Industrial Relations Commission New South Wales Medium Neutral Citation: Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40 Hearing dates: 25 March 2014 and supplementary note 25 July 2014 Decision date: 08 August 2014 Jurisdiction: Industrial Court of NSW Before: Walton J, President Decision: Appeal upheld and decision below quashed in part. Matter to be remitted. Parties to bring in draft orders. Catchwords: APPEAL - application for leave to appeal and appeal - whether leave to appeal is required under s 197B of the IR Act - principles relevant to the grant of leave to appeal - Government Sector Employment Act 2013 - employed under the Public Sector Employment and Management Act 2002 - employee dismissed under s 46 of the PSEMA - dismissal for misconduct following disciplinary investigation - employee alleged corruption and corrupt conduct by colleagues - employee took workers compensation leave after alleged bullying - psychiatric condition -medical evidence - employee dismissed for misconduct due to refusal to comply with instruction and directions to attend medical assessments - employee appealed dismissal under s 98 of the Industrial Relations Act 1996 - directions issued invalidly pursuant to Regulation - Department Head failed to form requisite opinion - whether the Regulation constituted a code - common law power to direct attendance to medical assessments - reasonableness - appeal upheld at first instance - employer appealed under s 197B of the IR Act - nature and scope of a statutory appeal under s 197B - what constitutes a decision on a question of law - pleadings as to decisions in par E (a), (b) and (c) constitute decisions on questions of law - whether Commissioner posed wrong question at law - whether excluded relevant considerations - par E (f) of pleadings not constitute a decision on a question of law - principles in Azzopardi - mixed questions of fact and law - Commissioner identified relevant indicia - pleading in par E (e) dependent upon finding in par E (f) and not available - notice of contention - notice spent - Regulation not a code - nature and scope of statutory appeal under Pt 7 - applicability of judgment in Lambert - disciplinary scheme under Pt 2.7 of the PSEMA - whether protective jurisdiction - significance of ss 97, 98 and 100C of the IR Act - relevance of fiduciary obligations to protective jurisdiction - significance of Commissioner's findings as to misconduct - finding of misconduct not foreclose considerations relevant to appeal under Pt 7 - findings misconduct not prerequisite to exercise of protective powers under Pt 7 - proceedings below miscarry for wrong question and exclusion of relevant materials - Lambert applicable - wrong test applied - errors of law - appeal upheld - decision quashed so far as consistent with this judgment - order for remitter proposed - parties to bring in draft orders reflecting judgment Legislation Cited: Government and Related Employees Appeal Tribunal Act 1980 Government Sector Employment Act 2013 Industrial Arbitration Act 1940 Industrial Commission Rules 2009 Industrial Relations Amendment (Industrial Court) Act 2013 Industrial Relations Amendment (Public Sector Appeals) Act 2010 Native Title Act 1993 (Cth) Public Sector Employment and Management Act 2002 Public Sector Employment and Management Amendment (Ethics and Public Service Commissioner) Act 2011 Public Sector Employment and Management Regulation 2009 Public Sector Management (General) Regulation 1996 Public Service Act 1902 Transport Administration (Staff) Regulation 2005. Transport Appeals Board Act 1980 Uniform Civil Procedure Rules 2005 (NSW) Workers' Compensation Act 1926 Cases Cited: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bankstown City Council v Paris [1999] NSWIRComm 368, (1999) 100 IR 363 Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395; 113 IR 461 Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117 CA Ford Pty Ltd v Comptroller-General of Customs (1993) 46 FCR 443 Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91 Clisdell v Commissioner of Police (1993) 31 NSWLR 555 Clyne v NSW Bar Association (1960) 104 CLR 186 Collector of Customs v Agfa-Gervaert Limited [1996] HCA 36; (1996) 186 CLR 389 Commissioner of Police v Donlan and Hanson [1995] NSWCA 468 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Décor Ceilings Pty Limited v Cox Constructions Pty Limited [2005] SASC 146 Director of PE His Agent the Director-General of the Department of Juvenile Justice and PSA and Professional Officer's Amalgamated Union of NSW (on behalf of Elvin Brian Brown) [2008] NSWIRComm 221 Director General, Department of Ageing, Disability and Homecare v Lambert [2009] NSWCA 102 Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427 New South Wales Bar Association v Evatt (1968) 117 CLR 177 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577 Duhbihur v Transport Appeal Board (2005) 149 IR 126 Electrolux Home Products Pty Ltd v Australian Workers' Union and Others [2004] HCA 40; 209 ALR 116 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 Franks v Roads and Traffic Authority [1996] NSWCA 192 George Maitland v Royal Blind Society of New South Wales [2004] NSWIRComm 368 Greig v Director-General of Department of Education and Communities [2013] NSWIRComm 1025 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 Knowles (1999) 95 IR 380 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Maritime Services Board v Murray (1993) 52 IR 455 McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720 New South Wales Bar Association v Evatt (1968) 117 CLR 177 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 Public Service Association of NSW and Public Service Board Re Ristau (No 2) (1979) AR 357 Re Dispute-Dismissal of Union Delegate at Homebush Abbatoir (1966) AR 377 Re Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Macquarie Generation [2004] NSWIRComm 11 Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 Scanlon v Director-General, Department of the Arts, Sport and Recreation (2007) 70 NSWLR 1 Schoeman v Director-General, Department of Attorney-General and Justice [2013] NSWIRComm 1018 Smith v Allan (1993) 31 NSWLR 52; (1993) 48 IR 469 State of Queensland v Central Queensland Land Council Aboriginal Corporation [2002] FCAFC 371 Strange-Muir v Corrective Services Commissioner of NSW (1986) 5 NSWLR 234 Thompson v IGT (Australia) Pty Ltd [2008] FCA 994; (2008) 173 IR 395 Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354 Valuer-General v Dobrel Pty Ltd (1993) 79 LGERA 334 Wijesuriya v The Director-General of the Department of Conservation and Land Management (1994) 54 IR 384 WorkCover Authority of NSW (Inspector Belley) v Freight Rail Corporation [2002] NSWIRComm 281 Texts Cited: Pearce and Geddes, 'Statutory Interpretation in Australia' (7th ed, LexisNexis Butterworths) Category: Principal judgment Parties: Secretary, Department of Justice (formerly Director-General, Department of Attorney General and Justice) (Appellant) Fiona Schoeman (Respondent) Representation: S B Benson of counsel (Appellant) D H Nagle of counsel (Respondent) Crown Solicitor's Office (Appellant) Maurice Blackburn Lawyers (Respondent) File Number(s): IRC 824 of 2013 Decision under appeal Citation: Schoeman v Director-General, Department of Attorney-General and Justice [2013] NSWIRComm 1018 Date of Decision: 2013-09-26 00:00:00 Before: Newall C File Number(s): IRC 100 of 2013 Judgment 1Fiona Schoeman ('the respondent') commenced employment with the Department of Justice, as it is now known ('the Department'), on 3 February 1992. She commenced as a temporary employee in the Blacktown/Windsor Sheriff's Office and thereafter filled a range of clerical positions. She was appointed as an Administrative Assistant in the Crime Prevention Division of the Department ('the CPD') from 26 August 2004 and progressed to the permanent position of Senior Business Support Officer, Clerk, Grade 3-4, within the CPD from 23 September 2008 (having earlier taken up that position on a temporary basis). At the time of her dismissal on 10 January 2013 by the Director-General of the Department, the respondent was acting as a Court Officer outside of the CPD (a position she had undertaken from 13 March 2010). 2The Director-General of the Department (then known as the Department of Attorney General and Justice) who effected the dismissal of the respondent was Mr Laurie Glanfield. Schedule 1 of the Public Sector Employment and Management Act 2002 ('the PSEMA') provided that the Director-General of that Department was the Division Head for the purposes of that Act. As will later be discussed, the PSEMA was repealed by the Government Sector Employment Act 2013 ('the GSE Act'), the relevant sections of which commenced 24 February 2014. By s 23(1) of the GSE Act, the head of a Department is to be known as the Secretary of the Department and, as noted above, the current designation of the relevant Department is the Department of Justice. In consequence, it is appropriate to adjust the title of the appellant in these proceedings, in order to reflect the current statutory position, to 'Secretary, Department of Justice' (see Maritime Services Board v Murray (1993) 52 IR 455 ('Murray') at 459). For convenience, in order to capture these various historical emanations, the appellant shall be referred to throughout this judgment as 'the Department'. For further convenience, where a description is given to an action taken by the Secretary or his predecessor Director-General, reference shall be made to the 'Director-General' and, where discussion is undertaken as to the powers, role or function of the head of a Department generally, the descriptor used shall be 'Department Head'. 3The respondent contended that she had suffered bullying on or about 17 July 2007 (the date of the injury) and that that conduct derived, inter alia, from allegations that she had made of corrupt conduct within the Department. The respondent had asserted that she had suffered bullying (on that date) on numerous occasions during the period from the date of the injury up to, and after, her dismissal and those assertions were incorporated by her into written communications with the Director-General associated with her dismissal. The Department contended that on two such occasions, namely 17 December 2012 ('the December letter') and 17 January 2013 ('the January letter'), the respondent had used language which was "colourful" and "disrespectful and discourteous". 4On 17 July 2007, the respondent commenced leave for a period of nearly 12 months for which she claimed workers compensation (she resumed work on 9 July 2008). 5Medical certificates were not in evidence at the trial for that period of absence. Nonetheless, the workers compensation claim was settled for that period (on a 'without prejudice' or 'concession' basis). An order to that effect was made by the Workers Compensation Commission ('the WCC') on 15 March 2010. 6There were in evidence in the proceedings below, however, workers compensation certificates for later periods of the respondent's employment, the first of which was dated 15 September 2009. In that certificate, the respondent's treating doctor, Dr John Nguyen, stated that the respondent was injured on 17 July 2007 and identified, in answer to the question "How the injury occurred", "unresolved HR issues, exclusion from work, no communication". The medical diagnosis given was "stress, adjustment disorder with anxious mood, bullying seen on 17/7/2007". The medical report expressed that the respondent's employment was a substantial contributing factor to her injury. Those opinions were contained in all subsequent certificates dealing with the same subject matter, the last of which was issued on 30 April 2012 (the respondent later made a workers compensation claim with respect to a recurring repetitive strain injury ('RSI') for which separate certificates were issued by Dr Nguyen from November 2010). 7From the time of the respondent's return to work on 9 July 2008 until 13 February 2010, the aforementioned certificates provided by Dr Nguyen stated that the respondent was fit for work on the condition that she did not work in the CPD. From the latter date, the certificate was changed, in one respect, by the addition of a requirement that she could not work within the building in which the CPD was located. There was also a short period between 29 March and 30 April 2010 in which the respondent was declared unfit for work. The diagnosis in the certificate issued for that short period of absence did not differ from any other the subject of bullying. It is not apparent what medical circumstances gave rise to the changed condition. 8After the closed period governed by the WCC order, the Department referred the respondent for what it described as an "independent medical assessment". That assessment was undertaken by Dr Dwight Dowda, a Senior Occupational Physician, who issued a report on 6 August 2009. After referring to the history provided by the respondent, including her perception of corruption in the workplace and bullying (together with her relocation, at that time, to the Crown Solicitor's Office), Dr Dowda declared of the respondent: "[m]edically, she is fit for work". This declaration extended to both her substantive position of Senior Business Support Officer and the position which she temporarily occupied at the time within the Crown Solicitor's Office. She was said to be able to work in those positions "without restriction or limitation". However, Dr Dowda indicated that there was a "barrier" to the respondent returning to work in her substantive position because of "unresolved interpersonal/human resources issues that have apparently festered on from the time of instigating the workplace grievance". 9The context in which Dr Dowda's recommendation was given and the barrier to which he referred, was expressed in the following manner: The limitation that is placed upon her returning to work in the Crime Prevention Division is the fact that she would report directly to the Manager, Business Systems and Planning and through that manager, the Assistant Director General, Crime Prevention & Community Programs, who are the personnel with whom she has ongoing issues and as long as these individuals occupy the positions that they do within that unit, then it is not reasonable to expect her to work in that unit since the result would inevitably be an exacerbation of symptoms of adjustment disorder with anxious mood. 10Ultimately, Dr Dowda concluded as follows: My recommendation is that she is fully fit to carry on working productively in the Crown Solicitor's Office and given that this position is available (as I understand) being at the same level as her substantive position in the Crime Prevention Division, I would encourage the organisation to ensure her continued health and well being by maintaining her in that position. 11The respondent did have absences from work during the period after April 2010, but those absences were upon the basis of medical certificates of a different character (concerning the aforementioned RSI). 12In the proceedings below, the parties proffered competing characterisations of the medical opinion of Dr Dowda and the diagnosis and management plan certified by Dr Nguyen with respect to whether they could form the basis for a reasonable direction to attend a medical assessment. The Department perceived these reports as evidencing psychiatric injury such that, considering the respondent's workplace restrictions and absences, an independent medical assessment was warranted. The respondent, on the other hand, viewed these circumstances as reflective of the unresolved human resource issues mentioned by her doctors rather than a subsistent medical condition, and, since the Department had apparently accepted the respondent's inability to work in the CPD as a condition of her employment, contended that there was no bona fide reason to direct her to attend a psychiatric examination. This disparity formed the foundation for the considerable controversy in these proceedings and below as to whether the respondent may have been lawfully directed (at common law) to attend a medical assessment having regard to considerations of reasonableness. The question as to whether the resolution of that issue is available in the present appeal is a matter which can await later attention. 13The genesis of the controversy to which I have referred was a communication by Ms Jane Dunn, Manager within the Department's Personnel Services, to the respondent of 15 December 2011 in which Ms Dunn informed the respondent of the following: The Department would like to obtain more recent medical advice regarding the condition of "adjustment disorder with anxious mood" to better assist with identifying suitable duties and provide support to you in the workplace. 14Four subsequent communications were sent to the respondent, the first a letter from Ms Dunn dated 29 December 2011 ('the instruction') and the following three from the Director-General dated 23 January, 2 March and 2 May 2012 respectively ('the first direction', 'the second direction' and 'the third direction', respectively, or, when referred to collectively, 'the directions'). The instruction and the directions each instructed the respondent to attend a medical assessment. She replied to each communication. These replies constituted refusals to attend the medical assessments, although only two of the directions involved substantive appointments (scheduled, respectively, for 3 February and 20 April 2012 with Dr Richard Burek, a psychiatrist). (The respondent later contended that the third direction did not constitute a direction, in terms. In substance, however, it is clear that that communication was both intended as a direction and received as such.) 15In reliance upon her refusal to comply with the instruction and the directions said to be given and her corresponding failure to attend the two appointments, the appellant commenced disciplinary action against the respondent which resulted in her dismissal. 16The directions were each purported to have been given under a regulation made pursuant to the PSEMA, although the first direction mistakenly referred to the Public Sector Management (General) Regulation 1996 ('the 1996 Regulation'), which had been repealed at the time. The second direction referred to a cl 13(2) without stating the regulation from which this clause was found. However it was common ground that that direction was referring to the Public Sector Employment and Management Regulation 2009 ('the 2009 Regulation') because the clause identified therein corresponded to the only applicable clause of that Regulation (even though the direction later referred to the 1996 Regulation). Only the third direction consistently referred correctly to the 2009 Regulation and, in particular, to cl 13(2) thereof. 17Clause 13(2) of the 2009 Regulation established a precondition for the issuing of a direction, namely, that the Department Head must first have formed the view that the employee was "not fit for work". A finding was made below that the requisite view, in that respect, had not been formed by the Director-General in respect of the respondent in this case and, hence, the directions were not validly issued pursuant to the 2009 Regulation. That finding was not contested in these proceedings (despite some momentary equivocation in reply by counsel for the appellant). In my view, that concession was correctly made. 18The elimination of that issue did not, however, as earlier noted, extinguish in the proceedings below, or in these proceedings, a controversy as to whether the directions were lawful. Here, the Department contended that the directions were available to the respondent's employer at common law under an implied power in the respondent's contract of employment (which was not expressly referred to in the directions) and a Department of Premier and Cabinet Circular C2011-23 ('the circular') (to which the second and third directions referred). Primarily, the respondent contended that the directions issued were unreasonable (an issue over which, as I have recorded, the parties joined issue). The respondent contended further that the reference to the circular in the second direction did not constitute reliance (although the circular was clearly relied upon in the final direction). The respondent also sought to sustain the decision below on an alternative basis stipulated in a notice of contention. In essence, it was contended that the 2009 Regulation constituted a code vesting in the Department Head the sole repository of power to direct employees to attend medical assessments to the exclusion of the common law. 19On 7 June 2012, the Department notified the respondent that a disciplinary investigation into her "failure to adhere to directions" had been initiated in accordance with s 46(1)(a) of the PSEMA as her inaction appeared to be a breach of the Department's Code of Conduct (in particular s 4). That notification identified her failure to "comply with directions to attend a medical assessment" as her alleged misconduct, particularising the respondent's refusal letters of January, February, April and May. The letter noted that, if the misconduct was substantiated, disciplinary action under s 42(1) of the PSEMA may be taken. 20The respondent replied to the 7 June letter on 22 June 2012, refuting the allegations contained therein and refusing to participate in the investigation. During the course of the investigation, from 26 June until 3 August 2012, the respondent was unfit for work due to her RSI. 21The investigation was undertaken by a consultant, Ms Joy Woodhouse, and the resultant report was sent to the Department on 3 August 2012. Ms Woodhouse found that the respondent had failed to comply with directions to attend a medical assessment and, in so doing, had breached the Department's Code of Conduct. Her report stated that the respondent's misconduct "demonstrated a failure on her part to accept the legislative and administrative authority of the Director General". It recommended disciplinary action against the respondent. 22On 11 December 2012, Ms Jane Ridley, Director of Corporate Services in the Department, drafted a report for the Director-General, which he approved on the same day, recommending a disciplinary response to the respondent's misconduct. It cited, inter alia, the respondent's disrespect for authority, that she was uncooperative and rude and that she exhibited no remorse for ignoring "reasonable and lawful directions issued to her". 23Consequently, the Director-General wrote to the respondent contending that, on or from 29 December 2011, she had failed to comply with numerous reasonable and lawful directions. In particular, he noted the instruction and the directions, the respondent's refusal letters and her corresponding failure to attend two appointments. He determined that this conduct was: Improper, unacceptable and contrary to your responsibilities as an employee under the Department's Code of Conduct and represent an issues [sic] of serious concern; Improper, unacceptable and contrary your [sic] responsibilities under section 41 of the Public Sector Employment and Management Act 2002; Incompatible with the fulfilment of your duty as an employee of the Department and are [sic] destructive of the necessary mutual trust and confidence between employer and employee. 24The Director-General advised that he had determined to take disciplinary action and, as he was considering dismissal, that the respondent had an opportunity to meet with him and to furnish further submissions. 25The respondent replied to that invitation on 17 December 2012, denying that she had engaged in misconduct. She contended that named Department officials had attempted to "seize any opportunity to devise accusations ... in order to ultimately terminate [her] employment with the department" and questioned the veracity of the investigation which had occurred. Further, she noted that her dismissal occurred only six days after she had filed documentation in the Supreme Court of New South Wales to access information about the Department (when the report of the investigation had been received some four months earlier). The respondent contended that the Director-General had "tainted and brought disgrace" to his position and that to meet with him would be a "waste of time and effort" as he was simply ticking bureaucratic boxes to facilitate the termination of her employment. Nonetheless, she provided favourable references from 1994 to 2009 and noted the positive regard in which her manager, at the time, had held her. 26On 10 January 2013, the Director-General dismissed the respondent from the New South Wales Public Service pursuant to s 46 of the PSEMA. The basis for that decision was the Director-General's determination that the respondent had "engaged in inappropriate, unprofessional and unacceptable behaviour in relation to a continued lack of respect for authority and Departmental processes, and a failure to adhere to lawful and reasonable directions" and that she demonstrated no remorse nor apologised for that conduct, which was "insubordinate and obstructive". It is plain, as Commissioner Newall found below, that the Director-General took the respondent's correspondence of 17 December 2012 into account in forming this view. 27The respondent reacted to her dismissal with a letter dated 17 January 2013 in which she described the Director-General's decision as "dictatorial", "brutal and ruthless" and "dishonourable, extremely harsh and extremely severe". The respondent concluded that he should resign or be ousted from his position because, in essence, her termination represented a symptom of the Department's concerted effort to avoid addressing the corruption that she had reported in 2007. The Proceedings Below 28On 7 February 2013, the respondent filed a Notice of Appeal under s 98 of the Industrial Relations Act 1996 ('the IR Act') seeking, inter alia, reinstatement in an alternative suitable position outside the CPD, reinstatement to her position within the CPD (with the caveat that other named employees would be dismissed and made to repay lost remuneration) or substantial compensation. The resultant proceedings were heard by Commissioner Newall and culminated in the impugned decision delivered on 26 September 2013 in Schoeman v Director-General, Department of Attorney-General and Justice [2013] NSWIRComm 1018 ('the decision'). 29In that decision, the Commissioner made orders allowing the appeal, setting aside the decision of the Director-General and directing the Department to pay the respondent lost remuneration (her contract of employment taken as being unbroken). 30The process of reasoning adopted by the Commissioner has significance for the question of the jurisdiction of this Court to entertain an appeal from the decision below as much as it does upon the ultimate disposition of the appeal and, therefore, requires close attention. 31The axis upon which the Commissioner's decision turned, in my view, was his determination that the disciplinary power exercised by the Director-General under the PSEMA was punitive in nature and not, in contrast, a protective jurisdiction (even though the Commissioner had to consider the public interest under s 146 of the IR Act) (see [85] to [91] of the decision). In like fashion, the Commissioner considered that the appeal before him concerned a punitive jurisdiction. So much may be drawn from the Commissioner's acceptance that the jurisprudence developed with respect to the Government and Related Employees Appeal Tribunal Act 1980 ('the GREAT Act') (ss 48 and 48A) should apply to the exercise of his powers under ss 100C and 100D of the IR Act, and the distinction drawn in Duhbihur v Transport Appeal Board (2005) 149 IR 126 ('Duhbihur'), in that respect, between employers who exercise fiduciary duties (the subject of a protective jurisdiction) and those who do not (the subject of a punitive jurisdiction). The Commissioner relied upon Duhbihur in defining the question which he was required to address under ss 100C and 100D of the IR Act and concluded that a punitive jurisdiction was to be exercised under the heading "The applicable jurisprudence". 32Having satisfied himself as to the applicable test or criterion, the Commissioner formulated the questions that he was required to address. Those questions were set out in [100] of the decision as follows: The Commission's view of the matter is to be formed simply on the basis of, first, whether the misconduct said to be the basis for the punishment is made out; and second, if it is, whether the punishment imposed, here dismissal, is appropriate: Duhbihur loc cit. 33When that passage of the decision is seen in the light of the development of the Commissioner's reasoning under the heading "The applicable jurisprudence" and the balance of the reasoning in the decision (to which I will turn immediately below), it is clear that the Commissioner intended, by the word "simply", to communicate that the questions he posed were the only matters relevant to the determination of the subject appeal in which he exercised a punitive jurisdiction. 34The Commissioner's process of reasoning was as follows: (1)The determination of the appeal required an adjudication of whether the punishment was appropriate (see [101], [105], [151] and [171]). The test was that described in Duhbihur (see [100]); (2)The "primary" or "first fundamental" test in that respect was whether the misconduct, as charged against the respondent, was established on the evidence. If the misconduct as charged was not established there was no basis for disciplinary action (see [101], [108], [151] and [171]) or punishment ([186]) to be imposed and the result must be that the appeal is upheld (see [186]); (3)The descriptor of "primary" or "first fundamental", rather than being absolute, was to denote that, if the misconduct were established, the second question, as stated in [100] (namely, whether the punishment was appropriate), would require resolution; (4)The reliance upon factors outside of the misconduct strictly charged were beyond the scope of the disciplinary process conducted by the Director-General (see [175] to [183]) and the appeal itself (see [152]). The correspondence furnished by the respondent was, therefore, an irrelevant consideration; (5)It was in that light that the Commissioner then posed the question as to whether the refusal to obey the instruction and the directions constituted misconduct; (6)As to that inquiry, a subsidiary question was raised, that is, whether the instruction or the directions were lawful (see [108]) or valid (see [138]). That inquiry proceeded upon the basis that "it can be misconduct to refuse a direction or instruction only if it was a valid direction or instruction" ([138]); (7)It was concluded that the instruction and the directions were "all invalid" and beyond power because they were unreasonable. (The remaining layers of reasoning in the decision proceeded upon the alternative basis that the aforementioned conclusion was wrong.); (8)The Commissioner concluded that the directions, when made under the 2009 Regulation, were invalid. However, that is not the basis upon which he determined invalidity due to unreasonableness (which was a finding that the instruction and the directions were invalid at common law ([149])). The underpinning for that approach was two conclusions as to whether an invalid reliance by the Director-General on the 2009 Regulation may be determinative of the question as to whether a failure to comply constituted misconduct. It was concluded that the common law permitted an employer to direct an employee to attend a medical assessment, provided the direction was reasonable ([127]). The 2009 Regulation did not displace the common law (the Commissioner thereby rejecting a proposition, found in these proceedings in the notice of contention filed by the respondent, that the 2009 Regulation represented a code). Secondly, it was found that the misstatement of the power upon which the Director-General acted did not render the decision invalid if he had, at the time of making the decision, a power he could properly rely upon in reaching his decision. It followed, the Commissioner found, that the Director-General had a power to direct the respondent to attend a medical assessment, subject to the power being actually, reasonably, and appropriately exercised ([133]); (9)The ultimate finding by the Commissioner was that the instruction and the directions were unreasonable and issued without power. This finding derived from the Commissioner's view that, at the time the instruction and the directions were given, there was no functional reason for the respondent to see a psychiatrist (given that she was not, on the evidence, suffering a psychiatric condition and the Department had expressly disavowed any intention for her to return to the CPD). Hence, the specific misconduct with which the respondent was charged could not be sustained ([152]). There being no misconduct, there was therefore no basis for any disciplinary sanction to be imposed (relying upon s 46(2) of the PSEMA) ([154]); (10)The Commissioner found alternate bases for upholding the appeal in the event that he was wrong in his aforementioned conclusion (although, it should be noted, some of the alternate findings had subsidiary components); (11)The first of these findings concerned the Director-General's reliance upon a "particular statutory power, the regulation, to give a direction" (see [156]); (12)As previously mentioned, the Commissioner concluded (correctly, in my view) that the failure by the Director-General to form a view that the respondent was unfit for work meant that there was an invalid use of the power to direct the respondent to attend a medical assessment under the 2009 Regulation, as the forming of that requisite view was a precondition for the exercise of that power; (13)Further, the respondent was entitled to resist the direction as "the factual circumstances simply did not provide the necessary precondition to the direction in the terms that it was made" (see [162]). It was not for the respondent "to assume that the Director-General has erred in his written direction, further assume that as a matter of law he could have given the direction validly under another power to which he has not referred, then assume to herself an obligation to act as if the direction had been given under that other, unexpressed and unidentified, power, and then to act accordingly by attending the assessment" (see [164]). The directions were, on the facts, bad; (14)Whilst the circular did provide that employees were required to comply with "directions given by an agency to attend medical assessments" it did not provide a "power to direct independent of the powers actually held by the Director-General or his delegates" ([167]). The circular did not confer reasonableness on an "otherwise unreasonable exercise of the power" ([167]); (15)Again, as there was no misconduct, there was no basis for disciplinary action; (16)The instruction was found to be different as it did not rely upon the 2009 Regulation for the exercise of power. It was, of itself, not a basis for the imposition of any disciplinary sanctions "approaching dismissal". It warranted no more than a reprimand; (17)Procedural unfairness was identified by the Commissioner as another reason why the appeal ought to have been upheld, although it would appear that this factor constituted another alternative basis for decision in the event that the primary finding as to invalidity was wrong ([182]). The basis for the Commissioner's findings that the dismissal was attended by procedural unfairness were: (a)The language used in the preliminary and final reports to the Director-General concerning the respondent constituted, according to the Commissioner, procedural unfairness as it demonstrated an absence of objectivity and was "colourful" and "prejudicial"; (b)The Director-General received and took into account prejudicial material (including some unsourced hearsay) which was outside the specific allegations of misconduct and thereby irrelevant. The final report received by the Director-General regarding the respondent, which report was prepared by the Employee Relations Unit of the Department, referred, inter alia, to the respondent's continued pattern of disrespect towards law and authority and her inappropriate, unprofessional and unacceptable behaviour. It noted that the respondent had been uncooperative, rude and discourteous. Further, the reliance on irrelevant material rendered the ultimate decision to impose disciplinary sanction ultra vires; (c)The use of the respondent's letter of 17 December 2012 as a "further material basis for a final finding of misconduct and a decision to dismiss, without giving her any opportunity to be aware that he was doing so, let alone an opportunity to be heard about that" was significantly procedurally unfair. (18)The appeal could also be upheld upon the basis that the decision made was ultra vires "for reason of the Director-General taking into account irrelevant prejudicial material, material which it was the Department's express evidence that he did take into account in making the final decision". This was a reference to, inter alia, the respondent's letter of 17 December 2012; (19)The Commissioner finally concluded (in the context of considering the practicability of reinstatement) that there was no basis for the imposition of punishment because there was no misconduct and, therefore, the Commission had to set aside the decision to dismiss by the Director-General. The Commissioner had no power to impose "any sort of punishment" in circumstances where there was no misconduct (see [196]). The Present Appeal 35This judgment concerns the appeal brought under s 197B of the IR Act from the decision of Newall C in the form of an application for leave to appeal and appeal. After the passage of the Industrial Relations Amendment (Industrial Court) Act 2013 ('the IR Amendment (IC) Act'), which commenced on 20 December 2013, s 197B is in the following terms: 197B Appeals on questions of law in relation to public sector promotional and disciplinary matters (1) A party to proceedings under Part 7 of Chapter 2 may, subject to this Part, appeal to the Commission in Court Session against any decision of the Commission in the proceedings on a question of law. (2) On an appeal under this section, the Commission in Court Session may: (a) remit the matter to the Commission for determination in accordance with the decision of the Commission in Court Session, or (b) make such other order in relation to the appeal as seems fit. The Grounds of Appeal 36The grounds of the appeal were threefold: (1) The Commissioner erred in making several decisions on questions of law in the proceedings (see above). (2) The Commissioner erred in purporting to apply the principles set out in Duhbihur v Transport Appeal Board (2005) 149 IR 126: see [98] of the Decision. (3) The Commissioner failed to give any, or sufficient, consideration to the objects of Part 2.7 of the Public Sector Employment and Management Act, 2002 in determining the decisions in the proceedings on the questions of law the subject of this appeal. 37The first ground of appeal acknowledged that an appeal under s 197B was constrained to an appeal against a decision of the Commission in proceedings under Pt 7 of Ch 2 on a question of law. The decisions of Commissioner Newall appealed against which were said to constitute questions of law were expressed in the Notice of Appeal as a series of alphabetised sub-paragraphs ((a) to (f) respectively) in par E of the Notice of Appeal, under the heading 'Matters Appealed Against'. The impugned decisions were as follows: (a) That there is not to be found within the Public Sector Employment and Management Act, 2002 any basis for importing a protective jurisdiction in dealing with a disciplinary appeal by a public servant: see [98] of Decision. (b) That disciplinary action imposed on a public servant under the Public Sector Employment and Management Act, 2002 is "simply" punitive in nature: see [98] of Decision. (c) That the Commission's jurisdiction, when dealing with a disciplinary appeal under Part 7, Chapter 2 of the Industrial Relations Act 1996, was "simply" to determine first, whether the misconduct said to be the basis for the punishment was made out; and second, if it is, whether the punishment imposed was appropriate: (d) see [100] of Decision. (e) That the directions given by the Appellant to the Respondent attend to medical appointments were unlawful and/or invalid: see [139] of Decision. (f) That the directions given by the Appellant to the Respondent to attend medical examinations were unreasonable (and, in coming to this decision on the question of law, the Commissioner has regard to irrelevant considerations, and failed to take into account or give sufficient weight to, relevant considerations). 38The Department's submissions were framed in such a way as to group the paragraphs appearing above into two groups: (a) to (d) and (e) to (f) (although pars (a) and (b) raised a similar question, par (c), a further, but related question to pars (a) and (b), and the reference in par (d) was plainly coextensive with par (c)). The parties' submissions were ultimately joined on that basis. It will be convenient to approach the disposition of the matter on that basis. Submissions of the Parties 39It is convenient to summarise the parties' submissions by reference to the two groupings of decisions on questions of law referred to above as the parties' submissions were largely constructed in that manner. The First Grouping Submissions for the Department 40Mr S B Benson, counsel for the Department, made oral and written submissions with regard to the first group of challenged decisions which, when taken together, may be summarised as follows: (1)Upon the basis of the authority in Director General, Department of Ageing, Disability and Homecare v Lambert [2009] NSWCA 102 ('Lambert'), the Commissioner erred in finding that there was not to be found within the PSEMA any basis for introducing a protective jurisdiction in dealing with a disciplinary appeal by a public servant and that, under that Act, disciplinary action imposed on a public servant is "simply" punitive in nature (see [98] of the decision); (2)A review of the history of legislation governing public sector disciplinary action supports this conclusion. The Department contended as follows: To reinforce the conclusions in Lambert, it is relevant to note that ever since the Civil Service Act, 1862 (NSW), there have been statutes designed to establish what were perceived at the time as just and uniform disciplinary provisions for members of the NSW Public Service. The Public Sector Management Act, 1988 (which was repealed in 2002) was the last statute regulating the employment of officers within the Public Service of NSW that expressly made provision for "punishment of officers for breaches of discipline" (see s 75) and "punishment" where an officer was guilty of a serious offence (see s 76). ... A few years after the decision in Donlan & Hanson the Public Sector Employment and Management Act, 2002 (NSW) was enacted which introduced in Pt 2.7 - Management of Conduct and Performance, new provisions addressing public sector disciplinary matters. The word "punishment" no longer appeared in this Part and a new sections, s.41, set out expressly for the first time the "objects" sought to be achieved by the Part... The objects in s 41 of PSEMA thus substantively adopted the protective criteria referred to in HArdcastle v Commissioner of Police (1984) 53 ALR 593 at 597 which were also applied in Donlan supra. It is not uncommon for Parliament to indicate the intended purpose of legislation by way of an objects clause. But whilst intention is to be ascertained from the whole Act, and the language used, the objects clause, in setting out the purpose of the Act, provides the court with an aid to interpretation. The adoption by parliament in s 41 of the PSEMA of objects that emulate the protective criteria set out in Donlan, after judicial consideration, may be regarded as an endorsement of that approach... [see Electrolux Home Products Pty Ltd v the Australian Workers Union (2004) 2009 ALR 116 at 138]. By analogy of reasoning, it would be astonishing if the NSW parliament had not had regard to then recent NSW Court of Appeal decision in Donlan & Hanson when reframing the disciplinary provisions under the subsequent PSEMA and, in particular, the adoption of the objects in s 41 and the displacement of the word "punishment" for the phrase "disciplinary action". (3)The Commissioner erred in his consequential decision, which was contrary to authority (namely Lambert) that, first, he had to "simply" determine whether the misconduct said to be the basis for the punishment was made out and, secondly, if it was, whether the punishment imposed was appropriate (see [100] of the decision). This approach incorrectly rendered determinative his finding that there was no misconduct; (4)A finding of misconduct is not the fundamental precondition to the taking of disciplinary action. It is the forming of the requisite opinion by the decision-maker, in this case the then Director-General, which provides the jurisdictional foundation for instituting disciplinary action under the PSEMA. If, upon an appeal, the findings of misconduct are not sustained, it "does not end the inquiry required of the Commission when exercising the powers under s 100C" of the IR Act because, contrary to the submissions of the respondent, the nature and function of the Commission's powers under Pt 7 of Ch 2 of the IR Act are distinct from those of the Department Head and cannot be conflated; (5)The Commission's function is to determine whether the dismissal was necessary to maintain appropriate standards of conduct and performance, to protect and enhance the integrity and reputation of the public service and to ensure that the public interest is protected. That function is protective in nature; (6)The correct approach to exercising that function is to consider whether the decision, based on the opinion of the Director-General formed under s 46(2) of PSEMA, should be allowed, disallowed, or some other decision substituted for it, having regard to the objects under s 41 of that Act and the evidence. This includes taking into account intervening matters of relevance under s 100C(2) of the IR Act, here the correspondence from the respondent (including correspondence sent after the dismissal) (see Murray) and Franks v Roads and Traffic Authority [1996] NSWCA 192 at 464). In this case, the Commissioner's erroneous approach led him to disregard the evidence relating to the "disrespectful and discourteous" communications by the respondent, in particular her letters dated 17 December 2012 and 17 January 2013; (7)The Department contended below that the Commissioner should have regard to the respondent's "disrespectful communications" as evidence "both relevant and extremely prejudicial to the Respondent's appeal below" (particularly as she did not resile from these comments). However, this did not constitute the development, as contended by the respondent, of further distinct findings of misconduct; (8)Ultimately, Commissioner Newall relied on the decision of Duhbihur, which applied to a different statutory scheme and has been distinguished by recent authority. Likewise, the decision in Public Service Association of NSW and Public Service Board Re Ristau (No 2) (1979) AR 357 ('Ristau'), upon which the respondent sought to rely, is distinguishable as an unfair dismissal case. The Commissioner should have followed Lambert; (9)The questions of law raised in the present appeal are "fundamental to the proper functioning of the Commission's jurisdiction under Part 7, Chapter 2" of the IR Act (see, for example, Greig v Director-General of Department of Education and Communities [2013] NSWIRComm 1025). Submissions for the Respondent 41Mr D H Nagle, counsel for the respondent, made oral and written submissions with regard to the first group of decisions which, when taken together, may be summarised as follows: (1)Leave to appeal should be refused, or, in the alternative, the appeal should be dismissed, as the Department sought to run an entirely different case on appeal. Allowing a party to change its case on appeal is to attempt to profit from it (Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 8), particularly in a case such as the present where any error was induced and could not affect the ultimate outcome; (2)There exists a "fundamental principle" that if misconduct is not made out there is no warrant for disciplinary action (reflected in s 46(2) of the PSEMA). The absence of misconduct, therefore, renders the protective jurisdiction inoperative in the present case as the question of whether the jurisdiction is protective or punitive only arises after misconduct has been established and disciplinary action is being considered. (This argument will not be further developed in this summary as it will be discussed more fully later in this judgment.); (3)As misconduct was found in Lambert, that authority should be distinguished; (4)The appeal should be dismissed, even if it is concluded the Commissioner's finding that the directions given to the respondent were unreasonable at common law was incorrect for the following reasons (outlined in the notice of contention filed 25 November 2013): 1. It was open to the Commissioner to have ordered the decision of the appellant to be set aside wholly on the basis of the construction of Regulation 13 of the Public Sector Employment and Management Regulation 2009 where: a. The Appellant did not comply with the Regulation when purporting to lawfully direct the Respondent to medical assessments; and b. Regulation 13 PSEM Regulation limits and or regulates the power vested in the Appellant for the purpose of giving or making directions for employees to attend medical assessments. (5)In this respect, the statutory power relied upon by the Department in directing the respondent was specific and it limited the power of the decision-maker. The 2009 Regulation clearly sets the boundaries of the nature of the directions which may be made to employees whose employment is governed by the PSEMA (see Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427 at 437). In so limiting the Director-General's power to direct officers to attend medical assessments, the 2009 Regulation prevented him from relying on the common law (by implying a power into the contract of employment). Nevertheless, no discharge or variation of any part of the orders of the Commission was sought. The Second Grouping Submissions for the Department 42Mr Benson made oral and written submissions with regard to the second group of decisions which, when taken together, may be summarised as follows: (1)The Commissioner erred in finding that the directions given by the appellant to the respondent to attend medical assessments were unlawful and/or invalid (see [139] of the decision) as they were unreasonable. This conclusion was not open to him on the evidence; (2)In coming to this decision, as a manifestation of the error in posing the wrong question, the Commissioner erred by having regard to irrelevant considerations and failing to take into account or give sufficient weight to relevant considerations; (3)Specifically, the following evidence should have been taken into account or given sufficient weight in order to reach the correct conclusion: a)The respondent continued to suffer from a psychiatric condition at the time the instruction and directions were given and was still under review by Dr Nguyen as to her fitness to work in this respect. The Commissioner's misunderstanding of this injury "led him to erroneously conclude the directions were invalid at common law"; b)The contemporaneous business records of the Department, which demonstrate that the purpose of directing the respondent to a medical assessment was to facilitate the placement of the respondent in a suitable position rather than because of the "extreme and colourful nature of her allegations of corruption" as the Commissioner suggested. (4)As to the Commissioner's alternative findings, upon which he stated that his conclusion could be variously supported, it was submitted: a)The Department's reliance on the circular (which was noted in conjunction with the 2009 Regulation) occurred in a sufficiently clear manner. To find otherwise would be to elevate form over substance; b)If the Commissioner was to make findings with respect to procedural fairness he could have remitted the matter to the Department to be decided in accordance with directions. (I note that this submission was made only with respect to leave and, thereby, did not constitute a challenge to the findings of procedural unfairness.) Submissions for the Respondent 43Mr Nagle made oral and written submissions with regard to the second group which, when taken together, may be summarised as follows: (1)The Department did not appear to contend that the Commissioner applied the wrong common law test with respect to reasonableness or lawfulness (see [101] to [103]) (see Thompson v IGT (Australia) Pty Ltd [2008] FCA 994; (2008) 173 IR 395); (2)In the event that an error was made with respect to reasonableness, therefore, it would not fall within the scope of an appeal pursuant to s 197B of the IR Act because the finding that the direction was unreasonable was not on a point of law but was, at worst, a "mixed finding of fact and law"; (3)The onus was on the Department to prove that the respondent engaged in misconduct. In circumstances where the directions being given "were either invalid, unlawful or otherwise not correct at law the employer will not be able to make out the alleged misconduct" (as another source of power cannot be relied upon to validate the directions because the subject of the direction, the employee, does not need to attempt to ascertain whether another source of power may exist). The GSE Act 44After the present appeal was filed (but before judgment was reserved in this matter) the GSE Act was enacted. As earlier noted, the relevant provisions of that legislation operated from 24 February 2014. Schedule 5 of the GSE Act repealed the PSEMA and the 2009 Regulation (that schedule itself has subsequently been repealed). 45No submissions were received during the course of the hearing as to the implications, if any, of the passage of the GSE Act, but such contentions were subsequently received at the invitation of the Court. On 25 July 2014, the parties jointly communicated to the Court that they viewed the enactment of the GSE Act and the repeal of the PSEMA as being "of no consequence" to the present appeal. 46I accept those submissions. 47The repeal of the PSEMA (and, in particular, Pt 2.7 thereof) and the passage of the new disciplinary scheme in the GSE Act would both have had implications for the present proceedings, if operating upon them, because the amendments might have had the effect of altering the nature and function of both the Department Head in disciplinary processes in Pt 2.7 of the PSEMA and the Commission on appeal under Pt 7 of the IR Act. 48The GSE Act does not, however, evince a legislative intention for a retrospective operation such as may alter rights or obligations at law operating before the passage of that Act (save for cl 11(1) of Sch 4 which is not presently relevant). Clause 11(2) does, in fact, indicate an intention that former proceedings under Pt 2.7 of the PSEMA will be disposed of under that repealed Act (although the clause would not appear to apply to the present proceedings per se). Did the Decisions Referred to in Pars E (a) to (f) of the Notice of Appeal Constitute decisions on questions of law under s 197B(1) of the IR Act? 49I might pause momentarily to observe that, as noted above, the application filed was for leave to appeal and appeal. For reasons which will become apparent, I consider that the discussion concerning leave is best addressed at the conclusion of the analysis as to whether the issues raised relate to decisions on a question of law, to which I will now turn. 50In determining the scope of an appeal under s 197B of the IR Act, the language of the statute must be the relevant starting point: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [89] ('Kostas'). It is apparent from the language used in s 197B(1) that an appeal to this Court is not at large, but is confined to an appeal against any decision on a question of law. 51If the challenged decision does not constitute a decision on a question of law then the Court does not have jurisdiction to entertain an appeal in that respect as the determination of an appeal under s 98 of the IR Act by the Commission is final, subject to the limited right of appeal conferred by s 197B(1): see s 100C(4) of the IR Act (and also s 179 of the IR Act) and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 ('Azzopardi') at 155. 52The statutory predecessor to s 197B was s 54 of the GREAT Act. Whilst s 54 constituted an appeal to the Supreme Court of New South Wales, the provisions as to the scope of the appeal are, in all material aspects, equivalent to those found in s 197B. 53The expression 'decision on a question of law' governs the scope of the appeal, confining, under both statutes, an appeal to a court against the decision of a tribunal on a question of law. That expression, when used s 54 of the GREAT Act, has received considerable judicial consideration, which, in my view, is apposite in the present case. Significant amongst those authorities are: Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720 ('Histon'); Murray; Clisdell v Commissioner of Police (1993) 31 NSWLR 555 ('Clisdell'); Commissioner of Police v Donlan and Hanson [1995] NSWCA 468 ('Donlan') and Lambert. The most recent of those authorities is the judgment in Lambert, upon which the appellant substantially relied in these proceedings. Both the judgments of Hodgson and Basten JJA in that matter deal with the scope of the statutory appeal under s 54 of the GREAT Act (Tobias JA generally agreed with both judgments in this respect). 54Hodgson JA relevantly stated, at [24] to [28]: 24 On the first point, Mr Crawshaw referred to Hutchinson v Roads and Traffic Authority [2000] NSWCA 332 at [33], in which Giles JA (with whom Meagher JA and Powell JA agreed) said: "[33] Section 54 of the Act enables an appeal against any decision, whether final or interlocutory, which is a decision on a question of law, and is not limited to a final determination: Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720; Clisdell v Commissioner of Police (1993) 31 NSWLR 555; Maritime Services Board v Murray (1993) 52 IR 455. The word 'decision' is important. It includes an opinion of the Tribunal on a question of law upon which its determination is based (Clisdell v Commissioner of Police (at 559); Commissioner of Police v Donlan (Court of Appeal, 8 August 1995, unreported)), but it is not enough that an error of law has occurred in the course of a hearing before the Tribunal (Totalisator Agency Board of New South Wales v Casey (at 359); Wijesuriya v The Director-General of Conservation and Land Management (1994) 54 IR 384 at 385). In Totalisator Agency Board of New South Wales v Casey Kirby P held that when the Tribunal denied procedural fairness by relying on matters not the subject of evidence or argument, it had made an error of law but had not made an error in deciding a question of law. The other members of the Court (at 360) did not think there had been a denial of procedural fairness." 25 Mr Crawshaw also referred to Commissioner of Police v Donlan, in which Clarke JA (with whom Handley JA agreed) said there is an error of law which enables an appellant to appeal against a decision of the Tribunal where the Tribunal has asked itself the wrong question. Mr Crawshaw submitted that, even if the Tribunal did have regard to irrelevant factors, this did not amount to asking itself the wrong question, and did not amount to an opinion on a question of law on which its decision was based. 26 Mr Crawshaw also submitted that although the factors set out in the Tribunal's judgment (in the third, fifth and sixth sentences of [36]) did not ameliorate the seriousness of Mr Lambert's conduct in 2006, they could ameliorate the seriousness of his lying to the investigator, which was being relied on by DADHC; and thus they could be relevant to what was appropriate to protect the public interest. 27 Mr Crawshaw also submitted that it was not irrelevant to the exercise of discretion under s 48 of the Government and Related Employees Appeal Tribunal Act to take into account personal circumstances of the employee. Written submissions on behalf of Mr Lambert referred to Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at 144 [28]-[33], which contains a criticism of a sharp distinction between punitive and protective proceedings. 28 In my opinion, there is here a challenge to a decision on a question of law. It is not necessary that the question of law be explicitly stated and decided by the Tribunal. It is sufficient if a decision of the Tribunal is such that a resolution of a question of law is manifested by it: see Scicluna v New South Wales Land and Housing Corporation (2008) 72 NSWLR 674 at 676 [3]-[4], and Douglas v New South Wales Land and Housing Corporation [2008] NSWCA 315 at [17]-[18]. Here, the Tribunal's identification (at [36]) of mitigating circumstances manifested a resolution of the question of law whether such circumstances were relevant to the decision it should make in discharge of its jurisdiction. 55Basten JA, after some description of the nature of statutory appeals, commenced discussion as to the meaning of the expression (at [63] and [64]) as follows: 63 However, although there is some vacillation in the jurisprudence in this Court on the question, it has now been broadly accepted that, in the words of Sheller JA in Clisdell v Commissioner of Police (1993) 31 NSWLR 555 at 559 (Handley JA and Cripps JA agreeing): "It seems to me, therefore, that 'decision' in s 54 is used to include an opinion of the tribunal on a question of law upon which its action or decision, as generally understood, is based." 64 The reference by Sheller JA to an action or decision "as generally understood" was a reference to the view that an appeal from a decision is a challenge to a final or operative decision or order, being an act adversely affecting rights claimed by the appellant. The idea that a decision may be based on an answer to a particular question of law does not necessarily mean that the tribunal itself must have expressly so identified the question. 56After considering Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354 at 359 and Wijesuriya v The Director-General of the Department of Conservation and Land Management (1994) 54 IR 384 ('Wijesuriya'), his Honour continued his analysis (at [68] to [75]) as follows: 68 The Court returned to the construction of s 54 in Commissioner of Police v Donlan [1995] NSWCA 468. In that case, Clarke JA, with whom Handley JA agreed, noted (at 5 [11]) that Samuels JA in Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720 at 725 had concluded that a decision was not limited to the final or operative order of the Tribunal and included "any decision of the Tribunal which is a decision on a question of law". His Honour identified Hutley JA as in agreement with that view. His Honour then noted the submission that "an appeal only lies when the Tribunal expressly refers to a question of law which it proceeds to determine". His Honour identified the high point of that submission as the judgment of Kirby P in Wijesuriya. After reference to the reasons of Handley JA in that case and the judgment of Sheller JA in Clisdell, Clarke JA concluded (at 6 [14]): "Accordingly, I would reject the submission that it is necessary for the Government and Related Employees Appeal Tribunal expressly to identify a point of law and then furnish its answer to that point before an appeal will lie under s 54. In my opinion the section, properly construed, enables an appellant to appeal against the decision of the Government and Related Employees Appeal Tribunal whenever an error of law, as explained in Azzopardi, is raised. That will occur, as I have previously indicated, where the Tribunal has asked itself the wrong question." 69 The reference in Commissioner of Police v Donlan to Azzopardi was a reference to the reasoning of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156: "A finding of fact ... may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer." 70 The approach accepted in Commissioner of Police v Donlan is consistent with that adopted in relation to other provisions having structural similarity to s 54. Thus, under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 a right of appeal is conferred where the Tribunal "decides a question with respect to a matter of law". The structural similarity is that the phrase "question of law" qualifies the decision of the Tribunal and not the appeal: see also, with respect to s 57(1) of the Land and Environment Court Act 1979, ISPT Pty Ltd v Valuer General (2009) 165 LGERA 25 at 28 [3], per Allsop P. In that context, the Court held in Grygiel v Baine [2005] NSWCA 218 at [29], after referring to authority that an appeal was permitted from interlocutory decisions of the Tribunal: "Further, as the judgment of Bryson JA in Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [38]-[58] demonstrates, the terms of s 67(1) require that an appellant must identify with precision a decision of the Tribunal with respect to a matter of law, in order to invoke the jurisdiction of the Court. It is not necessary that the matter of law be separately identified by the Tribunal and expressly addressed as such: it is sufficient that the Tribunal reaches a conclusion with respect to some matter which requires for its determination the identification of a relevant matter of law and that error is alleged with respect to that matter of law. However, as noted by Handley JA ... in Smith v Collings Homes Pty Ltd [2004] NSWCA 75 (at [61]): 'It does seem clear, on any view, that the section prevents a new point of law being taken for the first time on appeal.' " 71 It seems well-established that this approach is the appropriate approach to be adopted in respect of the appeal available under s 54. That approach is relevant to the determination of the present appeal. The issue raised during argument was whether questions as to errors with respect to relevant and irrelevant considerations fell within the terms of the statutory appeal. Because such questions involve assessment of the proper scope of the Tribunal's power and jurisdiction, there is an implicit decision on a question of law with respect to any consideration which is deemed relevant or irrelevant. Such a conclusion involves the view that a consideration is mandatory (relevant) or prohibited (irrelevant) as a matter of law. It follows that it was not necessary for the Director-General to invoke the judicial review jurisdiction of this Court in order to present such arguments. 72 The other matter raised in respect of the scope of the appeal was the claim by the Director-General that there had been a denial of procedural fairness in respect of the order that the respondent be reinstated "on probation". In an early decision under the Act, Connelly v Department of Local Government (1985) 11 IR 362, Hope JA (Glass JA and McHugh JA agreeing) discussed the circumstances in which the refusal of an adjournment could amount to an error of law. His Honour stated (at 365): "There is firstly the case where there is no material before the Tribunal which would justify the granting of an adjournment. At the other end of the spectrum there is the position where, to deny the granting of the adjournment, would in the circumstances amount to a denial of natural justice and thus an error of law." 73 Hope JA did not expressly suggest that such an error was one which would fall within the statutory appeal and the remarks of Glass JA (at 366) may be seen as supporting a contrary approach. The issue was not dealt with expressly (at 362), no doubt because the appellant, at the suggestion of the Court, had applied at the outset of the hearing for orders in the nature of prerogative relief. 74 In the course of his judgment in Totalisator Agency Board of New South Wales v Casey, Kirby P expressed (at 359) the view that a failure to accord procedural fairness involved an error of law, but not one coming within the statutory appeal provisions as identified in Clisdell. 75 There is something to be said for the view that, where a tribunal has exceeded the bounds of its legal authority by failing to accord procedural fairness, such an error does not constitute a decision of the tribunal on a question of law: see Seltsam Pty Ltd (at 53 [159]) and, in relation to a failure to give reasons, Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at 399 [130]. 57Two of the judgments referred to in the judgments of Hodgson and Basten JJA warrant further attention in the present context. 58In Murray, Kirby P (with whom Handley and Sheller JJA agreed) observed at 460: I call attention to this holding so that, from the start, the restricted jurisdiction of this Court, in relation to decisions of the tribunal, will be understood. Not a few of the submissions for the appellant were addressed to the merits of the case, as it saw them: the unacceptability of having, in a position of responsibility, with auditing functions, a person so morally blind as to seek to justify the misrepresentation and to authorise the letter to the supplier concerning sales tax; the unacceptability of his involving another employee in writing that letter; the unacceptability of the Tribunal's giving less weight to the duty statement on fraud and corruption than the employer did. These may, or may not, be legitimate arguments. But they are arguments addressed to the facts and merits of the case. Except so far as the challenge is one to a decision on a question of law by the Tribunal, this Court is not concerned in the facts and merits. It must leave such considerations to the specialist tribunal which Parliament has created, after the tripartite model, and which, in this instance, acted unanimously 59In Donlan, after a discussion of relevant authorities, namely Histon and Wijesuriya, Clarke JA (with whom Handley JA agreed) concluded at [13]: ...the judgments do not, upon examination, support the proposition that an appeal lies only when GREAT expressly poses for itself a question of law which it proceeds to answer erroneously. On the contrary it supports the proposition that an appeal will lie where GREATs decision has been affected by an error of law, such as a failure to ask itself the correct question. 60The following propositions may be distilled from these authorities: (1)A 'decision', in this sense, is not limited to the final or operative order of a decision-maker. Any decision that is a decision on a question of law, including an opinion of the decision-maker on a question of law upon which its action or ultimate decision is based, may constitute a decision on a question of law; (2)The 'decision' on the question of law must be identified with some precision by the appellant in order to invoke the jurisdiction of the appellate court. It is not essential, however, that the decision be identified in such terms by the decision-maker; (3)In general terms, therefore, an appealable decision on a question of law may be found where the decision-maker has reached a conclusion with respect to a matter that required, for its determination, the identification of a relevant matter of law and an error is alleged with respect to that matter of law; (4)A decision on a question of law will be manifested where the decision-maker has posed for themselves the wrong question at law; (5)A decision on a question of law will be manifested where the decision-maker has failed to take into account relevant considerations or has given weight to irrelevant considerations because such a determination necessitates the formation of a view as to whether a consideration is mandatory (relevant) or prohibited (irrelevant) as a matter of law. Pars E (a) to (c) of the Notice of Appeal 61Upon the basis of this distillation of legal principles applicable to s 197B of the IR Act there can be no doubt, in my view, that the first group of decisions appealed against in the present appeal fall within the scope of the statutory appeal under s 197B. 62The Commissioner explicitly adjudicated upon issues which required, for their determination, the identification of a relevant matter of law. The appellant contended that the Commissioner's decisions as to these matters, namely, the nature of the jurisdiction and the questions which required resolution, were incorrect as a matter of law. Accordingly, it was contended that the Commissioner posed for himself the wrong question at law. The decisions, identified by par E (a), (b) and (c) of the application for leave to appeal, therefore, plainly constitute decisions on questions of law and fall within the scope of s 197B. Sub-par (d) is merely a reference to the paragraph of the decision below (at [139]) to which sub-par (c) is directed and therefore it may be considered a subset of that sub-paragraph. 63Further, the Commissioner's assessment of the nature of his jurisdiction and the consequential confinement of the questions he was required to consider resulted in him excluding, as irrelevant certain considerations, the December and January letters. This represents a decision on a question of law, as such a determination necessitates a view as to what is irrelevant as a matter of law. This matter was the subject of submissions by the parties and arose implicitly from par E (a), (b) and (c) of the application for leave to appeal and appeal. Pars E (e) and (f) of the Notice of Appeal 64There remains for consideration the second group of decisions referred to in pars E (e) and (f) of the appeal. The appellant did not draw a distinction between the contentions made with respect to these sub-paragraphs, however, it is clear from the face of the pleadings that sub-par (e) concerned the Commissioner's finding that the directions were unlawful or invalid as they were beyond power (an apparent reference to [139] of the first instance decision) whereas sub-par (f) related particularly to the determination by the Commissioner that the directions to the respondent to attend medical assessments were unreasonable (an apparent reference to [140] of the first instance decision). Ground H (1) - Pleading E (f) 65There appeared to be two bases upon which the appellant contended that the Commissioner's decision that the directions were unreasonable represented a decision on a question of law. 66First, the appellant contended that the determination that the directions were unreasonable could be so categorised because the Commissioner posed for himself the wrong question as part of applying the wrong (punitive) test. 67Secondly, the appellant contended that the Commissioner made errors in the finding of facts which underpinned his ultimate finding of unreasonableness. This was reflected in par E (f), whereby it was pleaded that the determination by the Commissioner that the directions were unreasonable itself constituted a decision on a question of law. Further, in the 'bracketed section of par E (f)', it was further pleaded that "in coming to this decision on the question of law" the Commissioner: (1)Had regard to irrelevant considerations; and (2)Failed to take into account or give sufficient weight to relevant considerations. 68This challenge to the Commissioner's primary findings of fact took two correlated forms. First, there was a challenge to his central reasoning process by which he found, in essence, that the directions were unreasonable because there was no "functional requirement" to seek a medical assessment in the circumstances, given the respondent was not suffering from an ongoing psychiatric condition and the Department had no intention of compelling her to resume work in the CPD. Secondly, the appellant posited an alternative hypothesis that, contrary to the Commissioner's decision, there was, in fact, a legitimate basis upon which to direct the respondent to attend a medical assessment. 69The appellant submitted that the Commissioner's "cumulative misunderstanding of the evidence" led him to err "on a number of findings". The appellant contended that, in consequence of those errors, the Commissioner reached a finding which was not open to him or was not available on the evidence. It was submitted that, had he engaged in a proper consideration of the evidence, the Commissioner would have necessarily found that the directions were reasonable for the following reasons: (1)The respondent had an existing psychiatric condition, which was evidenced by her continued incapacity to work in her substantive role in the CPD (as certified by her treating doctor and the fact that her treatment plan, which included review by a psychologist, was current). (2)A medical assessment, given the respondent's restrictions with respect to her psychiatric condition as well as her RSI, would assist the Department to place her in suitable duties. The business records of the Department demonstrated that the medical assessment was sought for these purposes. (3)It had been several years since the respondent's last independent medical assessment and it was the Department's responsibility to have this assessment updated. 70However, the appellant did not explain with any precision how the Commissioner's findings as to such matters constituted a decision on a question of law. 71The respondent contended that both the primary and ultimate findings of the Commissioner in that regard were findings of fact. This contention was supported by the authority in Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395; 113 IR 461 at 476 ('Blackadder'). In Blackadder, Madgwick J found that the question of whether it is reasonable for an employer to direct an employee to attend a medical assessment "will always be a question of fact" (at 476). 72The first basis by which the appellant contended that the Commissioner's determination that the directions were unreasonable cannot be accepted. It wrongly conflates two distinct issues, namely, whether the Commissioner was in error in confining his attention under s 100C to whether the misconduct was made out and whether the Commissioner erred in determining that the Director-General had invalidly exercised (putting aside the notice of contention) his undisputed common law power to issue a direction to attend a medical assessment due to the direction being unreasonable. It was the former and not the latter question that resulted in the Commissioner posing the wrong question (resulting in a decision on a question of law). 73As to the second basis, the manner by which the appellant advanced that its case, and the rejoinder by the respondent, necessarily called attention to the judgment of the Court of Appeal in Azzopardi (although that authority was not addressed in the submissions of the parties). 74In Azzopardi, the Court considered an appeal against a decision of the WCC refusing compensation on two grounds; the first of which was whether the Commission had come to a conclusion that was not open to it. That ground was particularised as follows: 1. It was not open to him to find that the applicant had not suffered an injury to his right knee. 75It was contended that there were no objective factors in evidence sustaining the conclusion reached by the Commission in that respect. 76A question before the Court was whether an appeal lay to the Court of Appeal under s 37(4)(a) of the Workers' Compensation Act 1926, which limited appeals "in point of law or in relation to the admission or rejection of any evidence". 77Glass JA (with whom Samuels JA agreed) concluded that an appeal to the Court upon that (first) ground of appeal was not open as it did not concern a point of law. After reference to a line of authority commencing with McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8, Glass JA gave the following reasons for his conclusion (at 155 - 157): Although the two grounds were simultaneously expounded in this manner and used to buttress each other it is necessary to consider them separately in order to determine whether a question of law has been raised. If it is not, this Court has no jurisdiction since the power of the Workers' Compensation Commission to determine the facts affecting any claim is made exclusive and its determination of them is final, Workers' Compensation Act 1926, ss 36, 37. The first ground challenges the conclusion below that the applicant failed to establish that he injured his knee on a periodic journey on 4 October 1975. There are authoritative pronouncements that such a contention involves no question of law: The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v Lipton Ltd [1931] 1 KB 539 at 544 and Mersey Docks and Harbour Board v West Derby Assessment Committee [1932] 1 KB 40 at 110, 111. But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it." McPhee v S Bennett Ltd (1935) 52WN(NSW) 8 at 9. (Emphasis supplied.) ... It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654. A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; 57WN53 at 55. The decision here assailed is not of that character. ... To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence. ... Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer-General (at 138; 55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found. ... Returning to the first ground of appeal in the light of these considerations, it follows that no question of law is disclosed. As it happens, the three objective facts on which reliance was placed in making the finding below are in my opinion capable of being supported by evidence which the trial judge did not misapprehend. But I do not propose to quote chapter and verse in support of this opinion since this would involve a resort to the evidence to answer a question which not being a question of law cannot be raised and calls for no answer. 78Kirby P dissented in Azzopardi. His Honour did not consider that perverse decisions on questions of fact or decisions demonstrably manifesting error or illogicality of process should be beyond the reach of appellate review concerning a point of law (at 148). However, his Honour did, nonetheless, consider that the challenge permitted in an appeal on a point of law must be tightly restrained (at 151): The court is limited, relevantly, to points of law. The finding of what have been called the primary facts of a case does not, in itself; expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function. The evaluation of competing evidence and inferences is reserved in compensation cases to the judge of the Compensation Court. Even if the evidence is strongly one way, the appeal court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge as against the weight of the evidence. Where the evidence points only in one direction, and, as in Poricanin the trial judge nonetheless states that he disbelieves it, the onus being upon that person, the court, on appeal, may not intervene. 79In Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 ('Roncevich'), some twenty years after his dissent in Azzopardi, Kirby J observed that, since the judgment in Azzopardi (which affirmed Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 426), it had been "repeatedly held that even perverse or unreasonable findings of fact do not constitute errors of law" (at [67]). More recently, in AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 ('AB v DPP'), Sackville AJA (with whom Adamson J agreed) stated (at [69]) that Azzopardi "continues to be applied in New South Wales and remains good law in this State unless and until overturned". (It may be noted that the judgment in Azzopardi has been the subject of judicial consideration in the context of judicial review with respect to the 'no evidence' test, where a broader formulation may be adopted: see discussion in CA Ford Pty Ltd v Comptroller-General of Customs (1993) 46 FCR 443 at 446. This does not impact upon the influence of that authority for present purposes.) 80Although the judgment in Azzopardi concerned a different form of statutory appeal (and not one confined to a 'decision on a question of law'), there is nothing in that judgment which would properly distinguish its applicability to the present matter. There are three reasons for this view. 81First, the reasons for the judgment of the majority and minority in Azzopardi do not turn upon the meaning of the expression 'point of law' but deal more generally with appeals upon a question of law (see, for example, the judgment of Glass JA at 155). 82Secondly, Azzopardi has been applied in the context of appeals under s 54 of the GREAT Act (the counterpart of s 197B): see Donlan (at [14]) and Lambert (at [69]). 83Thirdly, and without seeking to engage in taxonomy (see Kostas at [89]), the jurisdictional ambit in the present matter, namely, a 'decision on a question of law' would seem to be a narrower class of appeal than that considered by the Court of Appeal in Azzopardi (see Lambert at [58] and [59]), thereby permitting a comfortable margin for applying those principles to the aspects of the Commissioner's decision presently under consideration. 84It follows from the principles stated in Azzopardi that a primary finding of fact will not be amenable to appeal under s 197B(1), even if it may be said to be against the weight of or not reasonably open on the evidence (including where the competing evidence is strongly against the finding made below) or if it is infected by unsound reasoning (such that no reasonable person may have reached the conclusion). So, too, are perverse primary findings of fact protected from review under statutory appeals limited to questions of law. 85It might be noted that this appeal did not attract a submission that a finding of fact by the Commissioner was perverse as such (although the appellant did make a submission of that character with respect to what the appellant contended was the Commissioner's finding of an alternate motive for requiring the respondent to submit to a medical assessment). In this respect, reference may be made to Kirby J's observation in Roncevich (at [68]), "if 'perverse' findings of fact are protected from disturbance by courts limited to a jurisdiction confined to correcting errors on questions of law, a conclusion which is far from 'perverse' is even more obviously protected from disturbance". 86Upon the authority in Azzopardi, an ultimate finding of fact may nonetheless reveal an error of law in the following circumstances: (1)Where it appears that the trial judge has, in an ultimate finding of fact, "defined otherwise than in accordance with law the question of fact which he has to answer". (2)Even in the absence of misdirection of that kind, an ultimate finding of fact may reveal an error of law if the primary facts found "are necessarily within or outside a statutory description and a contrary decision has been made". However an erroneous conclusion that facts properly determined fail to satisfy a statutory test will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not as a matter of law because no other application is reasonably open. It would appear that the same principle may be applied in relation to a common law test such as is found in the present case. (3)Where a party not bearing the onus of proof on a question establishes there was no evidence of a primary fact in issue. 87Accordingly, the IR Act does not allow this Court to correct an error of fact under s 197B, except to the extent the finding of an ultimate fact below reveals an error of law in the manner contemplated above. 88With these principles borne steadily in mind the second basis of the appellant's contentions may be evaluated. 89The starting point for that analysis is a recognition that the appellant did not contend that the Commissioner erred in his conclusion that the Director-General may, at common law, make a direction to attend a medical assessment and that the validity of the exercise of that power was dependent upon the reasonableness of the direction. 90In my view, and in that context, the proper characterisation of the Commissioner's determination of the reasonableness of the directions is that of a finding which involved the application of the law (in this case the agreed common law principles) to primary facts in order to reach an ultimate conclusion of fact (see Azzopardi at 157). Thus, the determination of reasonableness was the ultimate finding of fact in relation to the legal question resolved by the decision referred to in par E (e) of the Notice of Appeal. 91The veracity of this conclusion (as to the nature and character of the subject decision by the Commissioner) is implicitly recognised by the inclusion in the bracketed section of par E (f) of the Notice of Appeal to which I referred above. As the appellant's submissions demonstrate, this pleading was plainly in reference to primary findings of fact. 92This conclusion is supported by the authority. First, there is the judgment of Madgwick J in Blackadder to which I have referred above. Secondly, by analogy, in Collector of Customs v Agfa-Gervaert Limited [1996] HCA 36; (1996) 186 CLR 389 (at 395-396), it was held that "when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or not is one of fact". 93This conclusion does not, in itself, dispose of the appellant's second contention. As I will find at the conclusion of the discussion, the principles in Azzopardi preclude from a statutory appeal confined to decisions on a question of law an appeal against primary findings of fact, per se, however those challenges are advanced in argument so as to appear as questions of law. Nevertheless, upon the principles in Azzopardi, the ultimate finding of fact as to reasonableness may reveal an error of law, even though, the application of such principles to the second basis advanced by the appellant in the present case ultimately supports no such finding. The reasons for that conclusion appear below. 94First, in Azzopardi, Glass JA found that an error of law may be revealed where a decision-maker has misdirected himself by defining otherwise than in accordance with law the question of fact which must be answered (at 156). As mentioned above, it was not argued here that the Commissioner applied the wrong test as to whether the validity of the exercise of the common law power to direct an employee was dependent on the reasonableness of the direction. The Commissioner did not, therefore, define otherwise than in accordance with law the question of fact he had to answer. 95Secondly, in the absence of a misdirection of the kind referred to in the previous paragraph, Glass JA found that an ultimate finding of fact may nevertheless reveal an error of law "if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made" (at 156). No such issue arose in the present matter. 96Even if the Commissioner reached an erroneous conclusion that the primary facts (properly determined) failed to satisfy that a common law power to direct (vis á vis the reasonableness of the direction) was invalidly exercised, that determination would only represent an error of fact. It could not be (and was not) contended that an alternative finding to that made by the Commissioner was the only one available. As will be later discussed, the Commissioner addressed "relevant indicium" in order to make a determination of the issue which was before him. 97At first instance, the Commissioner found, in essence, that the directions were unreasonable because there was no "functional requirement" to seek a medical assessment in the circumstances, given that the respondent was not suffering from an ongoing psychiatric condition and the Department had no intention of compelling her to resume work in the CPD. The finding that the directions were unreasonable was an available conclusion upon those findings. 98Thirdly, there was no suggestion here that there was no evidence whatsoever to sustain the Commissioner's findings. 99It follows that, in accordance with applicable principles, the decision of the Commissioner as to the ultimate fact (qua the reasonableness of the directions) does not reveal an error of law and, by dint of that conclusion, is not a decision which is amenable to appeal under s 197B of the IR Act. 100I have earlier set out in [93] of this judgment why the manner by which the appellant formulated the remainder of the challenges to the Commissioner's decision was impermissible, having regard to the limitation of the statutory appeal under s 197B of the IR Act, as they represented attacks upon the primary fact finding of the Commissioner which, to use the words of Glass JA in Azzopardi (at 155), relied upon "various pejorative expressions" possessive of a single and interchangeable meaning to denote an erroneous finding of fact. As Glass JA observed at 155 to 156: To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways...any argument that the finding of a Workers' Compensation Commission judge is vitiated in [that] way discloses no error of law and will not constitute a valid ground of appeal. 101The aptness of Glass JA's description of challenges to findings of fact to the appellant's contentions may be readily demonstrated in the present case. 102The appellant's contention that the Commissioner 'misunderstood' the evidence is, in substance, a submission that the Commissioner's findings were contrary to the overwhelming weight of the evidence, primarily, in that respect, it may be presumed, his finding that, based upon the medical evidence, the respondent was not suffering from an existing psychiatric condition. 103The remaining challenges variously contended that the findings were made against the weight of the evidence, lacked probative force, or failed to take into account particular aspects of the evidence, such that the assessment of the evidence was unreasonable. 104This may be illustrated by reference to the appellant's submissions as summarised in [69] of this judgment. 105The challenge outlined above in [69(1)] seeks to contradict a finding made by the Commissioner that the respondent was not suffering from an existing psychiatric condition. Having regard to the medical evidence, the appellant contended that the Commissioner's conclusion was against the weight of such evidence. 106By the submissions outlined in [69(2)] above, the respondent contended that the Commissioner ignored the probative force of the evidence and pointed to an alternative hypothesis as to why a medical assessment was sought (although it might be noted that the Commissioner's conclusions were predicated upon the fact that an assessment of such suitable duties was unwarranted because of the absence of an ailment requiring assessment by a psychiatrist and the prior determination of the Department that it was unnecessary to place the respondent in the CPD). 107As to [69(3)] the contention seems to be that the Commissioner did not make a reasonable assessment of or properly understand the basis upon which a medical assessment may be sought (although similar observations may be made as with respect to [69(2)] above. 108According to the principles in Azzopardi, these elements of the appellant's case demonstrate that the appellant's contention merely sought to vitiate the decision at first instance by means of the correction of errors of fact and not law. 109For completeness, it might be noted that the appellant did not support, by submission, that component of the bracketed section of par E (f), which pleaded that the Commissioner had taken into account irrelevant considerations. 110A further matter is appropriate to mention in this respect. 111The appellant contended that the Commissioner found that the Human Resources branch of the Department may have sought a medical assessment of the respondent by a psychiatrist "because of the extreme and colourful nature of her allegations of corruption", rather than as a result of any "ongoing psychiatric illness" (by reference to [148] of the decision below). However, this contention misunderstands the conclusion of the Commissioner in this respect. True, it is, the Commissioner contemplated the motivations of the Department in directing the respondent to attend a medical assessment in circumstances where, upon his findings, there was no reason to do so based on the materials provided by the respondent's doctors. Nevertheless, he expressly eschewed drawing a conclusion of the kind contended for by the appellant because of his prior determination that such issues, which related to the correspondence sent by the respondent to the Director-General, particularly the December and January letters, were irrelevant to the disposition of the appeal below (due to his findings as to the test or the relevant questions applicable to the exercise of his power under Pt 7 of the IR Act). In fact, the Commissioner stated that, if the HR branch was motivated by the respondent's correspondence it would be "not at all to the point". Whilst this is further suggestive of the Commissioner's erroneous approach in excluding from consideration the December and January letters, it is not reflective of a ruling of the character the appellant sought to impugn. 112There are two final considerations with respect to par E (f). 113First, I note that counsel for the respondent submitted that, at worst for her case, the question of the reasonableness of the direction represented a mixed question of fact and law. Some support for that contention lies in authority concerning unfair dismissal matters (see Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117 ('Burge') and Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at pp 181 and 182) and, for that reason, may not be apposite in the present context. 114In any event, if a decision as to the reasonableness of the directions issued by the Director-General did constitute a mixed question of fact and law, it would nonetheless not be amenable to an appeal brought under s 197B. A mixed question of fact and law would be amenable to review where the statutory gateway for an appeal concerned "a question with respect to a matter of law" (see Kostas at [25]) but would not, in my view, extend to the present class of statutory appeal. This is because, as the Court held in Kostas (at [24]), the "extent of the term "a question with respect to a matter of law" is controlled by the words 'with respect to'", whereas a 'decision on a question of law' is, by contrast, more strictly limited by its terms, as earlier discussed in this decision. 115Secondly, as to the Commissioner's determination that the directions issued by the Director-General were unreasonable, it may be recalled that in Azzopardi (at 157), Glass JA concluded the following as to the first ground of appeal in that case (which was extracted above): ...As it happens, the three objective facts on which reliance was placed in making the finding below are in my opinion capable of being supported by evidence which the trial judge did not misapprehend. But I do not propose to quote chapter and verse in support of this opinion since this would involve a resort to the evidence to answer a question which not being a question of law cannot be raised and calls for no answer. 116That same conclusion is available in the present case. To use the language of Kirby P in Azzopardi (at 152), the considerations entertained by the Commissioner as to the conclusion that the directions were unreasonable appear to be "relevant indicium" to determine the central question that he posed for himself, namely, whether the respondent's direction to attend a medical assessment by the Director-General was reasonable. 117The Commissioner concluded that there was no warrant to direct the respondent to attend a medical assessment as, relying on the evidence of or inferences drawn from the report of Dr Dowda and the certificates provided by Dr Nguyen, both of which attested to the respondent's fitness for work outside of the CPD, she was not suffering an existing psychiatric condition. In fact, Dr Dowda expressly stated that the respondent was "medically...fit for work" and was able to work within both her substantive position of Senior Business Support Officer and in the position that she temporarily occupied in the Crown Solicitor's Office "without restriction or limitation", yet recommended that she not resume work in the CPD due to the "unresolved interpersonal/human resources issues that have apparently festered on from the time of instigating the workplace grievance". In circumstances where the appellant had expressly disavowed an intention of challenging the only relevant restriction on the respondent undertaking her duties, which was an incapacity to work within the CPD or the building in which it was located, there was, therefore, evidence to sustain the Commissioner's conclusion that for the Director-General to direct the respondent to a medical assessment was unreasonable. Each of those indicia constituted evidence supporting the hypothesis that the Commissioner came to in his decision. 118It cannot be said, in my view, that the Commissioner's reasoning was unreasonable, irrelevant or illogical. It is irrelevant, upon the authority in Azzopardi, whether any other conclusion, even if demonstrably preferable, may have been reached from those findings of fact. 119In my view, as observed above, the decision relied on by the appellant in par E (f) of the appeal (to sustain ground H (1)) does not represent a decision on a question of law and is not amenable to the jurisdiction of the Court. Ground H (1) - Pleading E (e) 120I return then to par E (e) of the pleadings. As noted above, the appellant did not distinguish just how this issue might stand apart from the pleading in ground H (1) by reference to par E(f) and, indeed, made common submissions in both respects. That approach is perhaps understandable, but is fatal to the challenge brought to the decision in par E (e). 121In conformity with the analysis earlier undertaken, the starting point in reviewing par E (e) must be the true nature of the question raised by that challenge. The absence of a challenge by the appellant to the Commissioner's finding that the lawfulness or validity of the exercise of the common law power of the Director-General to direct the respondent to attend a medical assessment was dependent upon a finding as to reasonableness of the direction must result, as a matter of logic, in the conclusion that the question posed in par E (e) is dependent in every relevant sense (with respect to common law power) to the determination of the question raised by par E (f). The resolution of the challenge in par E (e), thereby, ultimately turns upon the resolution of whether it was open for the Commissioner to find that the directions were reasonable. That is a question of fact, not law. 122As was stated by Cripps JA in Valuer-General v Dobrel Pty Ltd (1993) 79 LGERA 334 at 340: The circumstance that a decision on the facts is perceived as a determination of a principle of law cannot turn a question of fact into a question of law. Notice of Contention 123The appellant contended that the notice of contention was "misplaced", but did not identify any clear basis for this submission. 124It would appear that a notice of contention of the character filed by the respondent is available in the present circumstances (pursuant to the Industrial Commission Rules 2009, r 8.5 and the Uniform Civil Procedure Rules 2005 (NSW) ('the UCPR') r 51.40) as it seeks to affirm the decision of the Commission on a different legal basis than that relied upon by the Commissioner below. 125In Décor Ceilings Pty Limited v Cox Constructions Pty Limited [2005] SASC 146 at [37], Besanko J observed that: Although a respondent to an appeal cannot by way of a notice of contention raise a challenge to the arbitrator's findings of fact, I do not think that there is anything in the terms of s 38 of the CAA which prevents the raising of a question of law in a notice of contention as long as the question of law is used in a purely defensive way. The considerations identified by Lord Steyn in the passage set out above are important and I think a respondent can raise a question of law in a notice of contention provided it is used in a purely defensive way and its effect is not dependent on overturning any of the arbitrator's findings of fact. For example, if a successful party before an arbitrator succeeded in showing a contract was void for illegality but did not succeed on its alternative argument that there was no contract because there was no offer and acceptance faces an appeal with leave by the unsuccessful party, then, providing the question of law about no offer and acceptance does not arise only if findings of fact are overturned, I see no reason why it cannot be raised in a notice of contention. 126It is reasonably clear that the notice of contention sought to preserve the Commissioner's decision that the directions to attend a medical assessment were invalid in the event that the attack upon the Commissioner's principal findings as to the reasonableness of an exercise of power at common law succeeded. Thus, it was contended, contrary to the ruling made by the Commissioner below, the 2009 Regulation is a code exclusively dealing with the power to give direction of that kind, such as to render redundant any successful challenge to the failure to properly exercise any common law power. 127What is less clear is the utility of that challenge when the Commissioner, in fact, made an alternative finding as to the invalidity of the exercise of powers under the 2009 Regulation. 128Whatever may be the basis upon which the notice of contention proceeds, it appears now to be largely spent by the aforementioned ruling that the challenge to the decision as to the direction in the pleadings in par E (f) (per ground H(1)) was not available under s 197B and, the challenge to the decision in par E (e) was thereby rendered nugatory. 129For completeness, two matters require mention. First, I note that, if required to rule upon the contention, I would have reached a conclusion contrary to that propounded by the respondent, in reliance upon the reasoning of the Commissioner at first instance at [122] to [128]. 130Secondly, the notice of contention could never, as it purports to do, sustain the Commissioner's decision on this alternative ground as the absence of a 'finding' of misconduct did not, as I will later find, end the inquiry the Commissioner was required to make under s 100C of the IR Act. Leave to Appeal 131Despite the form of the Notice of Appeal as an application for leave to appeal, and substantial components of the submissions of the parties being directed to whether leave to appeal should be granted, I have some reservations as to whether, in law, leave to appeal is required to bring an appeal under s 197B of the IR Act in consequence of the passage of the IR Amendment (IC) Act. 132Prior to the IR Amendment (IC) Act appeals lay to a Full Bench of the Court. Such appeals required the grant of leave to bring an appeal by virtue of the words "subject to this Part" in s 197B (being a reference to Pt 7 of the IR Act) importing the requirements of s 188 of the IR Act which, in turn, provided that an appeal to the Full Bench was only by leave. 133By the IR Amendment (IC) Act, appeals brought under s 197B are now heard by a single Member of the Court. That reform would seem to have the consequence of removing any requirement for leave. Whilst s 197B still provides that the section is subject to Pt 7, s 188 would no longer seem to have the effect of requiring the grant of leave to appeal as that provision is limited in its operation to an appeal to 'a Full Bench of the Commission'. Section 197B does not itself impose a condition that leave is required to bring an appeal (and no other provision of Pt 7 has that effect). 134Nonetheless, I shall refrain from providing any definitive ruling upon that question for two reasons. First, the issue only came to attention during the course of the appeal upon this issue being raised by the Court. The parties submissions on the question remained somewhat underdeveloped. Secondly, if leave to appeal were required, I would, in the circumstances of this matter, grant it. In this sense, the answer to the question is unnecessary and should await an appeal in which more comprehensive submissions are received and the question is ripe for determination. 135The primary reason why leave should be granted is that the appeal raises substantial issues of law or principle: see Knowles (1999) 95 IR 380 ('Knowles'). The appeal raises significant questions as to the functions of the Commission under Pt 7 of Ch 2 of the IR Act. Whilst the nature of a counterpart jurisdiction in GREAT under Pt 5 of the GREAT Act was well settled by a line of judgments of the Court of Appeal culminating in the recent judgment of the Court of Appeal in Lambert, the appeal nonetheless raises questions about the application of those authorities under Pt 7 of the IR Act, particularly in a context where the decision below delineates the functions of the Commission under that Part (albeit without recourse to Lambert) upon the basis of the nature of the function or obligations of employees (vis á vis fiduciary responsibilities) in reliance upon the authority in Duhbihur. Further, as I will discuss below, the respondent raised a substantial question (as the parties joined issue over its defence of the appeal) as to whether the protective function of the Commission under Pt 7 is dependent upon findings of misconduct. It follows that I do not accept the contention advanced by the respondent in her narrative on leave to appeal that leave should be refused because the appeal merely seeks to "re-canvas well-laid principles". 136In other circumstances those conclusions would also be buttressed by the consideration that the resolution of the questions raised would have widespread practical application (see Knowles at 382). However, it is difficult to estimate (in the absence of the submissions bearing upon the question) the extent of any such impact, as the passage of the GSE Act may affect changes in public service disciplinary systems and, thereby, alter the application of the principles in Lambert. It is suffice to say, in that respect, that the resolution of the questions in this matter may better elucidate the functions of the Commission under the GSE Act. 137Two issues raised by the respondent against the grant of leave should receive particular attention. 138First, it was contended that the appellant ran an entirely fresh case on appeal. In particular, it was contended, in reliance on Knowles and Coulton, with respect to the first group of decisions appealed against, that the appellant did not argue below that the jurisdiction to be exercised by the Commissioner was protective or that it was erroneous in that context for the Commissioner to only determine whether the conclusions as to misconduct were made out (and, if so, whether the punishment was excessive). Further, as to the second group of decisions, the appellant should not be permitted, it was contended, to rely upon the common law as the source of the Director-General's power to direct the respondent to a medical assessment as the case run below relied entirely upon the regulations (reliance which the appellant now concedes was misplaced). 139The factor which primarily stood in contradiction of the respondent's case in this respect was that the Commissioner ruled upon the questions of law which the respondent contended were not adequately ventilated by the appellant below. 140True, it is the appellant's attack on those determinations brought to account authorities which had not been advanced to the Commissioner, but the appellant's case on appeal does not introduce entirely fresh issues as contemplated in Knowles. Further, the appellant did join in the issue below at least to the extent of raising that the Commission was required to consider in the appeal the December and January letters; a contention he rejected based upon his understanding of the jurisdiction he exercised. 141The judgment in Knowles primarily concerned, for present purposes, the refusal of leave where a party had raised an entirely fresh case on appeal. A primary consideration, in that respect, was the avoidance of appeal proceedings where the Full Bench did not have the benefit of reasoning below as to the matter ventilated upon the appeal. 142These factors either do not exist or their potency is significantly reduced in this appeal. The Court has the benefit of reasoning on the issues below and the appellant contributed to argument as to those issues in at least one material respect which is critical to the appeal it now brings before the Court. The inadequacies in the case below do not, in those circumstances, outweigh the significant public interest in having the issues raised within the appeal addressed by the Court. 143The respondent does not clearly explain why the failure by the appellant at first instance to seek to sustain the directions of the Director-General found upon common law power should result in the refusal of leave to appeal. 144It is perhaps thought the appellant's reliance upon the common law to sustain the directions on this appeal was opportunistic. However, the appellant's position below can hardly be described as the product of some forensic manoeuvre. The issue was effectively raised below by the Commissioner and was the subject of a ruling adverse to the respondent's contentions. Furthermore, it is difficult to see how a contention may be advanced that the appellant raised a fresh issue on appeal in that context. It may not itself have ventilated the issue but the issue was joined in the proceedings below by the respondent's approach to the matter and, as I have mentioned, the subject of a ruling. It is available to the appellant to seek to sustain the opinion reached by the Commissioner on appeal, in circumstances where the appellant is effectively responding to a matter addressed by the Commission itself below. 145Secondly, the respondent contended that, even if the Commission were to conclude that the jurisdiction exercised under Pt 7 was protective in nature, contrary to the views expressed in general terms by Commissioner Newall, there was no occasion for the exercise of the protective jurisdiction in the instant case because the Commission found that there was no misconduct by the respondent. It would appear that this argument was advanced in relation to the question of leave either on the basis that, in substance, the appeal lacked merit in this light or that the appeal lacked utility because, even if it were found that the Commissioner applied the wrong test or asked the wrong question, there would be no impact on the final disposition of the appeal. 146There are three reasons to reject these submissions as a basis for the refusal of leave. First, the utility of the appeal is, in part, provided by the very submissions advanced by the respondent in this respect. The resolution of that issue is of some real significance to this aspect of the Commission's jurisprudence and should be resolved by judicial determination. It cannot be properly divorced from the principal issues raised on the appeal as to the true nature of the Commissioner's jurisdiction under a Pt 7 appeal. Secondly, whilst the resolution of this issue may theoretically be delivered in a judgment on leave itself, I do not consider that this is an appropriate occasion to do so, given, as I mentioned above, the interconnectedness of this issue with other issues raised on the appeal about which leave will be granted. Thirdly, and more significantly, as will be later discussed, the proposition lacks substance. 147The combination of these considerations warrants, in my view, the grant of leave to appeal. The First Group of Decisions on Questions of Law: Pleadings E (a), (b) and (c) and Ground H(1) What is the nature and scope of a statutory appeal under Pt 7 of the IR Act? 148The appellant contended that the jurisdiction exercised by the Commissioner at first instance was protective in nature and, in consequence, could not be confined to a punitive jurisdiction in which the sole question was whether the employee engaged in misconduct. Reliance was placed, in this respect, substantially upon, as earlier observed, the judgment of the Court of Appeal in Lambert and, to a lesser degree, upon contentions as to the legislative history of public sector disciplinary processes. 149The respondent's rejoinder was essentially, as I have mentioned, founded upon the contention that, in the absence of misconduct, the application of a protective jurisdiction would not arise. In this sense, the respondent did not explicitly contend that the nature of the Commission's jurisdiction under Pt 7 of Ch 2 of the IR Act was not protective (in fact, as earlier observed, the respondent appeared to concede the opposite was the case), but contended that it did not apply in the present context. 150To this issue may be added the question raised in the Commissioner's decision (but not squarely by the respondent) as to whether the nature of the respondent's position with the Department (it not being fiduciary in nature) would impact upon whether the applicable jurisdiction was protective or punitive. 151As earlier found, the appellant correctly submitted that the Commissioner's decision was based upon his conclusion that the jurisdiction he exercised was punitive in nature and, therefore, it was appropriate to confine the question he was required to consider solely to "whether the misconduct said to be the basis for punishment [was] made out" (other than the related question, also concerning punishment, that, if misconduct was made out was the punishment imposed appropriate?). 152I will find that the Commissioner erred in law in finding that, first, the jurisdiction or function of the Commission under Pt 7 was punitive in nature and, secondly, that the question he was required to address (other than the appropriateness of the punishment meted out) was whether the misconduct, the basis for punishment, was made out, to the exclusion of other considerations properly requiring assessment under s 100C of the IR Act and the exercise of a protective jurisdiction. 153The nature and character of that function does not transform because the employee concerned does not have fiduciary obligations. Further, that jurisdiction or function was not dependent upon a finding by the Commissioner that the respondent had engaged in misconduct. I will reject the respondent's contention that a finding of misconduct in an appeal under Pt 7 is a precondition to the Commission's exercise of a protective jurisdiction or that the protective function is only applicable to a disciplinary sanction after misconduct is found. 154Whilst the decision in Lambert is not strictly binding in the present context, in my view, when the provisions of Pt 7 of the IR Act are considered in the light of the reasoning of the Court of Appeal in that judgment, it must be taken as having a compelling influence upon the resolution of the question raised in these proceedings as to the nature of the jurisdiction to be exercised by the Commission under Pt 7. That conclusion is a fortiori when viewed in the light of the terms and legislative history of Pt 7 of the IR Act. It follows that I do not consider that the judgment in Lambert may be distinguished in this matter upon the basis of the authority in Duhbihur or, as contended by the respondent, vis á vis the contention as to the findings of misconduct. The Applicability of Lambert 155The question as to the applicability of the opinions expressed in Lambert in the present statutory context should commence with a comparison between the statutory scheme for public sector disciplinary processes operating at the time of the respondent's dismissal and those considered in Lambert together with a comparative analysis of the provisions concerning appeals from disciplinary proceedings. 156The respondent was appointed, after a period of temporary employment, as an officer under Pt 2.3 of the PSEMA (see ss 21 and 23). That was her employment status at the time of her dismissal. Disciplinary processes, culminating in her dismissal, were undertaken by the Director-General pursuant to Pt 2.7 of the PSEMA. Relevant to these disciplinary processes were the following provisions of Pt 2.7 of the PSEMA: 41 Objects of Part The objects of this Part are as follows: (a) to maintain appropriate standards of conduct and work-related performance in the Public Service, (b) to protect and enhance the integrity and reputation of the Public Service, (c) to ensure that the public interest is protected. ... 42 Definitions (1) In this Part: disciplinary action, in relation to an officer, means any one or more of the following: (a) dismissal from the Public Service, (b) directing the officer to resign, or to be allowed to resign, from the Public Service within a specified time, (c) if the officer is on probation-annulment of the officer's appointment, (d) except in the case of a senior executive officer-reduction of the officer's salary or demotion to a lower position in the Public Service, (e) the imposition of a fine, (f) a caution or reprimand. ... 43 Meaning of "misconduct" (1988 Act, s 66) (1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following: (a) a contravention of any provision of this Act or the regulations, (b) performance of duties in such a manner as to justify the taking of disciplinary action, (c) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (d) taking any action against another officer that is substantially in reprisal for an internal disclosure made by that officer. (2) For the purposes of this Part, the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened: (a) while the officer concerned was not on duty, or (b) before the officer was appointed to his or her position. (3) In this section, internal disclosure means a disclosure made by an officer regarding the alleged misconduct of another officer belonging to the same Department as that to which the officer belongs. ... 46 Dealing with allegations of misconduct (1) If an allegation is made to the appropriate Department Head that an officer may have engaged in any misconduct, the appropriate Department Head may: (a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or (b) decide that it is appropriate to take remedial action with respect to the officer. (2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the appropriate Department Head may, if the Department Head is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer. (3) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking. (4) Even though the appropriate Department Head decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Department Head may, at any stage of the process: (a) decide to take remedial action with respect to the officer concerned, or (b) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter, or both. (5) A decision under this section by the appropriate Department Head to take remedial action with respect to an officer does not, if it appears to the Department Head that the officer may have engaged in any misconduct while the remedial action is being taken, prevent the Department Head from dealing with the alleged misconduct as a disciplinary matter under this section. 157Those provisions are in identical terms to those applying to the dismissal of Mr Lambert (a Residential Support Worker, Level 3 employed by the Department of Ageing, Disability and Home Care ('the DADHC')) and considered in Lambert. 158The appeal in Lambert was brought pursuant to s 54 of the GREAT Act (which finds its counterpart in s 197B of the IR Act). The GREAT Act was repealed by the Industrial Relations Amendment (Public Sector Appeals) Act 2010 ('the IR Amendment (PSA) Act'), which commenced on 1 July 2010. 159Schedule 1 of the IR Amendment (PSA) Act inserted the provisions of Pt 7 of Ch 2 into the IR Act. Appeals in public sector disciplinary proceedings have thereafter been heard before the Commission. 160The counterpart right of appeal provision to s 24 in of the GREAT Act appears in s 98 of the IR Act, as follows: 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. (2) Such an appeal may be made on the ground that the decision appealed against was made substantially in reprisal for a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994. (3) However, employees of the following classes cannot appeal to the Commission against an appealable decision referred to in section 97 (1) (d), (f) or (g): (a) employees engaged under a contract of employment for: (i) a specified period of time that is less than 6 months, or (ii) a specified task that is of less than 6 months duration, (b) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either: (i) the period, or the maximum duration, is 3 months or less, or (ii) if the period, or the maximum duration, is more than 3 months-the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment and the statutory provisions relating to the probationary appointment of the employee concerned, (c) employees engaged on a casual basis for a short period except those who: (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the decision of the employer, have had a reasonable expectation of continuing employment with the employer. 161The relevant powers of the Commission under Pt 7 of the IR Act were specified in s 100C (the counterpart for which was s 48 of the GREAT Act). Section 100C was in the following terms: 100C Decisions with respect to appeals (1) The Commission, in relation to a promotion appeal, may decide to allow or disallow the appeal. (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. (I note that s 100C(1) was repealed by the GSE Act.) 162The provisions of the IR Act are not identical in form to their predecessor provisions in the GREAT Act (there being some structural and definitional changes arising from the transfer of the provisions into the IR Act). However, there is not discernible from Pt 7 of the IR Act any intention in the legislature to alter the substance of the provisions of Pt 3 of the GREAT Act (and, in particular, Div 2 which dealt with disciplinary appeals). Sections 98, 100C, 100D and 197B of the IR Act repeat the terms of ss 24, 48, 48A and 54, save for immaterial differences associated with, as I have observed, structural and definitional changes including the establishment of the Commission to deal with disciplinary appeals. 163The similarity of those legislative schemes for the discipline of public sector employees (and appeals in relation to the same) gives a firm foundation for the adoption of the jurisprudence as to the former legislative scheme in the present statutory context. That conclusion shall, in my view, result in Lambert being followed in the present proceedings (noting, that, as discussed below, the judgment may not be distinguished from the present case). The reasons for that conclusion may be stated, more fully, as follows: (1)In substantial part, it is unnecessary in this instance to consider re-enactment principles or principles associated with the re-enactment of a statutory provision (or words of a provision) after the provision has been the subject of judicial interpretation: see Electrolux Home Products Pty Ltd v Australian Workers' Union and Others [2004] HCA 40; 209 ALR 116 at [8]; [81]; and [162] (per Gleeson CJ, McHugh J and Gummow, Hayne and Heydon JJ respectively) ('Electrolux v AWU'); Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [63] ('Foots') and WorkCover Authority of NSW (Inspector Belley) v Freight Rail Corporation [2002] NSWIRComm 281 at [61]-[62] (per Haylen J) ('Belley v Freight Rail'). The disciplinary scheme operating at the time of Lambert was, as I have noted, identical to that operating with respect to the respondent. Indeed, the judgment of Hodgson JA in Lambert (Tobias J agreeing in this respect) was predicated upon the provisions of Pt 2.7 of the PSEMA and particularly s 41, which, as previously noted, remained unaltered at the time that disciplinary action was taken with respect to the respondent. (2)Subsequent to Lambert, there was enacted the Public Sector Employment and Management Amendment (Ethics and Public Service Commissioner) Act 2011, which identified the 'core values' for the public sector. This does not vary the force of the observations in the preceding paragraph as that Act did not alter the objects outlined in s 41 of the PSEMA and, in fact, emphasised the primacy of the public interest in public sector work. (3)Nothing in the other provisions of the IR Act would alter that conclusion. The requirement in s 146(2) of the IR Act for the Commission to take into account the public interest "in the exercise of its functions" (which must include those exercised under Pt 7 of Ch 2 of the IR Act) seems only to strengthen those conclusions. (4)The provisions of Pt 3 of the GREAT Act were re-enacted in Pt 7 of Ch 2 of the IR Act, as mentioned above, in similar terms to those found in the original Act. Whilst doubt has been cast on the principle of re-enactment (see Pearce and Geddes, 'Statutory Interpretation in Australia' (7th ed, LexisNexis Butterworths) at 111 to 113), it would appear that the re-enactment principles are applicable in the present context. The provisions of the amending Act were passed only one year after the judgment in Lambert had made a significant pronouncement about the functions of GREAT under Pt 2.7 of the PSEMA and Pt 3 of the GREAT Act. Any further doubt as to whether the Parliament may be presumed to have known of the judgment in Lambert may also be displaced by recognition that it emerged in relation to statutory powers administered by a specialist tribunal in a politically sensitive area (namely, industrial relations and public sector employment: see references to Electrolux v AWU and Belley v Freight Rail above). (5)In any event, the Second Reading Speech of the IR Amendment (PSA) Act, as Commissioner Newall observed, made it clear that the jurisprudence previously exercised by the Government and Related Employees Appeals Tribunal ('GREAT') was not altered by the incorporation of the relevant provisions into the IR Act. The Second Reading Speech contained the following explanation: The Government recognises that public sector promotional and disciplinary appeals are unique issues, quite distinct from general industrial disputes, and that resolution of these matters requires a tailored approach. For this reason, the bill will not affect the fundamental principles which underpin the existing public sector appeals framework. Nor will it alter the format and style of hearing practices that have been refined over time and which public sector employees, employers and their representatives are familiar with. The bill preserves current hearing processes for both informal and formal appeals under the Government and Related Appeals Tribunal Act and the Transport Appeals Boards Act, while granting the commission sufficient flexibility to make adjustments to suit prevailing operational and administrative requirements (Hansard, Legislative Council, 23 June 2010). (6)Whilst the judgment of Basten JA was predicated upon a general notion as to the protective character of disciplinary processes of the kind here found, there is nothing, as I will ultimately find, which would warrant those general principles not being applied in the present case. The judgments in Lambert represent a significant contemporary evaluation of the previous legislative scheme by a superior court and are, with respect, correct. Further, the correctness of applying the principles in Lambert to the present statutory context is reinforced by an examination of the legislative history of disciplinary processes within the civil service and public sectors. I accept, in the broad, the analysis of this history provided by the appellant, in this respect, as set out in the summary of its submissions. 164A consideration of the decision in Lambert is, therefore, apposite to the disposition of the present case. I will now, therefore, review the relevant findings of Hodgson and Basten JJA in that case. 165Mr Lambert was dismissed by the Deputy Director-General of the DADHC as a result of misconduct (in particular, inappropriate physical contact with clients of that Department). He challenged the findings of misconduct in an appeal to GREAT, where the allegations were, for the most part, substantiated. However, whilst GREAT concurred with the decision-maker that Mr Lambert lied to the investigator during the disciplinary process, it nonetheless found he had not 'attempted to deceive' the investigator and the tribunal. GREAT set aside the dismissal, and substituted orders that Mr Lambert be reinstated with conditions. 166DADHC appealed to the Court of Appeal, contending that, inter alia, whilst GREAT noted that the applicable jurisdiction was protective rather than punitive, and explicitly referred to Donlan and New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 184 and to s 41 of the PSEMA in that regard, it failed to properly and appropriately exercise its protective jurisdiction. Further, it was contended that GREAT erred by asking itself the wrong question when it inquired into whether dismissal was the appropriate punishment in all of the circumstances. 167After setting out the relevant provisions of the PSEMA and the GREAT Act, to which I have earlier referred, Hodgson JA turned to consider a number of questions, the first of which were: (a)Did the Tribunal ask itself the wrong question? (b)Did the Tribunal take into account irrelevant factors? 168As to the first question, Hodgson JA found that, although some of the considerations of GREAT as to mitigating factors were not relevant to the question of the appropriate protective measures to be taken, it should not be inferred that the GREAT had disregarded its own statement that the function being exercised was protective and instead engaged in the consideration of what was appropriate as a punishment (particularly as the orders may have reflected appropriate protective measures) (see Lambert at [20] and [21]). 169However, as to the second question, Hodgson JA found that GREAT's identification of mitigating circumstances as a consideration did manifest a resolution as to whether such circumstances were relevant to the decision it should make in the discharge of its jurisdiction and, therefore, relevantly constituted a decision on a question of law (at [28]). His Honour observed as follows (at [29] and [30]): [29] It is common ground that, as stated by the Tribunal, the function being undertaken by it was a protective function ... [30] The disciplinary action taken by DADHC was under Pt 2.7 of the Public Sector Employment and Management Act, the objects of which are set out in s 41 of that Act. It is clear in my opinion that punishment of employees is not within those objects. ... 170Hodgson JA found, therefore, that, as those giving effect to powers under Pt 2.7 must not apply considerations in derogation of those objects, GREAT had made an error of law in treating some mitigating circumstances and other personal circumstances as relevant, since these factors neither ameliorated the seriousness of the misconduct or went to the question of whether there was likely to be misconduct in the future (at [32] to [35]). 171As earlier noted, Tobias JA agreed with Hodgson JA in this respect (at [47]). 172Basten JA approached the question of the nature and function of GREAT and disciplinary processes in a different manner but, nevertheless, came to the same conclusion as Hodgson JA, namely, that GREAT was required to exercise its discretion in a disciplinary jurisdiction, the purpose of which was protective (at [83]). Basten JA found that such a purpose was "well established in the disciplinary jurisdiction generally" (at [83]). His Honour noted, however, that it does not "necessarily follow that punitive effects may not be relevant in formulating a protective order", as such effects "may be directly relevant to the need for protection" (at [83]). Basten JA found that, as GREAT had considered the personal circumstances of Mr Lambert for the purpose of diminishing the punitive effects of any order upon him, it took into account irrelevant considerations, which constituted an error of law (at [84]). 173In summary, the decision of the Court of Appeal in Lambert confirmed that the jurisdiction being exercised by GREAT with respect to an appeal arising from disciplinary action undertaken pursuant to Pt 2.7 of the PSEMA was, in conformity with the initial disciplinary action taken by the department head under that Part, protective in nature (as the tribunal had stated below in that case). "[A] person giving effect to powers given by Pt 2.7", namely, a department head or a Tribunal member, "must not apply other considerations in derogation of the objects in s 41" (Lambert at [31] per Hodgson JA). This finding corresponded with the broader jurisprudence concerning disciplinary appeals, which was taken as demonstrating that "the jurisdiction is entirely protective" (see Lambert at [85] per Basten JA). Whilst there may be a punitive element to disciplinary action in practice and indeed the punitive effects of disciplinary action may be relevant to the formation of a protective order, the proper application of the protective jurisdiction required that an order be defined by the "reasonable needs for protection" rather than by any alternative consideration and must materially serve that purpose more than any other available course of disciplinary action (see Lambert per Basten JA at [85] and Hodgson JA at [31]). 174It follows from the aforementioned analysis that the judgment in Lambert should be taken as the applicable statement of law governing the exercise of the Commission's powers under Pt 7 in the present matter, subject to the discussion under the following two primary headings. That same discussion will serve to expand upon the significance of ss 97, 98 and 100C of the IR Act for the disposition of appeals under Pt 7 of that Act and ultimately the disposition of this appeal. Is the protective jurisdiction only applicable to employees having or exercising fiduciary obligations or functions? 175In essence, the Commissioner formed the view that protective functions were only applicable to appeals brought under s 98 of the IR Act where the employee who was the subject of the discipline occupied a position with "fiduciary-like obligations and functions". There was nothing, it was found, in the PSEMA or the regulations which would suggest any basis for importing a protective jurisdiction with respect to the respondent given that she occupied a 'junior clerical' position. 176There are a number of reasons why this conclusion must be rejected: (1)Under the PSEMA, the Public Service (see s 6) consists of staff falling into three categories: officers, temporary employees and casual employees (see s 7(1)). The respondent was an officer at the time disciplinary proceedings were commenced against her and disciplinary action was taken by the Director-General in that context. No distinction is drawn in Pt 2.7 of the PSEMA between various positions, classes or grades of officers (see s 40). Nor do the objects in s 41 reflect a distinction based on the nature of the positions occupied by or functions performed by officers in the public service. (2)Duhbihur was not brought to the attention of the Court of Appeal in Lambert. In any event, the particular statutory scheme under which disciplinary powers were exercised in that case was materially different to the present one. Hall J found (in the passages relied upon by the Commissioner below) at [99], [100], [106] and [107]: 99 In the present matter, it is necessary to examine the interaction between the Transport Administration (Staff) Regulation and the Transport Appeal Boards Act. That Regulation applies to a disciplinary appeal which is defined as meaning an appeal under cl 17 or 33. Clause 13, in particular, entitled punishments in disciplinary proceedings provides that the "SRA may impose any one or more of the following punishments in disciplinary proceedings against an SRA officer ..." (emphasis added) which includes a range of limited sanctions or penalties rising up to dismissal. Clause 13 accordingly authorises disciplinary action by the SRA styled or entitled punishments. 100 The Transport Appeal Boards Act under which the plaintiff's appeal was brought is linked back to the 2000 Regulation, for "disciplinary appeal" in that Act is defined as meaning a disciplinary appeal within the meaning of the Transport Administration (Staff) Regulation, s 4(1). ... 106 There is, as earlier stated, in the case of the SRA, a statutory warrant to impose disciplinary action which is characterised as punishment. That chosen term, according to the Shorter Oxford English Dictionary imports the notion of suffering for an offence, the infliction of penalty as a retribution or caution against further misconduct. There is not to be found either within the last mentioned Regulation or the Transport Appeal Boards Act in their application to the plaintiff as a railway station duty manager, a basis for importing a protective jurisdiction of the kind and for the public purpose that existed in the cases of Evatt, Clyne, Hardcastle or Donlan. That is not to say that there could not exist a protective jurisdiction that is exercisable by the Board with respect to a limited class of employees to whom the Transport Administration (Staff) Regulation applies (eg, officeholders who are subject to fiduciary-like obligations). 107 It follows that the jurisdiction of the Board is not, at least with respect to the plaintiff and a large range of other employees, a protective one. (3)Section 4(1) of the Transport Appeals Board Act 1980 describes disciplinary appeals as a disciplinary appeal within the meaning of the Transport Administration (Staff) Regulation 2005. Clauses 13 and 17 of that regulation stand in stark contrast to the PSEMA as they refer to punishment. In particular, cl 13 enabled the employer to impose any one or more of several "punishments", including dismissal (cl 13(1)(e)), in disciplinary proceedings. Part 2.7 of the PSEMA nowhere refers to punishment, including in its objects, which refer variously to protecting and enhancing the integrity and reputation of the Public Service and ensuring that the public interest is "protected" (see, as earlier mentioned, the discussion by Hodgson JA at [30] and [31]). Part 2.7, therefore, establishes a different disciplinary regime to that which was found in the Transport Appeals Board Act 1980 and the associated regulation. The opinion of Hall J in Duhbihur, on that basis alone, cannot stand as authority for the opinion formed by the Commissioner in the present case. (4)It should be observed that Hall J's judgment did not turn entirely upon the axis of the statutory scheme that his Honour was considering but also upon broader concepts of the nature of the powers exercised in appeals from disciplinary processes. It was in this light, no doubt, that the appellant contended that Duhbihur was "probably wrongly decided", although the appellant expressly eschewed any suggestion that a view on that contention was required to be formed in the present proceedings. (5)The doubt expressed by the appellant as to the judgment in Duhbihur does finds support in the judgments of Hodgson and Basten JJA in Lambert. No distinction of the kind found in Duhbihur may be located in the judgment of Hodgson JA which, in my view, must be taken as drawing no delineation between employees performing fiduciary and non-fiduciary functions when his Honour stated (at [30]): "It is clear, in my opinion, that punishment of employees is not within these objects". As previously mentioned, Mr Lambert was a Residential Support Worker, Level 3. Whilst that position involved, as noted in the respective judgments of Hodgson JA and Basten JA, care for young women with mental disabilities, there is nothing in those judgments (or put in these proceedings) to suggest the officer exercised fiduciary duties of the character discussed by Hall J in Duhbihur (Hall J contrasted such obligations with those exercised by the appellant in that case, a Train Crew Assignment Officer). The position occupied by Mr Lambert was not a senior one. (6)As earlier observed, Basten JA adopted a different process of analysis to Hodgson JA by stating that the GREAT was required to exercise a discretionary judgment in a disciplinary jurisdiction, the purpose of which was, in that case, to allow for orders protective of the interests of vulnerable individuals in the care or control of the DADHC (see [83]). However, his Honour drew no distinction between class, position or occupation in depicting the disciplinary judgment as protective of the public interest. His Honour observed the following (at [83]), by reference to various authorities (such as Clyne v NSW Bar Association (1960) 104 CLR 186 at 201and 202 and Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 201): As is well-established in the disciplinary jurisdiction generally, including with respect to legal and medical practitioners, the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual (7)None of this discussion is to suggest that the nature and function of a position held by a public servant cannot, for the purposes of disciplinary proceedings under Pt 2.7 (and appeals therefrom), influence how the protective function may be exercised in the particular circumstances under which the conduct of an officer is being reviewed. However, this is a different approach altogether than one which would suggest the jurisdiction of the Commission under Pt 7 of Ch 2 was not protective in nature by virtue of this factor. The Significance of the Commissioner's Findings as to Misconduct The Questions Raised 177The discussion under this heading represents the culmination of a number of issues found within the body of the foregoing discussion. Those issues concern: (1)Whether the finding by the Commissioner that the respondent had not engaged in misconduct (in refusing the instruction and the directions) had the consequence that the Commission was not required to exercise a protective jurisdiction or function in the instant case (because the basis for a disciplinary sanction did not exist) and whether, in consequence, Lambert may be distinguished in its application in the present proceedings. (2)Whether the proceedings before the Commissioner under Pt 7 of the IR Act miscarried because he confined his considerations exclusively to the question of whether the misconduct said to be the basis for punishment (that is, the misconduct as alleged or charged) had been made out (the second question posed by the Commissioner thereby not arising as it concerned whether the punishment was appropriate). (3)By direct relation to question 2, whether the Commissioner erred in excluding from his consideration the December and January letters and associated matters concerning her role, function and conduct within the public sector. 178The answers to these questions progressively given below rests squarely upon the reasoning developed in the preceding passages of this judgment. Relevant Aspects of the Commissioner's Reasons 179It is appropriate that the discussion of these questions commences with a brief recapping of the relevant components of the Commissioner's reasoning. These were as follows: (1)The question requiring resolution in the appeal was whether misconduct said to be the basis for punishment had been made out. This was the only question to be considered, other than a subsidiary question as to whether the punishment imposed was appropriate if the misconduct findings were substantiated. (2)That question had to be answered by reference only to the specific charges of misconduct levelled against the respondent, not merely a finding of fact that the employee was guilty of any misconduct. Neither the employer nor the Commission can "recast the charges" or view the conduct other than against the charges of misconduct framed by the employer. It follows that the letters were irrelevant to the appellate process. (3)The specific conduct with which the respondent was charged cannot be sustained. (4)As there was no misconduct, there was no basis for punishment. As such, the appeal must be upheld. An Expansion of the Parties Submissions 180In substance, the respondent's submissions sought to sustain the aforementioned conclusions of the Commissioner, with particular emphasis upon authorities bearing upon the evaluation of misconduct in public sector disciplinary processes: see Smith v Allan (1993) 31 NSWLR 52; (1993) 48 IR 469 ('Smith'); Scanlon v Director-General, Department of the Arts, Sport and Recreation (2007) 70 NSWLR 1 at [81] to [87] ('Scanlon'); Ristau and Director of PE His Agent the Director-General of the Department of Juvenile Justice and PSA and Professional Officer's Amalgamated Union of NSW (on behalf of Elvin Brian Brown) [2008] NSWIRComm 221 at [21]). 181Those submissions will be summarised at greater length below, but, in essence, the respondent contended that a protective function only operated in the context of an appeal under s 100C of the IR Act if an assessment of a disciplinary sanction was required. As the Commissioner found no misconduct was made out, there was no cause for that jurisdiction or function to operate. Lambert was thereby distinguished for the present matter because the principles stated therein were founded on a presumption that misconduct had been made out. 182 A more detailed exposition of the respondent's submissions is as follows: (1)Section 46(2) of the PSEMA provides that the fundamental precondition to the taking of disciplinary action has to be a finding of misconduct. (2)Historically, public service discipline necessitated that a charge of misconduct (of the requisite kind) be made out for the Department Head to form "the view that the misconduct had occurred". The formation of such a view required that misconduct as charged be 'proven' or established. (3)Disciplinary action may only be imposed upon an officer after the view is formed by the Department Head in the aforementioned circumstances. There is no warrant, circumstance or occasion within the statutory scheme for disciplinary action to be imposed on an officer without that officer having engaged in misconduct for the purposes of the Act. (4)The Commission determined that the respondent had not engaged in misconduct within the meaning of the PSEMA. "Accordingly, without the essential precondition of misconduct, the disciplinary action imposed being dismissal could not stand, and nor could any other disciplinary action". (5)"It is the review of the Director-General's decision with respect to the respondent having refused to follow a direction pursuant to a Regulation which was the subject matter of the decision of the Director-General and which was the basis for the misconduct as alleged". (6)The misconduct, so framed and alleged by the Director-General, related only to a failure to attend medical directions. Those allegations were never amended in the proceedings before the Commissioner. The appellant accepted that the disrespectful communications did not form part of the allegations of misconduct "and were only relevant to the imposition of disciplinary sanctions". When the Director-General had relied upon a specific provision and the respondent's refusal to comply with that statutory provision, then the consequential review of the allegation of misconduct must be so constrained. (7)It follows that the appeal before the Commission as to misconduct was confined to those allegations of misconduct and could not properly have concerned the "disrespectful communications" from the respondent. (8)The contention advanced by the appellant as to the protective nature of the jurisdiction arises only after misconduct has been established. The Commissioner did not reach the stage of his consideration where he was required to determine what disciplinary sanction was appropriate (which may have included recourse to the letters from the respondent to the Director-General). Lambert may be distinguished as in that matter there was proven misconduct. 183The appellant challenged the fundamental premise within the respondent's submissions that a finding of misconduct was a pre-condition to taking disciplinary action under Pt 2.7 of the PSEMA. However, the appellant's reply fixed primarily upon the nature of an appeal under Pt 7 of the IR Act and the miscarriage of the proceedings as a result of the Commissioner's approach. Those submissions were as follows: (1)Contrary to the respondent's submission, the appellant did not contend that the respondent's communications with the Director-General should have given rise to findings of misconduct. Rather, it was contended that the Commissioner erred in not having regard to that material in the disposition of the appeal. (2)The function of the Director-General was distinct from that being exercised by the Commission, such that the Commissioner was able to take into account a broader range of considerations. In this respect, the fact that "specific findings of misconduct might not be sustained by the Commission [in a disciplinary appeal] does not end the inquiry required of the Commission when exercising the powers under s 100C of the IR Act". The finding of the Commissioner, adopted by the respondent, that the "original allegations of "misconduct" confine the appellate jurisdiction of the Commission" is plainly wrong. (3)The function of the Commission in a disciplinary appeal of this nature is to consider whether the decision of the Director-General to dismiss the respondent under s 46(2) should be allowed, disallowed, or some other decision substituted for it, having regard to the objects under s 41 of that Act and the evidence. In that respect, the Commissioner ought to have determined, regardless of his findings as to misconduct, whether the dismissal was necessary to maintain appropriate standards of conduct and performance, to protect and enhance the integrity and reputation of the public service and to ensure that public interest was protected (see s 41). This would undoubtedly include giving consideration to intervening matters of relevance under s 100C(2), here the correspondence from the respondent (see Murray and Franks v Roads and Traffic Authority [1996] NSWCA 192 at 464), which was material "both relevant and extremely prejudicial to the Respondent's appeal below". (4)In any event, a finding of misconduct is not the fundamental pre-condition of taking disciplinary action under Pt 2.7 of the PSEMA. It is the opinion of the decision-maker which provides the jurisdictional foundation for instituting disciplinary action. In the present case, since the Director-General formed the opinion that the respondent engaged in misconduct, he was empowered to "decide to take disciplinary action" against her (see s 46(2)). 184I do not consider that the respondent's submissions in this respect are sustainable for the following reasons: (1)The provisions of Pt 7 of the IR Act concerning disciplinary appeals do not evince a legislative intention to limit the scope of an appeal in the manner contemplated by the Commissioner and, in particular, do not contemplate an appeal being foreclosed by a determination of whether or not an employee had, contrary to any opinion formed by the Director-General, engaged in misconduct. (2)Section 100C(2) of the IR Act provides the Commission a wide power to determine appeals. So much is illustrated by the capacity to "make such other decision with respect to the appeal as it thinks fit" (see Smith at 51; Murray at 464) but it is probably enough that the Commission has the power to "allow" or "disallow" an appeal: see Smith at 61 (per Kirby P). The power is only relevantly constrained by the provisions of ss 97 and 98 of the IR Act (confining the subject matter of and standing to bring an appeal), and the requirements of s 41 of the PSEMA, such that the powers exercised under s 100C should not derogate from the objects of the Act (see Lambert at [31] per Hodgson JA). (3)Sections 97(1)(f) and 98(1) provide, inter alia, for an appeal from a "dismissal" of an employee and thereby evince an intention that an appeal will lie from that determination. The Commission has a wide mandate to consider matters relevant to a review of the decision to dismiss and not confined merely to a consideration as to whether the opinion formed by the Director-General as to misconduct was correct or preferable on the material before the Commissioner: see Murray at 462 and particularly 464, distinguishing Strange-Muir v Corrective Services Commissioner of NSW (1986) 5 NSWLR 234 and Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577 at 419 and 589. (4)So described the legislative scheme confers a broad discretion in the Commission under Pt 7 of the IR Act to determine an appeal having regard to any matters relevantly bearing upon the exercise of that discretion which are consistent with the objects of the Act. The confinement of the appeal to the review of an intermediate step taken in the disciplinary processes such as the opinion formed by the Director-General pursuant to s 46(2) of the PSEMA or whether an employee may have engaged in misconduct having regard to the validity of the powers to direct attendance upon a medical assessment are inconsistent with the broad remit of the Commission to hear appeals from the dismissal of an employee (5)There is no warrant under Divs 3 or 4 of Pt 7 to bifurcate the process of the appeal in the manner contemplated in the respondent's submissions. It is implicit in the respondent's submission that the appellate process under Div 3 and 4 of Pt 7 must conform with the structure of disciplinary processes under Pt 2.7. I find no support from the provisions of Pt 7 of the IR Act for such an approach which would seek the importation of a limitation inconsistent with a clearly expressed legislative intent to provide for a wide ranging appeal. (6)There is no requirement for the Commission to reach a conclusion as to the misconduct (as charged) in a disciplinary appeal as a prerequisite to the exercise of its powers under s 100C (and the exercise of its discretion). The appeal as to the decision to dismiss, which is the ultimate disciplinary sanction, must extend to all matters related to a review of that determination consistent with the objects found in s 41 of the PSEMA including those relevantly brought to account in evidence in the appeal under Pt 7. (7)Further, I am unable to discern a legislative intention to confine an appeal to, as the Commissioner found, a review only in the specific allegations of misconduct upon which punishment was based, and by implication only materials which formed the basis for that decision. Based upon the foregoing analysis of the statutory scheme in Pt 7 of the IR Act, the Commission is not entitled to disregard matters relevant to the exercise of its discretion to determine an appeal in relation to 'a dismissal' under s 100C, which include relevant evidence as to supervening facts: see Murray at 464. In this case, the December and January letters were relevant because of the protective nature of the jurisdiction and were particularly relevant to the matters referred to in s 41(a) and (b) and because they were relevant to the making of a determination under s 100C(2). (It may be observed that strictly speaking evidence of the December letter did not constitute a supervening fact as the latter was before the Director-General reached his decision to dismiss the respondent.) Other matters relevant to the protective jurisdiction (and the objects of Pt 2.7 of the PSEMA) include the ongoing role and function of the respondent in the public sector (and, in particular, the Department) and issues associated with conduct such as the respondent's attitude to instructions issued by Ms Dunn or the codes of conduct referred to in the Circular (although the Commissioner found that the instruction from Ms Dunn was also invalid due to unreasonableness). (8)This is not to suggest that a misinformed opinion of the Director-General as to misconduct may not play a role in such deliberations, but that the analysis undertaken may not begin and end at that point. Other affirmative factors for the respondent will also be relevant such as character references and her employment record. (9)These conclusions are further confirmed by reference to the nature of an appeal under Pt 7 of Ch 2 of the IR Act. As the Commissioner correctly observed below, an appeal under s 98 is a hearing de novo: see Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91 ('Calman'). In Calman, the High Court noted that such a hearing empowered GREAT under s 24 (the predecessor provision to s 98) to "inquire into the merits of the matter before it...in a manner which is distinct from the process adopted by the administrative decision-maker at first instance" (at [28]). (10)The respondent submitted that a "finding of misconduct is a fundamental precondition for the taking of disciplinary action". By that submission, the respondent may be taken as contending that the making of an invalid decision as to misconduct by the Director-General removes any jurisdictional foundation for the institution or determination of disciplinary action. I specifically reject this contention. Section 46(2) of the Act does not require a Department Head to make a finding or a decision with respect to an allegation of misconduct (see s 46(1)), but rather to form an opinion. That distinction is made clear from the terms of s 42(2) itself. The legislature distinguished between the administrative act of forming an opinion (with respect to misconduct) and the subsequent step by which the Department Head would "decide" to take disciplinary action (see, for example, State of Queensland v Central Queensland Land Council Aboriginal Corporation [2002] FCAFC 371 at [105] where Lee J delineated between the statutory powers to 'form an opinion' and to 'make a determination' provided in s 43 of the Native Title Act 1993 (Cth)). No submission was made in this case that the requisite opinion was not formed by the Director-General. (11)The respondent's reliance on Smith, Scanlon, Brown and Ristau did not, on proper analysis, support her contention. Smith is supportive of the broad construction of s 100C that has been preferred in this judgment. Tobias JA does refer, in Scanlon, to "proven misconduct" in the context of a similar statutory scheme (at 81). However, in that section of his judgment his Honour is merely commenting that a finding of misconduct may lead to a sanction for the purposes of deciding whether the independence of the Principal Registrar of the Licensing Court of NSW was threatened by the exercise of such a power (see also [23]). Brown does refer to misconduct being 'established' under the PSEMA, but does not examine the provisions of s 46(2) of the PSEMA. The decision is principally concerned with the disciplinary action and in particular a different statutory context: an unfair dismissal in s 84 of the IR Act. (12)The respondent placed particular reliance on Ristau. It was contended that that case demonstrated "fundamental principles" as to the way public sector disciplinary hearings are conducted, most particularly that to uphold a dismissal when the basis of that sanction was not established on the evidence would be to endorse treating the dismissed employee unfairly. The respondent contended that Ristau is authority for the proposition that, if misconduct is not made out, there is no warrant for disciplinary sanction. (13)However, this submission misunderstands the decision in Ristau which ultimately does not assist the respondent for the following reasons: (a)Mr Ristau was dismissed under the Public Service Act 1902. Unlike the scheme under s 46(2) of the PSEMA, s 56(2) of that Act provided that any officer who was "guilty of any misconduct" would be "guilty of a breach of discipline". Where the officer was "found to have committed the breach" of discipline, the Board may then decide to impose any of an array of "punishments" (s 56(5)). (b)Dey J was considering a quite different application to the present one, namely an application under s 20A of the Industrial Arbitration Act 1940. Whilst his Honour did not expressly state that he would apply a test as to whether the dismissal was harsh, unfair or unconscionable as sought in the grounds of appeal (see 310) he did seem to broadly apply the test of 'fairness' in determining to reinstate Mr Ristau (see 373). That statutory test is different to the one here under consideration. (c)His Honour did consider whether in the light of that test Mr Ristau was guilty of the misconduct as charged, but he did not accept as axiomatic that such a finding would result in an order in the applicant's favour. (d)His Honour referred to in Re Dispute-Dismissal of Union Delegate at Homebush Abbatoir (1966) AR 377 (per Cook J) but only to the effect that a wrongful exercise of the right to dismiss for misconduct "can" lead to an order for reinstatement. In Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 (at 84) ('Pastrycooks'), Hungerford J observed that when misconduct was not made out in such circumstances, it would represent "a very compelling consideration for restoring the employment relationship otherwise unlawfully severed"; but not that the finding was determinative. (e)The jurisprudence of the Commission is such that the fact of an employee not being guilty of a charge of misconduct will be a significant factor in support of exercising a discretion in their favour (see Pastrycooks at 84; see also Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 at 87; George Maitland v Royal Blind Society of New South Wales [2004] NSWIRComm 368 at [19] and Burge at 5). This is what Dey J did in Ristau but not without qualification (see the date of reinstatement (at 373)). (f)In any event, it has long been held in the jurisprudence of the Commission in unfair dismissal matters that the Commission may have regard to events occurring after a dismissal (see Bankstown City Council v Paris [1999] NSWIRComm 368, (1999) 100 IR 363 at 370 ). (14)The judgment in Re Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Macquarie Generation [2004] NSWIRComm 11 may be distinguished in similar terms as it was concerned with a disciplinary scheme which, in contrast to the scheme in the PSEMA, expressly required that an employee be guilty of misconduct before they may be dismissed. (15)It follows that the judgment in Lambert may not be distinguished in the manner contemplated by the respondent as the basis upon which such a distinction was sought to be drawn by the respondent has been found unsustainable. It follows that the Commission will exercise a protective function under Pt 7 of the IR Act, consistent with the objects of s 41, even if in that course of such deliberations the Commission makes findings that the specific allegations of misconduct are not made out. (16)It is true that the judgment in Lambert concerned a decision of GREAT in which a finding of misconduct had been sustained, although "the most serious of the allegations originally found to be made out by the Director-General" had been rejected. However, the principles stated in the judgment, as earlier described, do not have as their axis the findings of misconduct, per se, but the nature of the exercise of GREAT's discretionary judgment in a disciplinary jurisdiction, having regard to the objects in s 41 of the PSEMA. (It might be noted that in Murray, the Tribunal substantially rejected the employer's findings of misconduct, although found there was "an element" of misconduct remaining (see 457 and 458)). 185It follows that I would answer the questions posed at the outset of this section of the judgment at [178] as follows: (1)There was no requirement that the Commissioner make a finding that the respondent had engaged in the misconduct as charged before exercising his protective function under Pt 7 of the IR Act. The making of such a finding did not extinguish the protective jurisdiction the Commissioner was required to exercise under Pt 7 of the Act. The authority is Lambert was not distinguishable in this respect. (2)The proceedings before the Commissioner miscarried as a result of his erroneous confinement of the issues requiring consideration and, ultimately, the posing of a wrong question for the exercise of his powers under s 100C. (3)The effect of the errors in (1) and (2) pervaded the whole decision and the ultimate outcome because, as a result of those errors, the Commissioner failed to have regard to the December and January letters and other matters relevant to the exercise of a protective function such as the respondent's overall relationship with the Department. Conclusion as to the First Group of Pleadings re Decisions on Questions of Law 186In my view, Lambert cannot be distinguished as a judgment bearing upon these proceedings. That judgment is authority having compelling force in the present proceedings and should result in the conclusion that the jurisdiction of the Commission under Pt 7 is protective in nature. 187The Commissioner erred in law in two respects. First, he erred in finding that, in the circumstances of the matter before him, his jurisdiction was punitive. Secondly, he posed for himself a question (in [100] of his decision) which, by the exclusion of all other considerations bearing upon the appeal, constituted the wrong question and represented, in and of itself, an error of law. 188The latter error may be demonstrated in two ways. The Commissioner posed the exclusive question for himself by virtue of having formulated the wrong overall test (that is, punitive rather than protective). Further, the wrong question represented a misconstruction of the provisions of Pt 7 of the IR Act and, in particular, ss 97, 98 and 100C. 189The errors did not constitute mere technical faults which had no impact upon the disposition of the appeal below. The errors permeated the whole of the decision as they resulted in the Commissioner excluding from consideration relevant considerations. Foremost in that respect was the determination to treat the December and January letters as irrelevant (and finding error in the Director-General taking the December letter into account). It could not be said that the assessment of the letters was irrelevant to the disposition of the appeal. 190It follows that the appeal should be upheld with respect to ground H (1) so far as it concerns the decisions referred to in pars E (a), (b) and (c) of the appeal. The Second Group of Decisions Relied upon as Decisions on Questions of Law: Pleadings E (e) and (f) and Ground H (1) 191As I have found above, the decision referred to in par E (f) of the pleadings did not represent a decision on a question of law. That aspect of ground H (1) is, therefore, beyond the scope of this appeal. The challenge to the decision in par E (e) of the Notice of Appeal may also be dismissed because of its relationship to my conclusions with respect to par E (f), as earlier discussed. 192 It follows that the appeal should not be upheld with respect to ground H (1) so far as it concerns pars E (e) and (f) of the appeal. Remaining Grounds: Grounds H (2) and (3) 193As a consequence of the above findings (as to pars E (a), (b) and (c) and the earlier discussion in this judgment, I consider grounds H (2) and (3) have also been made out and that the appeal should also be upheld on those bases. Overall Conclusion 194In all of the circumstances, the appeal should be upheld and the decision quashed so far as is consistent with this decision 195The appellant sought an order for a remitter under s 197B(2), which, in all of the circumstances, appears appropriate so as to permit the Commission to reassess the exercise of its discretion in the light of this judgment. 196I propose to have the parties bring in draft orders reflecting the terms of this judgment. 197The appellant should file and serve draft orders within seven days of this decision indicating at the same time whether the orders proposed have the concurrence of the respondent as to form. If there is dispute in this respect, the respondent shall have a further seven days in which to file and serve alternative orders. In the case of disputed orders, the parties should make brief submissions in support of their respective proposed orders at the time of filing and serving those orders (wherein counsel should indicate whether they wish to be heard orally on the matter). ********** 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: 08 August 2014