Noakes v Star Aviation Services Pty Ltd

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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

  1. 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…

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Details
Case
[2017] ACTIC 1
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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