Lesley Jane Killen & The Ministry for The Arts [2001] NSWIRComm 1079 (11 December 2001)

Last Updated: 2 April 2002

INDUSTRIAL RELATIONS COMMISSION

OF NEW SOUTH WALES

IN COURT SESSION

FULL BENCH

WRIGHT J PRESIDENT

WALTON J VICE PRESIDENT

BOLAND J

TUESDAY 11 DECEMBER 2001

IRC 01/3729 - LESLEY JANE KILLEN AND THE MINISTRY FOR THE ARTS

Application for leave to Appeal and appeal against a decision of the Chief Industrial Magistrate G A Miller given on 15 May 2001

JUDGMENT OF THE COURT

We have determined that leave to appeal should be refused in this matter. Whilst the appeal raises issues as far as the issue of leave is concerned which may, on their face, have attracted the grant of leave, we consider that, when tested against the facts and circumstances of this case, no proper basis has been demonstrated to warrant the grant of leave.

We consider that the contention that the Chief Industrial Magistrate failed to properly inform the appellant of the availability of a medical report or of the possibility of an adjournment is fundamentally wrong. It is sufficient in this regard to refer to the following matters:

1. The extent of the intervention appropriate for a court will depend on the nature of the proceedings. This was made clear in Davidson v Aboriginal and Torres Strait Islander Child Care Agency (1998) 105 IR at pp 7-8. The proceedings before the Chief Industrial Magistrate did not permit the scope of intervention in the proceedings broadly outlined in that decision.

2. Further, we note that the circumstances applying in this case are distinguishable because of the representation (albeit not legal representation) which the appellant had at first instance.

3. Further again, we consider that the appellant's contention as to the intervention required by the Chief Industrial Magistrate would have involved him intervening in the proceedings in a manner wholly inappropriate to the obligation of the Court to act neutrally in adversarial proceedings.

4. The Chief Industrial Magistrate was not to preform a task even remotely resembling that of a legal representative acting for the appellant. However, even if that test were applied, there is nothing on the materials before us which would suggest that it would necessarily be proper or appropriate for inquiries to be made as to the existence of other medical reports in the manner contended for by the appellant.

5. In any event, the substance of the information which it is claimed the Chief Industrial Magistrate should have alerted the appellant to, in order that access to it might have been obtained, was before the Chief Industrial Magistrate through the unchallenged evidence of the appellant in the proceedings.

We observe that, for the purposes of examining the leave question, we have proceeded - without finally deciding the question - on the basis that the fresh evidence introduced by the appellant was before us. That is, on the basis most favourable to the appellant's leave argument. Counsel for the appellant was permitted to develop fully his submissions on each of the elements of the appellant's case. That is, as to the fresh evidence application, the application for leave to appeal and the appeal itself.

Assisted in this way, the Full Bench has been able to review the decision of the Chief Industrial Magistrate and the basis upon which his Worship arrived at his conclusions. We consider that the conclusions reached were reasonably open to his Worship and this additional factor also leads to the conclusion that this is not a matter which should lead to the grant of leave to appeal.

We therefore make the following orders:

1. Leave to appeal is refused.

2. The appeal is dismissed.

We will hear the parties as to costs. [Counsel addressed as to costs]

With respect to the application for costs, we note that the appeal before us raises some particular issues which we consider will warrant refusal of the application for costs in these proceedings. We have in mind in this respect that whilst the application for leave was refused by us in these proceedings, the application for leave on its face raised, as we noted in our decision on leave, a number of matters of particular interest in relation to the adjudication of matters involving unrepresented litigants, and in the circumstances, there are particular factors applying, perhaps exceptional in this case, warranting no order as to costs. We order accordingly.

These proceedings are thereby concluded.

oOo