Industrial Relations Commission of New South Wales in Court Session CITATION : Bell and Berg v Macquarie Bank Ltd and Another [2003] NSWIRComm 363 revised - 31/10/2003 APPELLANT Michael Charles Bell PARTIES : FIRST RESPONDENT Macquarie Bank Ltd SECOND RESPONDENT Macquarie International Capital Markets Ltd FILE NUMBER: IRC 5638 of 2002 CORAM: Walton J Vice-President; Boland J; Curtis AJ Appeal - Leave to appeal - Unfair contract - Whether s 109A of Industrial Relations Act 1996 has the effect of excluding from consideration under s106 of that Act the question of procedural fairness - Error at first instance - Leave to appeal refused - Appeal dismissed - Costs CATCHWORDS : Unfair Contract - Leave - Leave to appeal - Whether s 109A of Industrial Relations Act 1996 has the effect of excluding from consideration under s106 of that Act the question of procedural fairness - Error at first instance - Leave to appeal refused - Appeal dismissed - Costs LEGISLATION CITED : Industrial Relations Act 1996 s188 Abboud v The State of New South Wales (NSW Department of School Education) (1999) 92 IR 32 CASES CITED : Box Valley Pty Ltd v Price (2000) 97 IR 484 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 HEARING DATES: 10/23/2003 EXTEMPORE JUDGMENT DATE : 10/23/2003 APPELLANT Mr J M Ireland QC, Mr R Dalgleish of counsel Solicitor: Mr R Tassell Verekers Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr R M Goot AM SC with Mr I Neil of counsel Solicitor: Ms S Vass Abbott Tout JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WALTON J, ACTING PRESIDENT BOLAND J CURTIS AJ Thursday 23 October 2003 IRC Matter No 5638 of 2002 MICHAEL CHARLES BELL AND ANOTHER v MACQUARIE BANK LTD AND ANOTHER Application by Michael Charles Bell and Another for Leave to Appeal and Appeal Against a Decision of Justice Schmidt given on 12 September 2002 in Matter Nos IRC 6973 and 6974 of 1997 JUDGMENT EX TEMPORE [2003] NSWIRComm 363 1 Pursuant to s 188(2) of the Industrial Relations Act 1996 a party may appeal to a Full Bench of the Commission against a decision of the Commission sitting as a single member only with leave of the Full Bench. 2 The Full Bench is to grant leave if in its opinion the matter is of such importance that, in the public interest leave should be granted. 3 Factors relevant to the public interest include "whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of [the] Commission including whether the decision has widespread practical application" (Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382). 4 In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 at par [77] the Full Bench observed as to leave: [T]he central issue, which we have been asked to consider, is whether the findings of fact in relation to serious misconduct were wrong. If, as in this matter, there is a substantial basis upon which to conclude that such a contention may be made out, there emerges significant basis for the grant of leave in order to ensure the proper administration of justice (our emphasis). 5 However, in Box Valley Pty Ltd v Price (2000) 97 IR 484 the Full Bench emphasised that: [A]ppellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave. 6 It follows from the terms of s 188(2) that leave will not be granted in every case in which an error of fact or law is demonstrated. In the present case we have read Her Honour's judgment and attended carefully to the written and oral submissions of learned senior counsel for the appellants. 7 In submitting that leave should be granted the appellants relied on three principal contentions: 1. The trial judge failed to determine the arrangement that operated in respect of Mr Bell and Mr Berg for the period of their respective employments with the first respondent and thereby fell into error; 2. Her Honour wrongly held that the appellants were discredited by the fact they had tape recorded certain conversations and had selectively given their evidence where such tape recordings existed; 3. Her Honour wrongly held that in the case of Mr Berg, s 109A of the Act precluded consideration of the circumstances of his dismissal by the first respondent for the purposes of his claim under s 106 of the Act. 8 As to the first contention, even though her Honour did not set out her findings as to the specific terms of the arrangements, it is apparent from her Honour's judgment that she addressed and comprehensively dealt with the issue of whether certain alleged representations that formed the core of the appellants' claims had been made to the appellants by the first respondent. Her Honour found that the representations had not been made and that, consequently, there could have been no basis for varying any arrangement as sought by the appellants. Her Honour's findings regarding the alleged representations were reasonably open to her on the evidence. We do not consider the failure to make specific findings regarding the terms of the arrangement materially affected the merit of her Honour's conclusions. 9 As to the second contention regarding credit, we see no error in her Honour's analysis of the evidence and her consequent conclusions regarding the credit of the appellants such that it would warrant appellate intervention. 10 The third contention went to her Honour's reliance on s 109A. We consider her Honour erred in finding that a failure to provide procedural fairness "is a complaint not available to be brought under s 106". Firstly, the subject terminations in this matter pre-dated the amendment to the Act that introduced s 109A and that section cannot be understood to have retrospective operation. Secondly, we do not consider that the introduction of s 109A had the effect of excluding from any consideration under s 106 of the Act whether or not there was procedural fairness. In this respect, we regard the decision by the majority in Abboud v The State of New South Wales (NSW Department of School Education) (1999) 92 IR 32 at 49 to 51 as good law. 11 Notwithstanding the error that we have identified in relation to the application of s 109A, we consider that, in all the circumstances, it was reasonably open to her Honour to find there was no requisite unfairness in relation to the termination of Mr Berg's employment. 12 For the reasons we have expressed, these are not cases in which leave to appeal should be granted. Orders 1. Leave to appeal refused. 2. The appeal is dismissed. 13 After hearing the parties as to costs, two further orders were made: 3. The appellants shall pay the respondents' costs of the appeal in an amount as agreed or in default of agreement, as assessed. 4. The respondents shall pay the appellants' costs of the motion in relation to the respondents' application for security of costs. In that respect, we find it unnecesary to deliver any further reasons for our judgment in relation to the recovery of costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.