FEDERAL COURT OF AUSTRALIA Miller v Australian Industrial Relations Commission [2001] FCA 486 INDUSTRIAL – termination of employment - where appellant dismissed for serious misconduct and failure to follow lawful and reasonable direction – whether termination was harsh, just or unreasonable – whether a valid reason for the termination existed - nature of Full Bench of the Industrial Relations Commission's power to grant, or refuse, leave to appeal – whether a decision under s 170CE is properly described as "discretionary". Workplace Relations Act 1996 (Cth) House v The King (1936) 55 CLR 499 applied Norbis v Norbis (1986) 161 CLR 513 distinguished Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256 (CA) cited Gregory v Phillip Morris Ltd (1988) 80 ALR 455 cited George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd (1983) 2 AC 803 cited Edwards v Giudice (1999) 94 FCR 561 cited Hope v Bathurst City Council (1980) 144 CLR 1 cited The Queen v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415 cited Re Coldham; Ex parte Brideson (1989) 166 CLR 338 cited Re Coldham; Ex parte Brideson (No. 2) (1990) 170 CLR 267 cited Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132 cited The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351 cited Sammartino v Foggo (1999) 93 IR 52 cited Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231 cited Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 cited Franklins Ltd v Webb (1996) 72 IR 257 cited Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 cited Darling Island Stevedoring & Lighterage Co Pty Ltd v Jacobsen (1945) 70 CLR 635 cited Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200 followed Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231 cited Victoria v The Commonwealth (1990) 187 CLR 416 followed Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 followed Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 followed DAVID MILLER V A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND UNIVERSITY OF NEW SOUTH WALES NO. N 801 OF 2000 JUDGES: BEAUMONT ACJ, RYAN & MADGWICK JJ DATE: 4 MAY 2001 PLACE: SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 801 OF 2000 BETWEEN: DAVID MILLER APPLICANT AND: A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FIRST RESPONDENT UNIVERSITY OF NEW SOUTH WALES SECOND RESPONDENT JUDGE: BEAUMONT ACJ, RYAN & MADGWICK JJ DATE OF ORDER: 4 MAY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. That a writ of certiorari issue to the first respondent removing into this Court, and quashing, the decision of the Full Bench of the first respondent on 7 March 2000 in matter U No. 20312 of 1998, being an application by the applicant for leave to appeal against the decision of Senior Deputy President Harrison given on 29 October 1999 (Print S0551). 2. That a writ of mandamus issue to the first respondent directing it to hear and determine matter U No. 20312 of 1998 in accordance with law. 3. That the matter be remitted to the first respondent accordingly. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 801 OF 2000 BETWEEN: DAVID MILLER APPLICANT AND: A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FIRST RESPONDENT UNIVERSITY OF NEW SOUTH WALES SECOND RESPONDENT JUDGE: BEAUMONT ACJ, RYAN & MADGWICK JJ DATE: 4 MAY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: INTRODUCTION 1 This is an application by Dr David Miller for writs of certiorari and mandamus, sought in order to overturn a decision of the Full Bench of the Australian Industrial Relations Commission, consisting of Justice Boulton, Senior Deputy President Drake and Commissioner Larkin ("the Commission") (the first respondent), refusing leave to appeal from a decision of Senior Deputy President Harrison, dismissing the applicant's claim under s 170CE(1) of the Workplace Relations Act 1996 (Cth) ("the Act") for relief in connection with the termination of his employment (as Associate Professor in the School of Physics) by the University of New South Wales ("the University") (the second respondent). By s 170CE(1)(a) it is relevantly provided that an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of that termination on the ground that the termination was harsh, unjust or unreasonable. 2 The applicant was employed in the University's School of Physics for more than twenty years until his summary dismissal on 13 March 1998. 3 Pursuant to an agreement in writing dated 24 December 1981 ("the Agreement") the second respondent had engaged the applicant as a Lecturer upon the following terms: "1. The University hereby engages the employee as Lecturer in the School of Physics at the said University for the period of three years commencing on the day of 19 and terminating no later than the of 19 and the employee hereby accepts the engagement for the said period upon the terms and conditions hereinafter contained. 2. The employee in addition to performing the specific duties attaching to the position to which he/she is hereby appointed shall be required to participate actively in all the corporate interests of the University and to undertake such duties consistent with his/her position as may be assigned to him/her by the Vice-chancellor or other members of the staff of the University under whose supervision or direction his/her duties are performed. (Emphasis added) 3. The University will pay the employee as remuneration for his/her services a commencing salary at the rate of $23,373 per annum and the employee will be eligible for consideration for progression within the lecturers' range on the 7 July 1982 subject to normal progression requirements being satisfied and provided that the incremental date shall be adjusted by reason of any leave without pay taken or granted. 4. Either of the parties hereto may terminate this Agreement at any time by giving to the other one session's previous notice in writing and the employee's engagement shall terminate upon the expiration of such notice PROVIDED always that in the event of any misconduct negligence or inefficiency on the part of the appointee the University may without any such notice or payment in lieu of notice proceed to suspend dismiss or otherwise deal with the employee in accordance with the usual practices which apply in relation to academic staff at the University." 4 No other formal instrument of employment was subsequently entered into by the parties. It is common ground that the provisions of the agreement were to apply also to the applicant's subsequent appointment as Associate Professor, subject to all necessary changes. 5 In order to understand the issues in the application, it will be necessary to refer to the reasons of the Senior Deputy President, and those of the Full Bench, in some detail. the decision of the senior deputy president 6 The reasons for this decision were lengthy, but her essential reasons for dismissing the application under s 170CE for an order of reinstatement on the ground that the dismissal of the applicant was harsh, unjust or unreasonable may be summarised, as follows: (a) Summary of evidence 7 The Senior Deputy President described the evidence before her thus: · The applicant commenced employment with the second respondent in 1977 as a professional officer. He was subsequently appointed to more senior positions. At the time of his dismissal in March 1998, he was an Associate Professor, having been promoted to this position in January 1990. He was then working in the Department of Condensed Matter Physics within the School of Physics ("the School"), in the Faculty of Science and Technology ("the Faculty"). · The terms and conditions of academic staff of the second respondent were regulated, relevantly, by the Universities and Post Compulsory Academic Conditions Award 1995 ("the Award"); and by the University of New South Wales (Academic Staff) Enterprise Agreement 1997-98 ("the EBA"). · Within the School there is a position known as First Year Laboratory Director ("FYLD"), an important "job" ("the job") (although not referred to by that name in any award or the EBA) which is allocated to a member of the academic staff by the Head of School (Professor Oitmaa). Students enrolled in courses requiring them to spend time in the First Year Laboratory ("FYL") come not only from the Faculty but also from other Faculties. Much of the School's budget reflects "earnings" for providing this teaching to students of other faculties. · Over the previous twenty years, the job has been performed by one particular member of the academic staff, but, by 1997, Professor Oitmaa had formed the view that it was time for a change in the way the job was done and the FYL operated. In February 1997, Professor Oitmaa asked the applicant whether he would be interested in being FYLD, as the position was becoming vacant later in the year, when the incumbent would move to another position. The applicant declined. · In August 1997, Professor Oitmaa asked any member of staff interested in taking on the position of FYLD to contact him. There were no volunteers. · Professor Oitmaa then decided that the applicant was the best person for the job, for the following reasons: his experience; his stated interest in teaching and curriculum development; the fact that he had not undertaken significant administrative duties since 1992; he had only supervised one PhD student; and he did not have a research output sufficient to prevent him undertaking the job. · In September 1997, Professor Oitmaa wrote to the applicant asking him to take on the position of FYLD from 1 December 1997, stating that no one had volunteered and that the job "needs to be done", and giving, in essence, the reasons mentioned above why the applicant had been approached. · The applicant responded in late September 1997, stating that the FYLD would have little, if any, time for research and that he had already filled two positions which had taken research time – Second Year Laboratory Director (1982 – 88) and Post-Graduate Director (1989 – 1992). · The applicant and Professor Oitmaa met later in September 1997. The applicant expressed his reasons for not wishing to undertake the job. Professor Oitmaa offered to appoint additional staff to take on some aspects of the job. This offer was repeated by Professor Oitmaa in a memorandum to the applicant dated 30 September 1997, in which Professor Oitmaa also expressed his belief that, as FYLD, the applicant would still have the equivalent of two days per week for research. · By memorandum dated 29 October 1997, the applicant informed Professor Oitmaa that he declined to accept the job. · Professor Oitmaa replied by memorandum to the applicant dated 5 November 1997, indicating that the applicant's conduct constituted a "clear refusal to accept a legitimate assignment of teaching and administrative duties …". · By letter dated 10 November 1997, the University's Vice-Chancellor wrote to the applicant in this connection and referred to cl 14.2(b) of the EBA. Clause 14.2 deals with disciplinary action for misconduct/serious misconduct. By cl 14.2(b), the Vice-Chancellor is to consider any such allegation and, if he/she believes it warrants further investigation, the Vice-Chancellor shall notify the academic and require a written response. The applicant was required to respond to the allegation that, on at least four separate occasions and without reasonable excuse, he refused to carry out the lawfully given instructions of his supervisor, Professor Oitmaa, to undertake the responsibility of FYLD. · In his written response dated 26 November 1997, the applicant denied the allegation on several grounds, including his claim that the instruction was unreasonable, unjust and oppressive, as it was effectively a demotion, because the job's responsibilities were inconsistent with the Position Classification Standards ("PCS") in the EBA, and involved lower level administrative duties. · The Vice-Chancellor replied by letter dated 28 November 1997, informing the applicant that the matter would be referred under cl 14.2(f) to a Misconduct Investigation Committee ("MIC") in accordance with the terms of reference in cl 14.3.2, that is, to report on the facts and on any mitigating circumstances. · In its report dated 23 February 1998, the MIC noted that there was a real issue about whether the allegation, in the light of the alleged facts and circumstances, might give rise to a finding of misconduct; that the duties of FYLD were extensive and lent credence to the claim that there would be insufficient time left for an average of two days per week for research; that the previous FYLD had been a tutor, then a lecturer, and the position had not before been filled by an Associate Professor; and that there were mitigating circumstances which deserved consideration. · Upon receipt of the report, by letter dated 4 March 1998, the Vice-Chancellor notified the applicant of a determination that the applicant had been found guilty of serious misconduct, and that, although disciplinary action could be taken, the Vice-Chancellor had decided to address two of the applicant's concerns and to give the applicant a final opportunity to accept the job; but that, if not accepted, the Vice-Chancellor would proceed to disciplinary and other action. With respect to the first area of concern (research time) the Vice-Chancellor said that Professor Oitmaa was confident that the applicant would have two days per week for this, averaged over the academic year and that the role of FYLD would, in the case of the applicant, be for a term of three years maximum. Secondly, the job did not involve a demotion: it was not a full-time academic position, but rather a component which made up a full-time academic position. The letter continued: "I understand that the importance of the role of First Year Laboratory Director to the School of Physics is not at issue. Rather your concerns about taking on the role are based on your observations of how the previous incumbent performed the role. Professor Oitmaa does not envisage a similar role for you as First Year Laboratory Director. In his memo to you of 10 September 1997 Professor Oitmaa indicated that he thought you had both the capacity and ability necessary to undertake the role of First Year Laboratory Director. He says in his memo, (referred to at page 3 of the Committee's report): 'I am approaching you for a number of reasons. Firstly I am convinced of the essential nature of the laboratory program and the pivotal role it must continue to play in educating both physics majors and servicing students. Therefore it is essential that the laboratory be overseen by someone with sound educational views and a commitment to quality teaching. Secondly, it requires a capacity and willingness to work hard and you have demonstrated these qualities over the years. Finally, it needs, I believe, someone with an experimental approach to physics. I have given serious consideration to all of the School's current academic staff and I believe you are the best person for the position. Professor Oitmaa went on in his memo to describe the role envisaged and said that (at page 3 of the Committee's report), '… the laboratory had been drifting for the last few years and some urgent revitalization is needed.' The exact duties of the role and the level of support staff assigned to assist the Director should be discussed and clarified with Professor Oitmaa and Professor Sutherland. I have instructed Professor Oitmaa that once you have accepted the role of First Year Laboratory Director that he and Professor Sutherland should meet with you to discuss the two issues I have referred to above, to clearly define the expectations of all parties in you taking on the role of First Year Laboratory Director over the next three years. I have also discussed with Professor Oitmaa and the Dean my view that the Dean should have an ongoing role to ensure that the issues referred to in this letter are monitored during the period that you undertake the role of First Year Laboratory Director. You should however be aware that the discussions will only commence on the basis that you agree to accept the responsibility of First Year Laboratory Director. The role is an academic function which is able to be performed by an Associate professor and which you have been properly directed to take up. You will need to respond to me in writing by the close of business Monday 9 March 1998 indicating, without qualification, your acceptance of the role. If you fail to accept the role within the time frame indicated, I will proceed to take disciplinary action against you and consider the options available to me under the UNSW (Academic Staff) Enterprise Agreement 1997-98, including demotion or termination of your employment at this University." · The applicant responded by letter dated 9 March 1998, disputing that he was guilty of serious misconduct, reiterating his earlier reasons. On 12 March, the applicant indicated that he would not accept the role of FYLD. · By letter dated 13 March 1998, the Vice-Chancellor summarily dismissed the applicant for his refusal to obey the Head of School's instructions. (b) Was the termination of employment harsh, unjust or unreasonable within s 170CG(3)? 8 The Senior Deputy President noted that the Commission was obliged, by s 170CA(2), to ensure "a fair go all round". 9 The Senior Deputy President further noted that s 170CG(3) provided that in determining this, regard must be had to: "(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and (b) whether the employee was notified of that reason; and (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) if the termination related to unsatisfactory performance by the employee – whether the employee had been warned about that unsatisfactory performance before the termination; and (e) any other matters that the Commission considers relevant." 10 Turning to s 170CG(3)(a), the Senior Deputy President, noting that the relevant enquiry relates to the applicant's conduct and possibly the second respondent's operational requirements, addressed first the question whether the dismissal was within the meaning of "serious misconduct" under the Award and the EBA. In this connection, reference was made to the applicant's contract of employment as follows: ¨ (As has been seen above) upon the applicant's appointment in 1981 as a lecturer (tenurable), a written agreement was entered into. The applicant was there required, "in addition to performing the specific duties attaching to the [appointed] position", to "participate actively" in the second respondent's corporate interests, and to "undertake such duties consistent with his position as may be assigned to him …". ¨ No further formal agreement was entered into when the applicant was appointed Senior Lecturer (1 July 1988) and Associate Professor (1 January 1990), but the applicant contended, and the second respondent accepted, that in accordance with the earlier agreement, the second respondent could not require an academic to undertake duties inconsistent with his or her position. The second respondent, however, contended (and the applicant denied) that the job of FYLD was "consistent with" the position of Associate Professor. 11 Turning next to the EBA, the Senior Deputy President noted that one of its Schedules, in prescribing Position Classification Standards ("PCS"), stated that – "The Position Classification Standards (PCS's) describe the broad categories of responsibilities associated with academic staff at different levels. The standards are not exhaustive of all tasks in academic employment, which is by its nature multi-skilled and involves an overlap of duties between levels. All levels of academic staff can expect to make a contribution to a diversity of functions within the University. Such functions include teaching, research, participation in professional activities and participation in the academic planning and the governance of the University. The balance of the functions will vary according to level and position over time." 12 The Schedule describes Levels A (Associate lecturer) through to E (Professor). Each Level stipulates a "General Standard", "Specific Duties" and a "Skill Base". 13 (The applicant was a Level D academic. The PCS was as follows: "Level D (ASSOCIATE PROFESSOR) General standard A Level D academic is expected to make a significant contribution to all activities of the organisational unit or interdisciplinary area and play a significant role within their profession or discipline. Academics at this level may be appointed in recognition of distinction in their disciplinary area. Specific Duties Specific duties required of a Level D academic may include: · The conduct of tutorials, practical classes, demonstrations, workshops, student field excursions, clinical sessions and studio sessions. · The development of and responsibility for curriculum/programs of study. · Course co-ordination. · The preparation and delivery of lectures and seminars. · Supervision of major honours or postgraduate research projects. · Supervision of the program of study of honours students and of postgraduate students engaged in course work. · The conduct of research, including, where appropriate, leadership of a large research team. · Significant contribution to the profession, and/or discipline. · High level administrative functions. · Consultation with students. · Marking and assessment. · Attendance at departmental and faculty meetings. Skill Base A Level D academic will normally have the same skill base as a Level C academic [i.e. Senior Lecturer]. In addition there is a requirement for academic excellence which may be evidenced by an outstanding contribution to teaching and/or research and/or the profession." 14 The Senior Deputy President said that this statement was not exhaustive, and did not prohibit an academic undertaking other duties and went on to state that there was – "… no reason why [the applicant] could not lawfully be required to perform duties associated with the job of FYLD even if some of the duties that make up that job may be akin to those in, for example, the list of specific duties in Level B". 15 (Level B PCS is as follows: "LEVEL B (LECTURER) General Standard A Level B academic is expected to make contributions to the teaching effort of the institution and to carry out activities to maintain and develop his/her scholarly, research and/or professional activities relevant to the profession or discipline. Specific Duties Specific duties required of a Level B academic may include: · The conduct of tutorials, practical classes, demonstrations, workshops, student field excursions, clinical sessions and studio sessions. · Initiation and development of subject material. · Acting as subject co-ordinators. · The preparation and delivery of lectures or seminars. · Supervision of the program of study of honours students or of postgraduate students engaged in course work. · Supervision of major honours or postgraduate research projects. · The conduct of research. · Involvement in professional activity. · Development of course material with appropriate advice from and support of more senior staff. · Marking and assessment. · Consultation with students. · A range of administrative functions the majority of which are connected with the subjects in which the academic teaches. · Attendance at departmental and/or faculty meetings and/or membership of a number of committees. Skill Base A Level B academic shall have qualifications and/or experience recognised by the institution as appropriate for the relevant discipline area. In many cases a position at this level will require a doctoral or masters qualification of equivalent accreditation and standing. In determining experience relative to qualifications, regard is had to teaching experience, experience in research, experience outside tertiary education, creative achievement, professional contributions and/or to technical achievement.") 16 The Senior Deputy President said: "[97] Referring specifically to Level D the specific duties do not provide an exhaustive list of duties of an academic at this level. Nor should they be read as excluding any other specific duty that may be identified in another level. They are not legislation and an approach to them akin to statutory interpretation is inappropriate. If however it was necessary I would find that based on the evidence about what the duties of FYLD were likely to include, and in particular the evidence of Professors Sutherland and Oitmaa the job of FYLD would be likely to involve input into the development and responsibility for curriculum courses and subjects, high level administrative functions and an input into marking and assessment." (Emphasis added) 17 The Senior Deputy President went on to conclude that it was reasonable to have required the applicant to have undertaken the job of FYLD; that it was unreasonable of the applicant to have refused to do so; that the second respondent had a valid reason to dismiss him; and that the second respondent "did all that could reasonably be expected to accommodate [the applicant's] concerns about ensuring he would have adequate time for research". the full bench decision 18 As mentioned, the applicant sought, but was refused, the leave of a Full Bench to appeal against the Senior Deputy President's decision. The leave was sought pursuant to s 45(1) of the Act, which provides that, subject to the Act, an appeal lies to a Full Bench, with its leave, against the decisions of the Commission there specified. 19 By s 170JF(2), it is provided that an appeal to a Full Bench may be made only on the grounds that the Commission was in error in deciding to make the order. 20 The reasons of the Full Bench (Justice Boulton, Senior Deputy President Drake and Commissioner Larkin) were essentially as follows: · The provisions of s 45(2) (that leave shall be granted if the Full Bench is of the opinion that it is in the public interest that, given the importance of the matter, leave should be granted) provide a further obligatory basis for the granting of leave, and do not replace the conventional considerations. In relation to an appeal against the exercise of a discretionary power, the principles to be applied are broadly those in House v The King (1936) 55 CLR 499 at 504 – 505 and Norbis v Norbis (1986) 161 CLR 513 at 518 (the passages cited are discussed below). · In deciding whether to grant leave, it is necessary to consider whether any error was made in the exercise of the Senior Deputy President's discretion, including any error of law or fact, or in the application of principle, which is sufficiently fundamental in character to lead to the conclusion that the decision at first instance was not reasonably open. · The determination here of the application under s 170CE was "discretionary". · The decision was not attended with sufficient doubt to warrant its reconsideration by an appellate bench, and no substantial injustice would result if leave were to be refused, for the following reasons:- v Having regard to "the plain terms" of the applicant's contract of employment, there was little substance in the challenge to the finding that the direction to the applicant to assume the duties of FYLD was lawful. The applicant's contract of employment required him to "undertake such duties consistent with his position as may be assigned to him". There was extensive evidence as to the duties of the FYLD and as to whether they were of such a nature as would be required of an Associate Professor. The introductory words of the PCS clarify that the PCS "describe the broad categories of responsibilities associated with academic staff at different levels … [and] are not exhaustive of all tasks in academic employment, which is by its nature multi-skilled and involves an overlap of duties between levels". v There was "ample" evidence to justify the finding that the direction given to the applicant was reasonable. v In considering whether there was "serious misconduct" in the common law sense (as referred to in s 170CM and reg 30CA – see below), the evidence was that the applicant repeatedly refused to accept a lawful and reasonable direction: it was not demonstrated that the duties of FYLD were such as could not be assigned to the applicant consistently with his contract of employment. 21 (By s 170CM(1)(c) "serious misconduct" is defined as "misconduct that is of such a nature that it would be unreasonable to require the employer to continue the employment". 22 Regulation 30CA provides: "(1) For paragraph 170CM(1)(c) of the Act, serious misconduct includes: (a) wilful, or deliberate, behaviour by an employee that is inconsistent with the continuation of the contract of employment; and (b) conduct that causes imminent, and serious, risk to: (i) the health, or safety, of a person; or (ii) the reputation, viability or profitability of the employer's business. (2) For subregulation (1), conduct that is serious misconduct includes: (a) the employee, in the course of the employee's employment, engaging in: (i) theft; or (iii) fraud; or (iv) assault; or (b) the employee being intoxicated at work; or (c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment. (3) Subregulation (2) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable. …" v There was evidence regarding the changed role of FYLD as envisaged by the Head of School which supported the decision to assign the duties to a higher level academic. v The finding at first instance, that the applicant's refusal to comply with his employer's direction provided the basis for disciplinary action for serious misconduct, was "reasonably open … and [ ] appropriate"; and the issues to be considered under s 170CE(1) were "relatively straightforward". THE APPLICANT'S CLAIM FOR PREROGATIVE RELIEF 23 On behalf of the applicant, it is submitted that the claim for prerogative relief should be considered in the following context: · The awards and industrial instruments located academic positions in a hierarchy of salary rates, which reflected qualifications and experience, duties and responsibilities, from lecturer to senior lecturer, to associate professor, to professor. To be eligible for promotion to professor, the applicant had to continue to perform at a high level of academic and administrative competence. Whilst there was no detailed statement of duties for the various academic positions, the second respondent promulgated General Conditions of Appointment which differentiated the positions of lecturer, senior lecturer, associate professor and professor, by reference to general standards, specific duties and skill base. · The applicant's original contract of employment made in December 1981 dealing with his position as lecturer in the School of Physics, required him "in addition to performing the specific duties attaching to the position [then] of lecturer [later of Associate Professor] to which he is … appointed … and to undertake such duties consistent with his position as may be assigned to him …". (Emphasis added). He was required to devote the whole of his working time to his office of Associate Professor. · For more than twenty-five years, the position of FYLD had been occupied by a member of the tutorial staff who later became a lecturer. The position of FYLD had been occupied until 1997 by staff who were either tutors or appointed as lecturers. No occupant of the position until that time held PhD qualifications, whereas the applicant had been awarded a PhD in 1973. · When, in September 1997, the applicant was directed to take up the position of FYLD, he declined, on the grounds (relevantly) that the qualifications for, and duties of, the position were inferior to those of the position of Associate Professor; and that, by virtue of the provisions of his employment contract, he could not be so required. 24 Given that context, as disclosed by the incontrovertible evidence, the applicant's case for prerogative relief is propounded on the following basis: q The central issue for the Senior Deputy President was the terms of the employment contract, and whether, in the context of the application of s 170CG(3), the applicant could be required to perform the duties of FYLD. q Contrary to the opinion expressed by the Full Bench, in exercising its arbitral power under s 170CG, the Commission was not making a "discretionary" decision. Reference is then made to Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256 (CA); and to Gregory v Phillip Morris Ltd (1988) 80 ALR 455 per Wilcox and Ryan JJ at 475 – 477 as follows: · Beneficial Finance was an appeal from a decision that a contract was "unjust" for the purposes of the Contracts Review Act 1980 (NSW). · Meagher JA, who wrote the leading judgment, distinguished between the primary Judge's "finding of jurisdiction under the Act" (i.e. a finding that the contract was, within the meaning of the statute "unjust") on the one hand, and, on the other, consideration of what relief, if any, should be granted, which Meagher JA described as "the exercise of discretion" (at 279). 25 Kirby P said (at 261): "I do not believe that a determination that a contract is 'unjust' is properly classified as discretionary in character. It is that quality which must be found from all of the relevant facts, which gives rise to the jurisdiction of the court of trial to provide relief under the Act. The determination of the question is therefore the application to the facts found of a legal criterion. It is not the exercise of a judicial discretion, within the ordinary meaning of that term, any more than a decision that a testator has not made adequate provision for the maintenance of a qualified member of the family is a decision discretionary in character." 26 Kirby P went on to say (at 262 – 263): "Even if the decision that the contracts here in question were 'unjust' is not discretionary in character there are many reasons for the exercise of care in the appellate review of the decision reached by the trial judge concerning the application of the Act. Most of these have already been mentioned. They include the long trial and abundant evidence; the importance of evaluating the knowledge and capacities of the several witnesses; and the assessment of the quality of their actions. This Court has said on a number of occasions, including recently, that the very open-ended and evaluative nature of the statutory criterion ('unjust') imports a reason for restraint in the conduct of appellate review: see Idameneo No 9 Pty Ltd v Bandeski [1991] ASC ¶56-047. In part this restraint derives from the proper acknowledgment of the advantages which the trial judge has, mentioned above. In part, it derives from a modest appreciation of the fact that opinions of what constitutes injustice will vary from one judicial decision-maker to another. So long as there is an adequate basis for the opinion to be reached, conscientiously and honestly in a particular case, the appellate court should approach with caution the substitution of its opinion for that of the trial judge." 27 Samuels JA said (at 270): "As I read the Act the Court, having found what the circumstances were, must then 'find' whether or not the contract in those circumstances was unjust. In my view, in the present case, granted the learned judge's circumstantial findings, the inference, which is what it is, that the contract to which those circumstances related was unjust, is beyond challenge. I do not consider that that conclusion either constitutes the exercise of a judicial discretion or should be regarded as if it did. I adhere to what I said on this topic in Antonovic v Volker (1986) 7 NSWLR 151 at 154-155 in a judgment in which Kirby P agreed. To my mind the finding that a contract is unjust is no more discretionary in character than a finding that an act or omission was negligent, a conclusion about which different minds may also take different views. But the fact that it may be difficult to determine a factual conclusion does not mean that it is to be perceived as inhabiting an area in which the fullest rein is to be given to the predilections of individual judges without the wholesome restraint of uniformity which the attentions of an appellate court is designed to provide." q Antonovic v Volker and the decision of the House of Lords in George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd (1983) 2 AC 803 were considered by Wilcox and Ryan JJ in Phillip Morris, above (at 477): "In the present case the question for the court is whether the dismissal of the appellant was 'harsh, unjust or unreasonable'. These words, as much as those considered in George Mitchell and in Antonovic, require a process of judicial evaluation of proved facts. But, for the reasons stated by Samuels JA, we see no merit in conferring upon that evaluation a special immunity from appellate review. Of course, there will be cases in which the trial judge's assessment of the credit and personality of a party or of a witness has played a major role in his or her ultimate evaluation of reasonableness. Such cases stand apart. As in any other case which depends upon an assessment of a witness, an appellate court will be slow to reverse the conclusion of the trial judge: see Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53; 59 ALJR 842. But where the final decision depends upon the court's evaluation of uncontroverted facts, there appears to be no reason to decline to apply the general principles discussed in Warren v Coombes (1979) 142 CLR 531; 23 ALR 405. The better view, in our opinion, is that the principles applying to the review of discretionary judgments have no application to this court's consideration of whether the learned judge at first instance was correct in holding that the dismissal of the appellant was not harsh, unjust or unreasonable." q A determination of the terms of the employment contract was required in order for the Commission to comply with the requirements of s 170CG(3)(a) (providing, it will be recalled, that the Commission must have regard to whether there was a "valid" reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service). q Reference is made on behalf of the applicant to Edwards v Giudice (1999) 94 FCR 561. It was there held by Moore and Marshall JJ (Finkelstein J dissenting) that where relief is sought under s 170CE, and the reason for termination is based on the misconduct of the employee, the Commission must, by virtue of the provisions of s 170CG(3)(a), determine whether such conduct occurred. If in issue, the Commission must determine whether the alleged conduct took place and what it involved. The absence of such a determination can indicate error, as the Commission "had a [legal] duty to give reasons which addressed material issues of fact and law" (per Moore J at 566). q An investigation conducted to establish the terms of an employment contract involves questions of fact; and a finding whether a particular event was within the terms of the contract of employment determines a question of law where it involves the application of a legal standard to primary facts. Reference is made to Hope v Bathurst City Council (1980) 144 CLR 1 where Mason J said (at 7): "[T]he question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law." q There was no room for the Commission to exercise a discretion in undertaking this task. q Although the Commission could not exercise judicial power so as to determine conclusively the terms of the employment contract (reference is made to The Queen v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415), the Commission nevertheless had to consider this matter for itself. Yet the Full Bench proceeded upon the basis that the decision under appeal was discretionary, and a reading of its reasons as a whole indicates that the Full Bench addressed the matter by asking merely whether the first instance decision was "reasonably open" on the evidence. q However, the relevant decision was not discretionary. Accordingly, since the Full Bench applied the wrong test, it failed to exercise its jurisdiction on the appeal. Reference is made to Re Coldham; Ex parte Brideson (1989) 166 CLR 338; Re Coldham; Ex parte Brideson (No. 2) (1990) 170 CLR 267; Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132; The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351; Sammartino v Foggo (1999) 93 IR 52; Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231 as follows: q In Brideson (No 1), Wilson, Dean and Gaudron JJ said (at 347): "A legislative direction to decide does not, as a matter of ordinary statutory construction, import a discretion to give effect to that which, having regard to the scope and purposes of the legislation, is in the opinion of the decision-maker desirable. A discretion of that nature will be implied only if the context … so necessitates as, e.g., where the context provides no positive indication of the considerations by reference to which a decision is to be made …. The context [here] does not permit [that the regulation] … be treated as the source of, a general discretion to do that which, in the opinion of the Registrar, is industrially desirable." q In Brideson (No 2), Deane, Gaudron and McHugh JJ said (at 275): "In determining whether leave to appeal [from a Registrar's decision] should be granted [by the Commission], it would have been appropriate [here] for the Commission to refuse leave unless it thought that there was an arguable case that the Registrar had acted upon a wrong principle, given weight to irrelevant matters, failed to give sufficient weight to relevant matters or made a mistake as to the facts or that the decision was plainly unreasonable or unjust. But once leave was granted, the Commission was bound to make its own decision on the evidence before it…." q In Public Service Association, Dawson and Gaudron JJ said (at 161): "An appeal under s 105 … is an appeal from an administrative decision …[and] in the determination [of the appeal] the Commission is required to make 'such order as it thinks fit'." 28 Their Honours went on to say (at 162): "The full purport of the decision in Brideson [No. 2] was that s. 88f created an appeal requiring the appellate tribunal to decide for itself what should be the result in a particular case. And of more particular relevance to the present matter, it was said in that case that it was not correct to say, as has been said in Re Federated Miscellaneous Workers Union of Australia, that 'the principles relating to the function of a tribunal sitting on appeal from the exercise of a discretion should be applied' in an appeal under that section. In Brideson [No. 2] it was also said that it would have been appropriate, in determining whether leave to appeal should be granted under s. 88f(1) of the Conciliation and Arbitration Act, to refuse leave unless there was an arguable case that the Registrar's decision involved an error of the type identified in House [House v The King (1936) 55 CLR 499]. What is required for the grant of leave to appeal necessarily depends upon the nature of the appeal in question. If the appeal is one, as here and as in Brideson [No. 2], requiring the appellate tribunal to decide for itself what should be done, then an applicant may seek leave to appeal from a discretionary decision on the basis that, even if there be no discernible error of the type identified in House, a different decision should be reached. If leave is sought on that basis, it is open to the tribunal to rule that, in the circumstances, it will not grant leave merely to substitute its decision for the decision under appeal. The practical consequence of a ruling to that effect is to condition the grant of leave to appeal on the existence of an arguable case that the discretion has miscarried. But the tribunal must consider and determine the issue raised, namely, whether leave should be granted on the basis sought. Brideson [No. 2] did not decide otherwise." q In Sammartino, Moore, Marshall and Finkelstein JJ said (at 54): "On an appeal from such a decision, if leave to appeal is given, the Commission is plainly not confined, in its consideration of the case, by principles that are found in cases such as House v The King. In dealing with the appeal, the Commission is under a duty to consider all of the proven facts and those facts that have been admitted, and any inferences to be drawn from those facts, to arrive at its decision. It is also under a duty to determine the content of any point of law upon which its decision might depend. If, in undertaking any of these tasks, it finds that the Commissioner has made an error of law or an error of fact, it can exercise its powers under s 45(7). It will find an error of law or an error of fact if the Commission reaches a different conclusion on the facts or on the law than that arrived at by the primary decisionmaker. Further, what must be shown in order to succeed on an appeal will plainly have a bearing on whether leave should be granted." q In considering whether there was a "valid reason" for termination related to the applicant's conduct, as stipulated by s 170CG(3)(a), the Commission was engaged upon the task of determining not only the terms of the employment contract, but also whether there had been misconduct, serious or otherwise, on the part of the applicant. In this connection, the Commission was bound to consider and apply the relevant common law principles, construe the material disciplinary provisions of the EBA with respect to misconduct, and have regard to the provisions of s 170CM(1)(c) and reg 30CA with respect to serious misconduct. In each of these tasks, the Full Bench was required to consider the matter for itself. It was not open to the Full Bench, in considering the application for leave to appeal, to dispose of the matter on the basis that these issues were "discretionary" in nature and so dealt with at first instance, leaving only for the Full Bench the question whether the decision to dismiss the applicant's application was "reasonably open" to the Senior Deputy President on the evidence. q Further, the Full Bench effectively failed to exercise its jurisdiction when it required the applicant to bear the onus of demonstrating that the duties of FYLD were such as not to be capable of assignment to him consistently with his employment contract; yet it was the second respondent's case that the applicant had been guilty of misconduct, serious or otherwise, an issue on which the second respondent always bore the onus. Reference is made to Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 and to Franklins Ltd v Webb (1996) 72 IR 257 as follows: q In Crestell, the Full Bench of the Industrial Relations Commission of New South Wales (Cahill VP, Hill J and French C), citing Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83 – 84, said (at 458): "[W]hile the burden of proof to establish an unfair dismissal ordinarily rests on the applicant, in a case where the dismissal arises from [alleged] misconduct the onus of proof shifts to the employer to establish that misconduct." q In Franklins, the NSW Industrial Relations Commission (Hungerford and Peterson JJ, Murphy C) also (at 260) cited Hungerford J in Gartrell White in describing the position upon summary dismissal of an employee where the employer alleges the existence of cause justifying termination. Hungerford J said (at 83): "[W]here an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer." 29 In this connection, Hungerford J (at 83) referred to "conceptual support" to be found in the following observations of Dixon J in Darling Island Stevedoring & Lighterage Co Pty Ltd v Jacobsen (1945) 70 CLR 635 (at 643): "[I]t is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved." 30 Hungerford J went on to say: "The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it." CONCLUSIONS ON THE APPLICATION FOR PREROGATIVE RELIEF 31 In our opinion, there is substantial force in the applicant's arguments. 32 The nature of the Full Bench's power to grant, or refuse, leave to appeal was explained by Spender, Moore and Branson JJ in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200 (at 220): "It can be seen from s 45(1) that an appeal lies to a Full Bench only with the leave of the Full Bench. Section 45(1) confers a power on the Full Bench to grant leave and s 45(2) requires a Full Bench to grant leave if it forms the opinion that the matter is of such importance that in the public interest leave should be granted. The formation of that opinion dictates that leave be granted. Section 45(2) does not prescribe the test for the grant of leave. It requires the Full Bench to grant leave, if the Full Bench forms the requisite opinion. The conventional considerations for the granting of leave, including whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Bench, or whether substantial injustice would result if leave were refused, supposing the decision to be wrong, are not replaced by a different test: rather, s 45(2) provides a further, and obligatory, basis for the grant of leave." 33 In the present case, it is not necessary to consider whether, within the terms of s 45(2), any important public interest considerations existed here. Before us, this matter proceeded, correctly, we think, upon the basis that the Full Bench had to address only the conventional considerations for the grant of leave, and in particular, whether the decision was attended with sufficient doubt to warrant its reconsideration; or whether substantial injustice would result, if leave were refused. 34 On behalf of the second respondent, it is submitted that the Full Bench was correct in rejecting the applicant's contention that questions which were conditions precedent to a jurisdiction arose for determination by the Senior Deputy President here. That submission by the second respondent arose in this context. The applicant had argued before the Full Bench that a finding of fact under s 170CG(3)(a) (whether there was a "valid reason") was jurisdictional, that is, in the nature of a condition precedent. The applicant relied here upon the reasoning in Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231. It was there held by Branson and Marshall JJ that the jurisdictional fact which conditions the exercise of the powers of the Commission under s 170CE(1) is that the applicant is "an employee whose employment has been terminated by the employer" within the provision; so that, on an appeal, the Full Bench would be concerned with whether the Commissioner had reached the right conclusion as to whether the applicant was such an employee; and thus it would not be concerned simply with whether the Commissioner's conclusion was reasonably open. 35 The second respondent submits that a finding of a "valid" reason is not jurisdictional and, accordingly, it argues, no occasion arises for the grant of prerogative relief. 36 It is further submitted for the second respondent that the decision of the Senior Deputy President was, in truth, "discretionary"; and that the Full Bench was not required to consider for itself each of the matters which could have a bearing on whether there was a valid reason for termination for the purposes of s 170CG(3)(a). It is said that, even on an appeal (assuming leave to have been granted), the Full Bench could exercise its powers under s 45(7) only if there were found to be an error on the part of the primary decision-maker; and the Full Bench found no error in considering whether to grant or refuse leave to appeal. Emphasis is placed, in the second respondent's argument, upon the circumstances that s 170CG(3) mandates regard being had not only to certain specified considerations, but, in addition to "any other matters [she] considers relevant"; so that, the submission goes, there is no causal connection between a finding that there was no valid reason for the termination (let alone as to the particular, operative terms of the contract) on the one hand, and a decision that the termination was harsh (etc), on the other. 37 The second respondent further contends that both the primary decision-maker's decision under s 170CG(3) (as to whether the termination was harsh (etc)) and a decision under s 170CE (as to remedy) can properly be described as "discretionary". Reference is made on behalf of the second respondent to Norbis, as follows: 38 In Norbis, it was held that when the Family Court assesses the entitlement to property of the parties to a marriage under s 79 of the Family Law Act 1975 (Cth), the nature of the issues that arise is such that there is little or no scope for giving guidance in the form of binding rules of law. 39 Mason and Deane JJ said (at 518 – 519): "'Discretion' signifies a number of different legal concepts: see, e.g., the discussion in Pattenden, The Judge, Discretion, and the Criminal Trial (1982), pp. 3-10. Here the order is discretionary because it depends on the application of a very general standard – what is 'just and equitable' – which calls for an overall assessment in the light of the factors mentioned in s. 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends. The principles enunciated in House v. The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal." 40 In our opinion, the family law background and the very broad language of s 79 ("just and equitable") in that connection distinguish the context in Norbis for present purposes. Here the inquiry is necessarily more focused. As Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ, in considering the constitutional validity of the Industrial Relations Act in the light of the International Labour Organisation Conventions, in Victoria v The Commonwealth (1990) 187 CLR 416 said (at 517): "[T]he inclusion of the 'harsh, unjust or unreasonable' test is an additional ground of unlawful termination that goes beyond the requirement for the reason for termination to be valid. The terms 'harsh, unjust or unreasonable' are not merely a synonym for 'valid'." 41 The second respondent also refers to, and Norbis was followed in, Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348, a recent High Court decision arising in the following context. By s 170MW of the Act, the Commission is empowered, by order, to terminate a bargaining period, in certain circumstances, namely, that industrial action being taken to support or advance claims in respect of a proposed agreement is threatening (a) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or (b) to cause significant damage to the Australian economy or an important part of it. The background facts were that industrial action at the applicant's Hunter Valley No 1 Mine during a bargaining period was taken by the Union and its members in support of claims for a proposed agreement. Boulton J made a termination order under s 170MW, expressing his satisfaction that threats of the kind stated in (a) and (b) above, existed. A Full Bench, acting under s 45(1)(b) granted the applicant leave to appeal, allowed the appeal and set aside the orders of Boulton J. The Union then sought prerogative relief from the Full Federal Court which concluded that the Full Bench had fallen into jurisdictional error by proceeding upon the basis that Boulton J's decision was attended by appellable error. But an appeal from the Full Federal Court was allowed by the High Court. 42 Gleeson CJ, Gaudron and Hayne JJ held that the appeal to the Full Bench was properly described as an appeal by way of re-hearing; but that its powers under s 45(7) (to confirm, quash or vary (etc)) were exercisable only in the event of error. Their Honours said (pars 15 – 18): "[15] The provision considered in Brideson [No 2] conferred power on the Commission to take further evidence, a provision which is indicative of an appeal by way of rehearing. It also required the Commission to 'make such order as it [thought] fit'. The latter requirement indicated that the Commission's appellate powers were not constrained by the need to identify error on the part of the primary decision-maker, but, rather, that the Commission was obliged to give its own decision on the evidence before it. [16] The terms of s 45 of the Act are different from the terms of the provision considered in Brideson [No 2]. Unlike that provision, s 45 does not require a Full Bench of the Commission to 'make such order as it thinks fit'. Nor is there anything else in the terms of s 45 to suggest that the powers of a Full Bench are exercisable or, as in Brideson [No 2], are required to be exercised in the absence of error on the part of the primary decision-maker. [17] Because a Full Bench of the Commission has power under s 45(6) of the Act to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under subs (7) are exercisable only if there is error on the part of the primary decision-maker. And that is so regardless of the different decisions that may be the subject of an appeal under s 45. [18] The Full Court was in error in thinking that the nature of an appeal under s 45 differs according to the nature of the decision under appeal. However, it was correct to hold that, in the case of a discretionary decision, the exercise by a Full Bench of the Commission of its powers under s 45(7) of the Act depends on the decision at first instance being attended by appealable error. That being so, it is necessary to consider the manner in which the Full Bench determined the appeal from Boulton J. Before doing so, however, it is convenient to say something as to the concept of 'a discretionary' decision." 43 Gleeson CJ, Gaudron and Hayne JJ said (pars 19 – 21): "[19] 'Discretion' is a notion that 'signifies a number of different legal concepts'. In general terms, it refers to a decision-making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result'. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment. (Emphasis added) [20] In the present case, the decision by Boulton J to terminate the bargaining period involved, in effect, two discretionary decisions. The first was as to his satisfaction or otherwise that the industrial action being pursued posed a threat for the purposes of s 170MW(3) of the Act. Although that question had to be determined by reference to the facts and circumstances attending the industrial action taken in support of claims with respect to a certified agreement, the threat as to which his Honour had to be satisfied was one that involved a degree of subjectivity. In a broad sense, therefore, that decision can be described as a discretionary decision. And if Boulton J was satisfied that there was a threat for the purposes of s 170MW(3), that necessitated the making of a further discretionary decision as to whether the bargaining period should be terminated. [21] Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms: 'If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so'." 44 Their Honours went on to say (pars 31 – 32): "[31] There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it 'misunder[stood] the nature of [its] jurisdiction … or 'misconceive[d] its duty or [failed] to apply itself to the question which [s 45 of the Act] prescribes … or '[misunderstood] the nature of the opinion which it [was] to form'.' The Full Bench did none of those things. [32] In his reasons for decision, Giudice J proceeded on the basis that the Full Bench could intervene only if there was error on the part of Boulton J. In this his Honour was correct. Giudice J held that there was error on the part of Boulton J. If he was wrong in that view (a matter upon which it is unnecessary to express an opinion), that was an error within jurisdiction not an error as to the nature of the jurisdiction which the Full Bench was required to exercise under s 45 of the Act. Accordingly, it was not an error in respect of which relief could be granted by way of prohibition or mandamus under s 75(v) of the Constitution." 45 In our opinion, insofar as the decision of the Senior Deputy President here may be described as "discretionary", it is a "narrow" discretion in the secondary sense described in par (19) in Coal & Allied, that is to say, one requiring the decision-maker to make a particular decision if he or she forms a particular opinion or value judgment. 46 In the present case, s 170CG(3) required the Senior Deputy President not only to determine (generally) whether the termination was "harsh, unjust or unreasonable", but also, in that connection, to determine (specifically) whether there existed a valid reason for the termination related to the applicant's conduct (see s 170CG(3)(a)). In our view, this legislative scheme does not provide the considerable latitude (to borrow the language in par (19) of Coal & Alllied, above) which is available where the considerations relevant to the exercise of a statutory discretion are confined only by the subject matter and object of the legislation. 47 Further, as was held in Coal & Allied (par 21), even if the discretion is a narrow one, it could, we think, have been challenged before the Full Bench by showing some error in the Senior Deputy President's decision-making process, that is to say, by demonstrating that she has acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistaken the facts, or failed to take into account a material consideration. 48 In our opinion, when the reasons of the Full Bench are read as a whole, it appears that the Full Bench proceeded upon the basis that the question of leave, and if granted, the questions in the appeal itself, were to be addressed by a very broad approach to the evidence, and in particular by inquiring whether there was evidence before the Senior Deputy President from which a conclusion that, in assigning FYLD duties, the second respondent had acted in a reasonable way, was open to her. In approaching its task in such a generalised fashion, the Full Bench, with respect, lost sight, we think, of three material considerations that it was bound to take into account: (1) the "discretion" conferred upon the Senior Deputy President was, in truth, a narrow one (of the secondary kind previously described); (2) although there was here, technically, a "discretion", it could still be challenged for error upon the House principles, as was held in Coal & Allied (par 21); and (3) the specific requirements of s 170CG(3)(a) in the context of the particular provisions of cl 2 of the employment contract. 49 The Court must, of course, take care to distinguish between jurisdictional error and errors within jurisdiction, often a difficult matter. In this case, for instance, there are passages in the Full Bench's reasons which, standing alone, could provide ground for thinking that the substance of the matters that concern us were actually addressed. However, as we have implied, the reasons must be read as a whole. It is of significance that the Full Bench, at the outset of the explanation of its own reasoning, instructed itself generally as to its task as follows: "The appeal against the decision of the Senior Deputy President to dismiss the application made under s.170CE of the Act is brought under s.45. Subsection 170JF(2) provides that such an appeal 'may be made only on the grounds that the Commission was in error in deciding to make the order'. Under s.45(2), a Full Bench must grant leave to appeal 'if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted'. This provides a further obligatory basis for the granting of leave and does not replace the conventional considerations: see Construction, Forestry, Mining and Energy Union v. Giudice (1998) 159 ALR 1 at 20. In relation to an appeal against the exercise of a discretionary power, the principles to be applied in the determination of the appeal are broadly those which were enunciated by the High Court in House v. The King (1936) 55 CLR 499 at 504-505 (see also Norbis v. Norbis (1986) 161 CLR 513 at 518). In considering whether to grant leave to appeal in this matter, we have examined whether there was any error made in the exercise of the discretion by the Senior Deputy President. This would include an error of law or fact or in the application of principle which is sufficiently fundamental in character as might persuade a Full Bench on appeal that the decision reached at first instance was not reasonably open. In adopting this approach, we have had regard to the arguments presented by the Applicant both as to jurisdiction and discretion. We have done so even though we do not accept the Applicant's submission that the determination of the s.170CE application in this case involved other than the exercise of discretionary power. Having considered all these matters, we are not persuaded that the decision of the Senior Deputy President is attended with sufficient doubt as to warrant it being reconsidered by an appeal bench or that substantial injustice would result if leave to appeal is refused." (Emphasis added) 50 Whether error falling within the well-known categories identified in House v The King has been established, at least where the asserted error is one of law or fact, rather than the application of a broad standard, is generally not to be determined by the application of the test whether the decision on such a point was "reasonably open". Such asserted errors are generally themselves not the subject of a discretionary judgment but discrete, intermediate decisions made by the primary decision-maker along the way to the final, overall judgment which is regarded as a discretionary one. 51 The question is one of overall impression and, despite the particular phrases in the Full Bench's reasons tending in a contrary direction, it is our firm conclusion that a "reasonably open" test was applied in the consideration of the asserted errors, rather than the test of whether it was seriously arguable that the Senior Deputy President had actually been wrong. Had the latter approach been taken, the focus on the three matters we have identified in [48] above would necessarily have been different. It cannot be said that, had that occurred, the result must necessarily have been the same. 52 We are thus of the view that this error on the part of the Full Bench was jurisdictional in the sense explained in Kearsley, above; that is to say, that the Full Bench, with respect, misunderstood the nature of its jurisdiction, or the nature of the opinion which it was required to form. As Gibbs J said in Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 (at 483) the Full Bench "did not apply [itself]) to all the matters the (legislation) required [it] to consider." 53 We propose to grant the prerogative relief sought. CLAIM OF DENIAL OF NATURAL JUSTICE 54 For completeness, it should be noted here that in the applicant's written submissions, a claim was made that the applicant had been denied procedural fairness, in that, it was said, the Senior Deputy President had stated in her reasons for decision (pars 2 and 3) that a statement of evidence by Mr Bateman, the second respondent's Director of Human Resources, had been filed; but that the applicant had never seen it. However, it now appears that, in fact, Mr Bateman was not called to give evidence and no statement of his was tendered before the Senior Deputy President. We have received into evidence an affidavit from Mr Bateman stating that he did not give any evidence or provide any statement at first instance. It appears then the reference in the Senior Deputy President's reasons is an oversight. Understandably in these circumstances, the point was not developed by the applicant's counsel in oral argument before us. Moreover, the point was not raised before the Full Bench. We need not now consider it any further. ORDERS 55 Accordingly, we now make the following orders: 1. That a writ of certiorari issue to the first respondent removing into this Court, and quashing, the decision of the Full Bench of the first respondent on 7 March 2000 in matter U No. 20312 of 1998, being an application by the applicant for leave to appeal against the decision of Senior Deputy President Harrison given on 29 October 1999 (Print S0551). 2. That a writ of mandamus issue to the first respondent directing it to hear and determine matter U No. 20312 of 1998 in accordance with law. 3. That the matter be remitted to the first respondent accordingly. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 4 May 2001 Counsel for the Applicant: Mr W R Haylen QC Ms C Howell Solicitor for the Applicant: R L Whyburn & Associates Counsel for the Second Respondent: Mr R M Goot SC Mr S Prince Solicitor for the Second Respondent: Minter Ellison Date of Hearing: 28 February 2001 Date of Judgment: 4 May 2001