Industrial Relations Commission New South Wales Medium Neutral Citation: Jessica Xiao v Industrial Relations Secretary (Department of Justice) [2018] NSWIRComm 1054 Hearing dates: 11 September 2018 Date of orders: 11 September 2018 Decision date: 11 September 2018 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC; Constant C; Sloan C Decision: Leave to appeal is refused Catchwords: APPEAL – application for leave to appeal – whether exercise of discretion disclosed error – no substantial issue of principle or law having wider implications or widespread practical application – no demonstrable error disclosed – grounds in support of leave to appeal not made out – leave to appeal refused Legislation Cited: Government Sector Employment Act 2013 (NSW) Industrial Relations Act 1996 (NSW) Cases Cited: Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 McClymont v Thomson Financial Pty Ltd [2002] NSWIRComm 283 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 Stegbar v Transport Workers' Union (2008) 173 IR 350 at 359; [2008] NSWIRComm 104 Stephen York v NSW Department of Education and Communities [2015] NSWIRComm 37 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Category: Principal judgment Parties: Jessica Xiao (Appellant) Industrial Relations Secretary (Department of Justice) (Respondent) Representation: Counsel: L Saunders (Respondent) Solicitors: Crown Solicitor (Respondent) File Number(s): 2018/160043 Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: [2018] NSWIRComm 1034 Date of Decision: 10 May 2018 Before: Murphy C File Number(s): 2018/99587 EX TEMPORE JUDGMENT 1. This is an application for leave to appeal and, if leave is granted, an appeal against the decision of Murphy C in Xiao v Secretary, Department of Justice [2018] NSWIRComm 1034, which we will refer to in this decision as "the impugned decision". Background 1. The appellant, Jessica Xiao, had been employed as the tipstaff to a judge of the Supreme Court of New South Wales. Following the termination of her employment the appellant commenced unfair dismissal proceedings purportedly pursuant to s 84 of the Industrial Relations Act 1996 (NSW). We will refer to that Act in these reasons as "the Act". 2. The respondent raised two preliminary objections to the appellant's unfair dismissal application. It first asserted that the appellant's employment arrangements were exempted from Part 6 of Chapter 2 of the Act as the appellant had been engaged under a temporary contract of employment for a specified period of time and for a specific task. The second preliminary issue raised was that the application had been filed out of time. 3. In the impugned decision Commissioner Murphy rejected the appellant's application that the Commission accept her unfair dismissal application out of time. On the basis of having determined to reject the unfair dismissal application, the Commissioner stated that it was not necessary to determine the other jurisdictional objection raised by the respondent. 4. The Full Bench required the parties to address the question of leave to appeal as a preliminary issue. Having considered the parties' submissions, the Full Bench has decided to refuse leave. Our reasons follow. Principles on leave to appeal 1. Section 188 of the Act is in these terms: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. 1. The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. In that matter the Full Bench stated at [10] and [11]: It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. 1. In Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 the Full Bench stated at [12] and [13]: Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held, immediately before the statement set out above, that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decisionmaker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal. 1. The principles outlined in those cases have since been approved in numerous decisions of the Full Bench. It is not necessary to list them all. We will apply the same principles. 2. It is also relevant in the present case that an appeal which lacks wider application than the interests of the parties will not normally be granted leave: Stegbar v Transport Workers' Union [2008] NSWIRComm 104; (2008) 173 IR 350 at 359. Leave to appeal 1. The appellant sought leave to appeal on the following grounds: 1. the appeal raises substantial and important questions concerning the interaction of the Government Sector Employment Act 2013 (NSW) with Part 6, Chapter 2 of the Act; 2. the nature of the issues raised in the appeal has widespread implications and practical application for the jurisprudence of the Commission. They concern questions of jurisdiction which is an important threshold issue that is determinative of substantive rights under Part 6, Chapter 2 of the Act; 3. the Commission ought to intervene to correct the clear and manifest errors on the part of the Commissioner in the discharge of his statutory functions. As such, the appeal raises serious questions to be tested about whether the impugned decision was inconsistent with established law and proper principle with respect to the application of s 85(3) of the Act; and 4. the determination of the questions raised by the grounds of appeal is a matter of such importance for the proper administration of justice that it is in the public interest for leave to appeal to be granted. 1. In her Outline of Submissions the appellant identified two "primary aspects" of the impugned decision which in her submission made it vulnerable to correction on appeal: first, the Commissioner's failure to determine the question of jurisdiction; and, second, the Commissioner's misapplication of s 85(3) of the Act. 2. The appellant characterised the Commissioner's errors as follows: 1. the Commissioner erred in failing to consider or determine the objection raised by the respondent as to the jurisdiction of the Commission to hear the appellant's application under Part 6, Chapter 2 of the Act; 2. the Commissioner erred in failing to give adequate or substantial reasons with respect to the written and oral submissions advanced by the appellant on the issue of delay; 3. the Commissioner erred in principle by finding that there exists a "statutory requirement for there to be a sufficient reason for non-compliance with the 21 day time limit for the filing of [an application under Part 6, Chapter 2 of the Act]"; 4. the Commissioner erred in allowing irrelevant matters to affect the exercise of his discretion under s 85(3) of the Act, namely that his determination was affected by his observation of the appellant's knowledge of the statutory time limit; 5. the Commissioner erred by failing to take into account some material considerations in the exercise of his discretion under s 85(3) of the Act; 6. the Commissioner erred in the exercise of his discretion not to accept the application in that it was not open on the face of the evidence and submissions before the Commission to conclude that the prospects of success were sufficiently poor as to warrant a refusal of the application under s 85(3) of the Act; and 7. the Commissioner erred in the exercise of his discretion not to accept the application by giving undue weight to the factor enumerated in s 85(3)(a), namely the reason for the delay in making the application. Consideration 1. We turn to consider these submissions in light of the principles outlined previously. Ground 1 – Commissioner's failure to determine question of jurisdiction 1. The appellant submits that the Commissioner erred by failing to determine whether the appellant's employment arrangements exempted her from making an application under Part 6 of Chapter 2 of the Act. She submits that without making a determination on that issue, and presumably finding in the appellant's favour, the Commissioner had no jurisdiction to make the impugned decision. This submission is without substance. 2. Once the Commission's jurisdiction is invoked, it has an inherent authority to determine whether it has jurisdiction: Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 at [16], citing Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158. 3. It was within the Commissioner's discretion, then, to decide which objection he would determine first. We see no error in the Commissioner dealing first with the application for an extension of time. 4. Section 85(1) of the Act requires unfair dismissal applications to be made within 21 days. Applications made out of time may be accepted by the Commission in accordance with, but subject to, s 85(3). If the Commission decides not to accept an application made out of time it will be dismissed, and any other issues arising from the application, whether going to jurisdiction or the merits, will be moot. 5. The Commissioner exercised his discretion under s 85(3) of the Act not to accept the application out of time. Having done so, it was open to him to conclude that it was unnecessary to consider and determine the other jurisdictional issue. The effect of his decision on the out of time application was to bring proceedings to an end. To have explored the second jurisdictional argument would have been an academic exercise at best. 6. It obviously follows that the Commissioner made no determination concerning the interaction of the Government Sector Employment Act 2013 (NSW) with Part 6, Chapter 2 of the Act, so that is not, contrary to the appellant's submissions, a matter arising on appeal. Ground 2 – failure to give adequate or substantial reasons 1. The impugned decision is an ex tempore decision. As already stated, the Commissioner was required to have particular regard to the factors in s 85(3) of the Act. It is clear from the decision that he has done so. 2. Counsel for the respondent took us to Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124. She drew our attention in particular to paragraph [152] which states: While, as Basten JA explained in Lo v CCSR, "[i]f a decision-maker who gives reasons for a decision makes no reference to a particular matter, it may be inferred that he or she disregarded it, either deliberately or through inadvertence", such an inference should not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. Indeed, it has been said that "[i]t is a mistake to conclude simply from the fact that a Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped [the Tribunal's] attention." The Tribunal is not expected to set out every consideration which passes through the decision-maker's mind, although some, and usually the most significant, will be expressly dealt with. [Footnotes omitted] 1. We also note in the same decision the comments of Emmett AJA at paragraph [227] where his Honour states: While a decision-maker such as the Commissioner is required to state reasons for the decision being made, such a decision-maker is not required to mention every fact or argument relied on by a losing party. It is also not necessary for a decision-maker to expose every step in the chain of reasoning that leads to the conclusion. The only question is whether the Commissioner entirely overlooked a mandatory consideration. 1. In that context, the Commissioner has sufficiently provided the reasons for his decision. Ground 3 – error in principle in finding that there exists a "statutory requirement for there to be a sufficient reason for non-compliance with the 21 day time limit" 1. The appellant's construction of s 85(3) of the Act is correct. The task of the Commissioner was to determine whether sufficient reason existed for the extension of time having regard in particular to the factors in paragraphs (a) to (c). 2. The appellant took us to McClymont v Thomson Financial Pty Ltd [2002] NSWIRComm 283. She drew our attention in particular to paragraphs [26] and [27] of that decision where Sams DP stated as follows: In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a "sufficient reason" has been made out. Consistent with each case being decided on its own facts and circumstances, sufficient reason is not defined in the Act, nor is it appropriate to do so. I refer to Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186, where a Full Commission observed at 190: It is not appropriate to attempt to formulate any definition as to what constitutes a "sufficient reason". See also Martin v Nominal Defendant (1957) 74 WN (NSW) 121. The Commission, however, is guided as to the matters to be taken into account, by reference to sub clauses (a), (b) and (c). It is appropriate for an applicant to address each of the criteria in sub clauses (a), (b) and (c). It may be, of course, that only one of these matters, two of them or all three, might be found to constitute a sufficient reason, or reasons, for the Commission to be satisfied its discretion should be favourably exercised. 1. The appellant's reliance on McClymont indicates that one or more of the factors in paragraphs (a) to (c) of s 85(3) of the Act might be sufficient to meet the requirements of the section. In the impugned decision the Commissioner considers each of those factors but does not find that they singly or in combination advance a sufficient reason to extend time to accept the application. We consider that finding to be open to the Commissioner. Ground 4 – irrelevant consideration – knowledge of time limit 1. The effect of the appellant's submissions is that in having regard to her awareness of the statutory time limit the Commissioner placed a greater burden on her than that which would have been placed on an applicant ignorant of that requirement, contrary to Stephen York v NSW Department of Education and Communities [2015] NSWIRComm 37. 2. That is not how we read the impugned decision. Rather, we understand the Commissioner to be excluding any argument of ignorance of the time limit on the part of the appellant. The Full Bench in York accepted that "true ignorance of the law may be a factor to be taken into account in the exercise of the discretion to accept a late application": at [85]. 3. Even if it be accepted that the Commissioner relied on the appellant's knowledge in a manner contrary to York, we do not consider that this had a material bearing on the outcome of the impugned decision such as to give rise to an error justifying the grant of leave. Ground 5 – failure to take into account material considerations 1. There are four parts to this ground. We will deal with each in turn. 2. Firstly, it is alleged that the Commissioner failed to make a finding as to the date of dismissal. This is incorrect. The Commissioner identifies 23 March 2018 as the date by which the appellant's unfair dismissal application should have been filed. It is clear in this context that he has concluded that the termination took place on 2 March 2018. 3. Secondly, the appellant contends that the Commissioner failed to consider the factors advanced by the appellant as to the reason for delay. This flows from the following passage in the impugned decision at [11]: The applicant has offered no reason whatsoever, let alone a sufficient reason, for her failure to file her unfair dismissal application within the statutory time limit after she became aware of her dismissal. 1. The appellant contends that contrary to the Commissioner's statement two such reasons were advanced: one, a period of hospitalisation, and, two, the registry of the Commission being closed on 28 March 2018. 2. Despite the language in the passage in the impugned decision, the Commissioner clearly considered the first factor, as made clear at paragraph [9] of the impugned decision. There is no reference in the impugned decision to the second factor, although we note that this event took place after the expiry of the time limit. The passage on which the appellant relies shows that the Commissioner was directing attention to reasons for the failure to lodge the application within the statutory time limit, rather than reasons for the delay more generally. 3. In any event, even if the Commissioner failed to take into account the closure of the registry on 28 March 2018 we do not consider that this would have a material outcome on the result. It goes only to the length of the delay, not the reason for it. 4. Thirdly, the appellant contends that the Commissioner failed to give sufficient weight to the shortness of the delay and the lack of prejudice to the respondent. The effect of this contention is that because the delay was short, and the respondent suffered no (apparent) prejudice, the Commissioner should have accepted the application out of time. 5. It was properly a matter for the Commissioner to determine the weight to be given to the length of the delay, having regard to the principles outlined in the impugned decision. The Commissioner made no error by refusing to accept the application out of time due to the alleged shortness of the delay. 6. The impugned decision makes no reference to the lack of prejudice to the respondent. Even so, the language of s 85(3) of the Act makes it clear that hardship to the respondent is only one of the considerations to which the Commission must have particular regard. None of those considerations is expressed to be, and cannot be construed as being, determinative of themselves. The weight, if any, which a Commissioner affords to a particular consideration in a given case is within that Commissioner's discretion. This is made clear in the case of McClymont to which the appellant referred us. We do not regard that by failing to reference the prejudice, or lack of prejudice, to the respondent the Commissioner fell into error. 7. Fourthly, the appellant submits that the Commissioner failed to consider the respondent's other jurisdictional objection, which would have been relevant to the appellant's prospects of success. We do not consider that this submission assists the appellant. The Commissioner considered the appellant's prospects, albeit briefly and conditionally, assuming that the case would be determined on the merits. This was to give the appellant the benefit of the assumption of jurisdiction. A more detailed consideration of the issues could not in our view have resulted in a better analysis from the appellant's point of view. Ground 6 – conclusion as to prospects of success 1. The passage from the impugned decision to which the appellant takes exception is as follows: I also observed, without expressing any final view, that the applicant's prospects of success in this application appear to be slim, given the short length of time of her employment as a tipstaff and the number of issues that had arisen during that short period. 1. As previously stated, the appellant recognises that prospects of success are properly a matter to be taken into account by the Commission in exercising its discretion under s 85(3) of the Act. It follows that no criticism can be levelled at the Commissioner for doing so. 2. It is also to be observed that the Commissioner has couched his comments in very conditional terms. Ground 7 – undue weight given to the reason for the delay 1. As already stated, the language of s 85(3) of the Act lists the considerations to which the Commission must have particular regard, but does not specify the weight to be given to any of them. This is a matter within the discretion of the Commission. We do not consider that the Commissioner fell into error in the exercise of his discretion in this regard. Conclusions 1. As the appeal challenges the exercise of a discretion, the appellant must demonstrate error in its exercise of the nature contemplated in the principles enunciated in House v The King. In our view, no such error is established. We do not consider that the Commissioner fell into error of law, or made a finding of a relevant determinative fact that is demonstrably wrong. 2. In the impugned decision the Commissioner outlined the legislation and legal principles that would guide the exercise of his discretion under s 85(3) of the Act. We accept the respondent's submissions that the Commissioner applied those principles in an orthodox way. 3. Aside from the question of error, there are no matters of principle at large that justify an appeal being heard. The appeal raises no substantial issues of principle or law, nor does it raise issues having any wider application than to the parties themselves. That being so, there is no proper basis on which, in the public interest, leave should be granted. 4. For these reasons we refuse to grant leave to appeal. Order 1. The Full Bench makes the following order: 1. Leave to appeal is refused ********** 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: 14 September 2018