnest consideration of the options open to him, it must be set in the context of Exhibit R3 which formed part of an agenda that would likely result in the appellant being dismissed.

That agenda was that Mr Andrew Marks apparently intended to confront the appellant (at some indeterminate time in the future) with the offences described in Exhibit R3, and seek his explanation for them, and only dismiss if the appellant's explanations were unsatisfactory. Mr Andrew Marks' detailed knowledge of the offences was so sketchy that we are not able to see how he could make a reasoned and balanced decision as to the merits of those explanations prior to embarking on the course of action he, in any event, ultimately took. We find that the likely dismissal of the appellant in relation to the matters contained in Exhibit R3 was at the level of strong probability."

I should mention that Exhibit R3 was a letter which Andrew Marks had drafted, but never sent, to the second defendant. That document summarised the various incidents in which the second defendant had been involved prior to and including his dismissal. The Full Commission placed considerable weight on this document in reaching its own conclusion as to the credibility of Andrew Marks and the second defendant.

Following the passage quoted above the Full Commission returned to a discussion of the events of 6 May 1996 and said:

"Accordingly following a careful and detailed assessment of all of the evidence and formed our own conclusions on some important issues previously detailed in these reasons (and in particular the real concerns we have about Mr Andrew Marks' veracity as a witness) we find that the appellant was wrongfully dismissed and the matter will be set down for hearing before another Deputy President or Commissioner as to remedy only." (emphasis added)

The Full Commission in its judgment did not refer to DeVries . As Duggan J has pointed out in his judgment, however, in the course of the hearing before the Commission, Judge McCusker drew counsel's attention to the remarks contained in the joint judgment of Brennan, Gaudron and McHugh JJ at p479 which Matheson and Duggan JJ have both cited. Accordingly, I believe the Commission was alert to its obligations as an appellate tribunal.

I therefore agree with Duggan J that the process upon which the Full Commission embarked was not contrary to the principles discussed in DeVries . They considered the evidence as to the various incidents and considered them to be irrelevant. In view of the nature of the allegations and the findings by the Deputy President with respect to them, their conclusion is understandable. I think, however, that in reaching that conclusion they had insufficient regard to their relevance as to the question of credibility and therefore fell into error. In my opinion, however, that amounted to an error within jurisdiction and not an error in excess of jurisdiction.

The other basis upon which the plaintiff has applied for certiorari is that the Commission had committed a further jurisdictional error by reason of its failure to observe the rules of natural justice. This related to the use made by the Commission of Exhibit R3. I agree with Duggan J that the use made by this document by the Full Commission in its reasons falls short of a denial of natural justice. I agree with Duggan J that the application for certiorari should be dismissed.

FOOTNOTE:

[1] (1993) 177 CLR 472