Industrial Relations Commission of New South Wales in Court Session CITATION : Pacific Healthcare (Australia) Ltd v AHI Healthcare Systems Pty Limited [2001] NSWIRComm 297 APPELLANT: Pacific Healthcare (Australia) Ltd (formerly Clinical Associates of Australia Limited) Pacific Healthcare Limited (UK) PARTIES : RESPONDENT: AHI Healthcare Systems Pty Limited Michael Joseph McGrath FILE NUMBER: IRC 3031 of 2001 CORAM: Wright J President; Walton J Vice-President; Hungerford J CATCHWORDS : Appeal - Unfair contract - Application for leave to appeal - Appeal substantially limited to appeal from exercise of discretion - Principles applicable - Obligation on appellate Court in relation to such appeals - No basis demonstrated to interfere with discretionary decision - Decision open to trial judge in other respects - Leave to appeal refused - Appeal dismissed - Costs LEGISLATION CITED : Industrial Relations Act 1996 s 191 AHI Healthcare Systems v Clinical Associates of Australia [2001] NSWIRComm 38 CASES CITED : House v The King (1936) 55 CLR 499 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290 HEARING DATES: 11/19/2001 EXTEMPORE JUDGMENT DATE : 11/19/2001 APPELLANT: Mr G J Hatcher of counsel Henry Davis York, Lawyers (Mr Anthony Woods/Ms Vanessa Andersen) LEGAL REPRESENTATIVES: RESPONDENTS: Mr J N West QC and Mr A B Gotting of counsel Haywards, Solicitors (Mr Phil Hayward) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J Monday 19 November 2001 Matter No IRC 3031 of 2001 PACIFIC HEALTHCARE (AUSTRALIA) LTD (FORMERLY CLINICAL ASSOCIATES OF AUSTRALIA LIMITED) AND ANOTHER v AHI HEALTHCARE SYSTEMS PTY LIMITED AND ANOTHER Application for leave to appeal and appeal against decisions of Justice Boland given on 12 March 2001 and 20 April 2001 in Matter No IRC 908 of 2000 JUDGMENT OF THE COURT (Extempore) [2001] NSWIRComm 297 1 The substantive grounds of appeal in this matter are: (a) His Honour erred in determining that two years was an appropriate period of notice in the circumstances of the arrangement between the parties; (b) His Honour's discretion must have miscarried in arriving at such an inappropriate result; (c) His Honour failed to pay any or sufficient weight to his adverse findings in relation to the applicants' conduct in determining a fair adjustment to the parties' arrangements; (d) His Honour failed to pay any or sufficient regard to the statutory restrictions upon the quantum of compensation for unfair termination of employment; … However, the substantial point on which the appellants have argued their case for leave to appeal is (see grounds (a) and (b) above) that the trial judge's exercise of discretion miscarried in fixing the amount of compensation awarded to the respondents at first instance. 2 It is to be observed that the trial judge's judgment shows a careful consideration of the evidentiary cases presented by the parties and also of the wide-ranging and detailed submissions placed before his Honour. The appellants understandably do not take issue with the majority of his Honour's findings. They seek, however, to emphasise a number of aspects of what occurred at the trial in a way different to the approach of his Honour and in a way which we do not consider is available. For example, it is said that his Honour made a finding of misconduct on the part of the personal respondent. However, we do not accept that this is a correct view as to what his Honour in fact found. See, for example, the judgment at first instance, AHI Healthcare Systems v Clinical Associates of Australia [2001] NSWIRComm 38, at paragraphs [220] to [221]. 3 The essential difficulty facing the appellants is that the law imposes on the Full Bench in considering an attack on a judgment at first instance on this basis an obligation to apply the traditional approach as to appeals from decisions involving the exercise of a discretion. This obligation arises from the state of the common law in Australia and also from the statutory mandate in s 191 of the Industrial Relations Act 1996. See, for example, the recent judgment of a Full Bench of this Court in Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290. In the Court of Appeal judgment referred to therein, Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, that Court helpfully reminded appellate courts that the proper application of the principle permits interference with a trial judge's exercise of discretion in only the limited circumstances specified in classic statements of the principles such as House v The King (1936) 55 CLR 499. The principles are also synthesised usefully in Micallef . 4 The appellant has not demonstrated any basis for interfering with the discretionary judgment at first instance and, notwithstanding the appellant's invitation nevertheless to substitute our own views for those of his Honour, it is neither appropriate nor open at law for us to do so. 5 It is not intended to refer at any length to other matters raised by the appellants. It is sufficient to observe that they may be categorised as either challenges to what were, in substance, discretionary decisions or as to matters where his Honour's decision was reasonably open. 6 In the circumstances the appellant has not shown that leave to appeal should be granted. Leave is accordingly refused. The appeal is dismissed. 7 Unless the parties wish to submit to the contrary, it would appear appropriate that the appellant pay the costs of the appeal. 8 [After hearing counsel as to costs and the stay earlier granted, the Court made the following additional orders] 3. Appellant to pay respondents' costs of the appeal in an amount as agreed or, in the absence of agreement, as assessed. 4. Parties given leave to file within 48 hours agreed short minutes of order as to the dissolution of stay granted by consent on 14 June 2001. _________________ 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.