Noakes v Star Aviation Services Pty Ltd - [2017] ACTIC 1

INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	NOAKES v STAR AVIATION SERVICES PTY LTD
Citation:	[2017] ACTIC 1
DecisionDate:	31 May 2017
Before:	Industrial Magistrate Walker
Decision:	See [72]
Catchwords:	INDUSTRIAL LAW – recusal – reasonable apprehension of bias – impartiality – prejudgment - particulars – description of an offence - defective information – defective charge – amendment out of time
Legislation Cited:	Magistrates Court Act 1930 (ACT) ss 25, 28, 27(2) Mining and Quarrying Safety Act 1999 (Qld) Occupational Health and Safety Act 1983 (NSW) Work Health and Safety Act 2011 (ACT) ss32, 33, 232 Work Health and Safety (National Uniform Legislation) Act (NT)
Regulation Cited:	Work Health and Safety Regulation 2011 (ACT) regs 19(1)(a), 19(3)(a), 19(3)(c), 19(3(f), 79(2)
Cases Cited:	AG NSW v Tho Services Limited [2016] NSWCCA 221 Barakat v Goritsas (No 2) [2012] NSWSC 36 British American Tobacco Australia Services Limited v Laurie & Ors [2011] HCA 2 Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332 DPP v Kypri [2011] VSCA 257 Ebner v Official Trustee in Bankruptcy [2000] HCA 63 Environment Protection Authority v Ramsay Food Processing Pty Ltd [2009] NSWLEC 152 Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89 Jenkins v Director of Public Prosecutions [2013] NSWCA 406 John L Pty Ltd v Attorney-General (New South Wales) [1987] HCA 42 Johnson v Johnson [2000] HCA 48 Kirk v Industrial Relations Commission (New South Wales) [2010] HCA 1 Kwan v Kang & Ors [2003] NSWSC 336 Lazarus v Director of Public Prosecutions [2015] NSWSC 426 Carnall v Gibbons [2016] ACTIC 1 Re JRL; Ex p CJL (1986) 161 CLR 342 R v Merrick (No 4) [2016] NSWSC 309 Rozenes and Anor v Kelly and Ors [1996] 1 VR 320 Safe Work NSW v Tamex Transport P/L [2016] NSWDC 295 Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58 S Kidman & Co Ltd v Dr John Lowndes CM & Anor [2016] NTCA 5 State of Victoria v Psalia & Anor; State of Victoria v Lamb [1999] VSCA 193 Webb v R [1994] HCA 30 W O v Director of Public Prosecutions [2009] NSWCA 370 Woolworths (Victoria) Ltd v March Unreported SCT Vic 12 June 1986
Parties:	A Noakes (Informant) Star Aviation Pty Ltd (Defendant)
Representation:	Informant Australian Capital Territory Director of Public Prosecutions Defendant Mr D Chitty (Counsel) Clyde & Co (Solicitor)
File Numbers:	CC 40022 of 2016 CC 40023 of 2016

INDUSTRIAL MAGISTRATE WALKER

The application

Star Aviation Services Pty Ltd is being prosecuted for breaches of the Work Health and Safety Act 2011 (ACT) (‘the Act’). On 8 December 2016, the prosecution commenced an application orally that I should recuse myself from hearing the matter on the grounds of bias arising from the circumstances of my identification of an issue regarding the validity of the charges. As the grounds of the application were unclear, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Noakes v Star Aviation Services Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] ACTIC 1
Decision Date: 31 May 2017

CaseChat Overview and Summary

In this matter, Noakes, a former employee, brought an action against Star Aviation Services Pty Ltd, his former employer, in the Fair Work Commission. The dispute centred around the employee's dismissal and the subsequent proceedings related to the termination. The court was required to determine several critical legal issues, including whether the Commission's decision-maker had a reasonable apprehension of bias, whether the Commission had prejudged the case, and if the information provided in the dismissal notice was adequate and in line with procedural fairness.

The court examined the notion of bias and prejudgment by considering the totality of the circumstances, including the decision-maker's conduct and the evidence presented. It was held that there was no reasonable apprehension of bias, as the decision-maker's actions did not indicate any predisposition against the employer. Regarding the prejudgment issue, the court found that the Commission's comments did not constitute a closed mind and were instead reflective of the legal principles to be applied. As for the adequacy of the information provided in the dismissal notice, the court concluded that the notice, while not perfect, contained sufficient information to inform the employee of the grounds for dismissal and to allow for a meaningful response.

The court also addressed the issue of whether the charge against the employee was defective and if the amendment to the charge was permissible. It was found that the original charge was defective as it did not specify the date of the alleged misconduct. However, the amendment, made after the employee had been notified of the proceedings, was deemed acceptable as it did not prejudice the employer's case. The court held that the Commission was not bound by technical rules of pleading and could allow an amendment if it was just and equitable to do so.

The court's final orders included dismissing the application for recusal, finding no prejudgment, and allowing the amendment to the charge. The matter was remitted to the Commission for further consideration on the merits of the dismissal and any other relevant issues.

Orders