Industrial Relations Commission of New South Wales in Court Session CITATION : Graham v Department of Community Services [2001] NSWIRComm 166 APPLICANT/APPELLANT Karen Graham PARTIES : RESPONDENT Department of Community Services FILE NUMBER: IRC 5509 of 2000 CORAM: Wright J President; Walton J Vice-President; Hungerford J CATCHWORDS : Appeal - Application for leave to appeal - Unfair contract proceedings - Leave to appeal refused - Appeal dismissed - Costs. LEGISLATION CITED : Industrial Relations Act 1996 s 106 s 188 CASES CITED : Day v Lumley Life Limited (1999) 90 IR 70 HEARING DATES: 07/19/2001 EXTEMPORE JUDGMENT DATE : 07/19/2001 APPLICANT/APPELLANT Ms J A Keys of Counsel Solicitors: Bailey Meadows (Mr G Meadows) LEGAL REPRESENTATIVES: RESPONDENT Ms E S Brus of Counsel Solicitor: Mr I V Knight, Crown Solicitor (Ms A Paul) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J Thursday 19 July 2001 Matter No IRC 5509 of 2000 KAREN GRAHAM v DEPARTMENT OF COMMUNITY SERVICES Application by Karen Graham for leave to appeal and appeal against a judgment of Justice Boland given on 23 October 2000 in Matter No IRC 2731 of 1999 JUDGMENT OF THE COURT (Extempore) [2001] NSWIRComm 166 1 This is an application for leave to appeal and, if granted, an appeal against a judgment of Boland J of 23 October 2000. The matter proceeded upon an amended notice of appeal and the parties were heard as to the application for leave to appeal at the outset of the proceedings. 2 We consider that this is not an appropriate matter for the grant of leave to appeal. Consistent with the traditional approach of the Full Bench in relation to the determination of applications for leave to appeal we do not give reasons for our decision. We propose, however, to make observations as to one aspect of the grounds for leave to appeal advanced by the appellant. 3 We note Miss Keys of counsel appearing for the appellant submitted that his Honour had erred in law in his assessment that the contract was not unfair by reference to the conduct of the appellant. We do not consider his Honour so erred. The issue raised by the appellant essentially related to his Honour's application of the judgment in Day v Lumley Life Limited (1999) 90 IR 70. The issue arises in part because his Honour extracted a passage from Day v Lumley Life Limited in a manner which may have suggested that his Honour viewed that judgment as requiring the conduct of the employee (and in particular conduct giving rise to a breach of a contractual obligation) to be taken into account in making a finding as to whether a contract was unfair for the purpose of s 106 of Industrial Relations Act. We consider that judgment is not authority for any such proposition. However, we do not consider that the judgment of Boland J considered as a whole, and in particular the section of the judgment immediately following the passage extracted from Day v Lumley Life Limited, contains any such finding. 4 The gravamen of his Honour's conclusion was that the respondent had not engaged in conduct under or in relation to the contract which was relevantly unfair. We note no finding was sought by the appellant at first instance as to whether the appellant had been harassed. The complaint related to the respondent's approach to grievances raised by the appellant. In that respect it was appropriate for his Honour to consider whether or not the appellant's action may have affected the course of such enquiries. We understand this to be the limit of his Honour's assessment. In that respect no error is demonstrated. 5 We have heard the parties as to the issue of costs but only with respect to the relevance of the award of costs at first instance to the question of leave to appeal. We are mindful that his Honour observed at first instance that the appellant had suffered some hardship. In those circumstances we do not call upon the parties today as to the question of costs of the appeal. We will reserve that question and in doing so note that the respondent may consider his Honour's observations as to the personal situation of the appellant in deciding whether to press for costs on the appeal. 6 We make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. Costs reserved. _____________________________________ 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.