Industrial Relations Commission New South Wales Medium Neutral Citation: Director General, NSW Department of Health on behalf of the Ambulance Service of New South Wales and Peter Redmond [2013] NSWIRComm 107 Hearing dates: 25/11/13 Decision date: 25 November 2013 Jurisdiction: Industrial Relations Commission Before: Walton J, Vice-President; Staff J; Backman J Decision: We order that: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The matter is referred to Newall C pursuant to s 192(1) (c) of the Industrial Relations Act 1996 for hearing. In accordance with this decision; and the terms of the Full Bench decision in Redmond v Director General, NSW Department of Health, on behalf of Ambulance Service of New South Wales [2012] NSWIRComm 147, in particular at [74]. In particular, the proceedings shall be conducted on the basis of the evidence before Harrison DP (for more abundant caution we treat MFI H1 as part of the evidence in those proceedings). The exhibits and the transcript of those proceedings before the Deputy President will be admitted as evidence in the proceedings before Newall C. In view of the conduct of the proceedings before Harrison DP we direct that Ms Horgan and Mr and Mrs B be available for crossexamination, subject to any application to the Commissioner for leave to be excused from that requirement. Catchwords: APPLICATION FOR LEAVE TO APPEAL AND APPEAL - ambulance officer dismissed from employment for misconduct - allegation of misconduct concerned administration of fentanyl intravenously without authorisation - appellant appealed against decision of Harrison DP to reinstate the respondent - proceedings before Harrison DP conducted in a manner which was inconsistent with orders of the Full Bench in referring the matter for hearing, "to be determined in accordance with the [Full Bench decision]" - errors by Harrison DP identified - orders Legislation Cited: Industrial Relations Act 1996 Cases Cited: Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120 Redmond v Director General, NSW Department of Health, on behalf of Ambulance Service of New South Wales [2012] NSWIRComm 147 Category: Principal judgment Parties: Director General, NSW Department of Health, on behalf of Ambulance Service of New South Wales (Appellant) Peter Redmond (Respondent) Representation: R Kenzie SC with S J E Prince of counsel (Appellant) B D Dooley SC with T R Edwards of counsel (Respondent) Lander & Rogers Lawyers (Appellant) Harris Wheeler Lawyers (Respondent) File Number(s): IRC 523 of 2013 Decision under appeal Citation: Redmond v Director General, NSW Department of Health on behalf of the Ambulance Service of New South Wales [2013] NSWIRComm 36 Date of Decision: 2013-05-31 00:00:00 Before: Harrison DP File Number(s): IRC 428 of 2010 Ex tempore DECISION WALTON J, Vice-President 1The unanimous decision of the Full Bench shall be delivered by Backman J. BACKMAN J 2This appeal constitutes the second appeal between the parties to these proceedings which concern the dismissal of Peter Redmond from his employment as an ambulance officer with the Ambulance Service of New South Wales. 3Following the first appeal overturning the decision of Tabbaa C the matter was referred to Harrison DP (after allocation by the President), "to be determined in accordance with [the Full Bench decision]". The orders so expressed were made in light of the decision in Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120 and a detailed exposition by the Full Bench as to what it had contemplated was required for a rehearing of the matter: See [71], [74] [76] of the Full Bench decision. 4In our view, the proceedings before Harrison DP were conducted inconsistently with that decision. It is true that directions were not given on the referral but the intention of the Full Bench for the conduct of proceedings was made abundantly clear not only by reference to the passages referred to above but by the entirety of the decision insofar as it disclosed what the Full Bench considered to be inadequacies in the reasoning of Tabbaa C. 5Not only was the "halfway house" approach adopted by Harrison DP inconsistent with the decision of the Full Bench, but it resulted in a miscarriage of the proceedings requiring appellate correction for the proper administration of justice. Leave must be granted, in our view, in the public interest. 6We would wish to make abundantly clear that in adopting the procedure he did the Deputy President was led into error by the respondent. 7These reasons are necessarily truncated because we consider that the history of the matter requires judgment to be given urgently and for proceedings to be put in place to finally dispose of the application brought by Mr Redmond. 8Two critical issues led the Deputy President into error: (1) Deputy President Harrison made findings of credit without any crossexamination of Ms Horgan and without any warning to the appellant that he intended to make those findings in those circumstances. (2) Deputy President Harrison's findings of credit were made against Ms Horgan without any crossexamination of Mr and Mrs B. 9In our view, the Deputy President was in error in making adverse findings against Ms Horgan without having observed and heard her in crossexamination, particularly in relation to matters which had not been put to Ms Horgan. 10As the Full Bench concluded in its decision (at [71]) the evidence of Mr and Mrs B was of direct relevance to the central issue which was whether Mr Redmond had administered Fentanyl intravenously to Mr B; and, the failure to take into account that evidence or to reconcile competing evidence in the context of determining whether Fentanyl had been administered intravenously by Mr Redmond constituted further error which required correction on appeal. 11Further, it was an error not to admit the additional statements of Mr and Mrs B which went to one of the issues identified by the Full Bench as a relevant consideration in the further proceedings. Those statements also went to an issue relevant to the credit of the respondent. ORDERS 12We order that: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The matter is referred to Newall C pursuant to s 192(1) (c) of the Industrial Relations Act 1996 for hearing. In accordance with this decision; and the terms of the Full Bench decision in Redmond v Director General, NSW Department of Health, on behalf of Ambulance Service of New South Wales [2012] NSWIRComm 147, in particular at [74]. In particular, the proceedings shall be conducted on the basis of the evidence before Harrison DP (for more abundant caution we treat MFI H1 as part of the evidence in those proceedings). The exhibits and the transcript of those proceedings before the Deputy President will be admitted as evidence in the proceedings before Newall C. In view of the conduct of the proceedings before Harrison DP we direct that Ms Horgan and Mr and Mrs B be available for crossexamination, subject to any application to the Commissioner for leave to be excused from that requirement. ********** 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. Decision last updated: 16 December 2013