Industrial Relations Commission of New South Wales CITATION : Newcastle City Council and Bevan [2001] NSWIRComm 338 APPELLANT Newcastle City Council RESPONDENT Barry Bevan PARTIES : APPELLANT IN CROSS APPEAL Barry Bevan RESPONDENT IN CROSS APPEAL Newcastle City Council FILE NUMBER: IRC 5519 OF 2000 and IRC 398 of 2001 CORAM: Wright J President; Walton J Vice-President; Connor C CATCHWORDS : Leave to appeal - Appeal from decision of Commissioner in s 84 proceedings - Issue now "moot" because of agreement between the parties - Whether proceedings now appropriate vehicle to reconsider earlier Full Bench decision - Limits of decision at first instance - Misunderstanding of parties as to nature of decisions in s 84 matters - Leave to appeal refused in respect of appeal and cross appeal. LEGISLATION CITED : Industrial Relations Act 1996 s 84 s 188 CASES CITED : Australian Services Union, New South Wales Branch v Sydney Water Corporation [2001] NSWIRComm 100 Effem Foods Pty Limited t/a Uncle Ben's of Australia v Urban (1988) 81 IR 341 HEARING DATES: 02/02/2001; 02/15/2001; 03/16/2001; 12/12/2001 EXTEMPORE JUDGMENT DATE : 12/12/2001 APPELLANT Mr B G Docking of counsel Solicitors: White Barnes (Mr M J Barnes) CROSS APPELLANT Mr C J Fisher Solicitors: Fisher Cartwright Berriman LEGAL REPRESENTATIVES: RESPONDENT Mr C J Fisher Solicitors: Fisher Cartwright Berriman RESPONDENT IN THE CROSS APPEAL Mr B G Docking of counsel Solicitors: White Barnes (Mr M J Barnes) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President CONNOR Wednesday 12 December 2001 Matter No IRC 5519 of 2000 NEWCASTLE CITY COUNCIL and BARRY BEVAN Application for leave to appeal and appeal against a decision of Commissioner Redman given on 3 November, 2000 in Matter No IRC 1424 of 2000. Matter No IRC 398 of 2001 BARRY BEVAN and NEWCASTLE CITY COUNCIL Application for leave and to extend time to appeal against a decision of Commissioner Redman given on 3 November, 2000 in Matter No IRC 1424 of 2000. DECISION OF THE COMMISSION Extempore [2001] NSWIRComm 338 1 The Commission has been advised by the parties that since this appeal was heard they have compromised their differences concerning the employment of Mr Bevan. This has apparently occurred in conjunction with the settlement of other proceedings between the appellant and Mr Bevan in the Compensation Court of New South Wales. 2 Notwithstanding the situation as now advised to the Commission and indeed of which the Commission received informal advice some months ago, the parties have requested that the Full Bench deliver its decision as to the appeal brought by the appellant. 3 As the issues raised by the appeal brought by Newcastle City Council are now, in the light of the agreement between the parties, moot and any decision by the Commission in the appeal would be "academic" in that it would have no practical effect on the relations or relationship between the parties, we do not consider that this is an appropriate course. In any event, it is not consistent with the usual course traditionally adopted by the Commission in such situations: see, for example, Australian Services Union, New South Wales Branch v Sydney Water Corporation [2001] NSWIRComm 100. 4 It would in those circumstances be unlikely that the applicant for leave could satisfy the significant requirement imposed by the Industrial Relations Act 1996 for the grant of leave to appeal. Moreover, in the present proceedings the respondent in the primary appeal has, in our view, demonstrated that the Full Bench decision in Effem Foods Pty Limited t/a Uncle Ben's of Australia v Urban (1998) 81 IR 341 is arguably incorrect and should, in appropriate proceedings, be reconsidered. However, because of the considerations earlier referred to as to these proceedings, they no longer provide a suitable vehicle for that to occur. 5 Further, the submission put by the appellant to the effect that a determination of the appeal would be of general guidance to the appellant in relation to disciplinary matters and in particular those matters concerning the consumption of alcohol proceeds, in our view, on a false premise as to the industrial jurisprudence governing unfair dismissal cases. Decisions in unfair dismissal matters turn on their own facts and circumstances. The decision at first instance represents no exception to that approach - the decision deriving essentially from a conclusion that the dismissal was harsh, having regard to a variety of circumstances relating to Mr Bevan. That submission also proceeds upon a misconception of the decision at first instance in so far as it is contended that the decision condoned the consumption of alcohol during the course of work. 6 We consider, therefore, that leave to appeal should be refused in the appeal. 7 As to the cross-appeal, we also consider that leave to appeal should be refused having regard to the above consideration of the primary appeal and the issues raised on the cross-appeal. In that respect, we note that we have extended time as to the cross-appeal. 8 We order that leave to appeal be refused in relation to the appeal and the cross- appeal. __________________________________ 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.