Followes v Knight Frank (NSW) Pty Ltd [2003] NSWIRComm 41 (12 March 2003)

Last Updated: 16 April 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Followes v Knight Frank (NSW) Pty Ltd [2003] NSWIRComm 41

FILE NUMBER(S): IRC 6538

HEARING DATE(S): 04/12/2002

DECISION DATE: 12/03/2003

PARTIES:

APPLICANT/APPELLANT

Judie Janine Followes

RESPONDENT

Knight Frank (NSW) Pty Ltd

JUDGMENT OF: Wright J President

LEGAL REPRESENTATIVES

APPLICANT/APPELLANT

Ms J J Followes - in person

RESPONDENT

Mr G K J Rich of counsel

Solicitors: Deacons

CASES CITED: Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385

Burks v Zanmarl Pty Limited (2001) 107 IR 187

Cavacuiti v Toyota Motor Corporation Australia Limited [2002] NSWIRComm 341

De Simone Consulting Pty Limited v Ison (No 2) [2000] NSWIRC 269

Famonselle Pty Ltd v Nairne (unreported, Hungerford J, 22 June 1990)

Followes v Knight Frank (NSW) Pty Limited [2002] NSWIRComm 288

Hitchcock v CSR Limited [2002] NSWIRComm 170

Hyde v Energy Australia (1999) 92 IR 409

Imisons Metal Sand Filling Suppliers Pty Ltd v Rezitis [1969] AR (NSW) 373

Industrial Agreement No 1210 between Australian Workers' Union and National Oil Proprietary Limited (No 2), Re [1943] AR (NSW) 657

Kok t/as Claridge Valet Dry Cleaners v WorkCover Authority of New South Wales (Inspector Reynolds) (2001) 103 IR 380

LEP International Pty Ltd v Caine (1999) 97 IR 35

National Australia Bank Ltd v Cassino [2002] NSWIRComm 241

NSW Teachers' Federation v NSW Office of The Board of Studies [2002] NSWIRComm 1

Professional Officers' Association v Forestry Commission (NSW) (1990) 39 IR 46

Reich v Client Server Professionals of Australia Pty Ltd (Administrator Appointed) (2000) 49 NSWLR 551

Salter Rex & Co v Ghosh [1971] 2 QB 597

Skelly v Prouds Jewellers Pty Limited (1994) 53 IR 3

Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436

Western Sydney Area Health Service v Gibson (2001) 109 IR 359

WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298

LEGISLATION CITED: Industrial Relations Act 1996 s 106 s 188 s 189

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Wright J, President

Wednesday 12 March 2003

Matter No IRC 6538 of 2002

JUDIE JANINE FOLLOWES v KNIGHT FRANK (NSW) PTY LIMITED

Application by Judie Janine Followes for extension of time to appeal against a decision of Staunton J given on 31 October 2002 in Matter No IRC 847 of 2002

JUDGMENT

[2003] NSWIRComm 41

1 The applicant, Ms Judie Janine Followes, has made application for an order extending time to appeal against the judgment of Staunton J delivered on 31 October 2002: Followes v Knight Frank (NSW) Pty Limited [2002] NSWIRComm 288. The respondent in the proceedings is Knight Frank (NSW) Pty Limited, the former employer of the applicant. The applicant commenced proceedings against the respondent pursuant to s 106 of the Industrial Relations Act 1996 and those proceedings were the subject of the judgment of Staunton J.

2 The application was filed on 19 November 2002 and sought an order extending time until 30 November 2002. No notice of appeal has, however, been filed.

3 The application gave as the "reasons why the appeal was not or cannot be filed within time" as "inadequate resources". The grounds for claiming an extension of time were stated as:

Grounds for claiming an extension of time:

Collating information to indicate

(a) Failure to give proper hearing

(b) Failure to take into account evidence

(c) Use of material incorrectly transcribed

(d) Unfair assessment of my character

The application also indicated that the form of the proposed appeal would be provided at the time the notice of appeal was filed.

4 The application was heard on 4 December 2002. At the time the applicant represented herself and Mr G J K Rich of counsel appeared for the respondent. Leave was given to the applicant to file further submissions by 11 December 2002 and for the respondent to file any reply by 16 December 2002. The decision was to be reserved at that time. However, certain further communications occurred between the Court and the parties largely through communications with the Registrar.

5 The present application, as earlier noted, was filed on 19 November 2002 and thus within the 21 day period specified in s 189(1) of the Industrial Relations Act for the filing of an appeal. Section 189(2) provides that further time may be allowed, either before or after that 21 day period has expired.

The proceedings at first instance

6 The proceedings at first instance may be taken to be described sufficiently for present purposes in the judgment of Staunton J, as follows:

4 [O]n 29 January 2002 Ms Mackenzie, National Human Resources Coordinator for the respondent, interviewed Ms Followes for the Secretary/Receptionist position at Customs House. A verbal offer of employment was made on 1 February 2002 and verbally accepted on the basis that Ms Followes would commence work on 4 February 2002, which was the following Monday.

5 The initial offer of employment to Ms Followes was formally confirmed in writing to her with a copy of the draft contract being emailed to Ms Followes by Ms Mackenzie on the same day, that is 1 February 2002

6 Part of the initial discussions between Ms Mackenzie and Ms Followes concerned the salary to be paid. Ms Mackenzie initially offered Ms Followes the position for -

'... a 1 year fixed term contract with a probationary period of 3 months ... and ... $38,000 per annum inclusive of superannuation.'

7 Negotiations at that point between Ms Mackenzie and Ms Followes resulted in an increase in the salary package, inclusive of superannuation, to $40,000 per annum. On that issue Ms Mackenzie stated:

'The applicant ... had been offered a position as a Property Manager with a higher salary and she could not accept a package of under $40,000.'

8 There was undisputed evidence that, at the same time Ms Followes was considering the job offer from the respondent, she was also considering job opportunities with two other employers. The evidence was that those positions were within the same salary range as the job with the respondent and both had probationary periods as a term of employment.

9 At Ms Followes' request, and after the initial draft was sent, there were additional negotiations between her and Ms Mackenzie that saw a minor addition to one of the clauses of the contract of employment but not such as to significantly alter the terms of the contract as initially sent to Ms Followes on 1 February. A second letter setting out the amended terms of the contract of employment was sent to Ms Followes on 6 February 2002. This was followed by an email from Ms Followes to Ms Mackenzie requesting a number of minor changes and those negotiations were completed on 7 February 2002.

10 In the meantime Ms Followes commenced work as agreed on 4 February 2002.

11 Of the terms of the contract as between Ms Followes and the respondent, the one that became critical for the purposes of the proceedings before me was clause 4, Probationary Period, expressed in the following terms:

4. Your appointment is subject to a standard probationary period of three months, during which termination may be on one weeks notice given by either party.

12 It should be noted at this point that, in the negotiations between Ms Followes and Ms Mackenzie giving rise to minor variations to the contract of employment, no issue was ever made as to the terms or construction of that clause.

13 As circumstances developed in the workplace, that clause became operative at the instigation of the respondent within a week of Ms Followes commencing work on 4 February. It is those circumstances and the utilisation by the respondent of the provisions of the Probationary Period clause that brings the applicant before the Court seeking relief ...

[the extracts cited from the applicant's summons are omitted]

14 In making and framing the application in the terms that she did, Ms Followes was unrepresented. That was the case when the matter came before me for hearing. In presenting her case, Ms Followes filed an affidavit on 20 June 2002 accompanied by some annexure material. She gave evidence on her own behalf.

7 The trial judge then referred to the witnesses called by the respondent and the circumstances which led to the termination of the applicant's employment. Her Honour analysed the evidence in the proceedings in detail under the headings "The substance of the complaints" and "Relevant considerations" concluding, inter alia:

62 Ms Followes argued, not without some merit, that she should have been given the opportunity to mend her ways rather than being dismissed so soon after commencing with the respondent. In other words she said she should have been given time to mend her behaviour because she said there was nothing that would suggest that her competence was in question. The opportunity to mend her behaviour was not given to her and, that in itself, she said, was unfair.

63 As I have said, that argument, prima facie, is not without some weight. The concepts of procedural and substantive fairness may also be pertinent to unfair contracts. In the context of dismissals, procedural fairness requires that the employee be warned if job performance is unsatisfactory; the employee is also entitled to an opportunity to respond to allegations of improper conduct prior to dismissal: Law of Employment, Macken et al: 5th Edn at 503. Such an approach has also been cited with approval in relation to unfair contract allegations by the New South Wales Court of Appeal in Walker v Industrial Court of New South Wales (1994) 53 IR 121 and also in this Court in Helprin v Westfield Ltd (1996) 68 IR 25 at 51.

64 However, where I believe Ms Followes falls down in that submission is her behaviour on 11 February 2002 in her interview with Ms Mackenzie and Ms Wilton. It was this interview that was critical to her being able to convince her employer that, while her behaviour may have been somewhat aberrant and not as expected in her first week of employment, it was something she would address in a positive way and that, given time, she would turn that performance around. That such an opportunity was there before her was evidenced as much by the letter she received on 7 February 2002 when she was asked to attend the meeting because of complaints about her behaviour in the first week. That letter said, amongst other things, that having these discussions 'may result in your termination of employment within your probationary period' (my emphasis).

...

68 On all of the evidence before me, I conclude that the respondent came to the view that Ms Followes' behaviour during her first week of employment was such that she was incompatible as far as their expectations of her as an employee were concerned. ...

69 All in all, Ms Followes was never going to fit into the respondent's business at Customs House and one can understand that the respondent came to that view fairly quickly given the matters that arose. While the matters raised may individually of themselves seem relatively minor, collectively over a period of one week they were somewhat alarming as an indicator of Ms Followes' future behaviour. It was not surprising that the respondent took the steps that it did to terminate Ms Followes' employment within the probationary period.

8 Her Honour had earlier, at paras [57] to [59], referred to the judgment of Glynn J in Burks v Zanmarl Pty Limited (2001) 107 IR 187 at [108] and [109] as to the significance to the employment relationship of a period of probationary employment and the relevance of such matters to the differing approaches adopted by the respondent and the applicant as to her short period of employment. Her Honour returned to that judgment, at least inferentially in part as to that issue, when she held at para [70]:

70 Ms Followes also claimed that one of the circumstances that rendered her contract unfair was that she had forgone two other job opportunities to take the position with the respondent. I do not see how that situation can give rise to any orders in favour of Ms Followes. If anything the position is on all fours with the views expressed by Glynn J in Burks v Zanmarl at para [166] where her Honour stated in relation to Mr Burks:

"He had travelled to Bourke and had talked extensively with the second respondent. He had visited the supermarket. He had been offered the position and after consideration over some days had accepted it. He had later sought and received the offer in writing. There were no misrepresentations on the part of the respondents to induce the applicant, in the first place, to apply for the position, and in the second, to accept it. It was up to him as to which position he would pursue and for him to make his decision after balancing the perceived advantages/disadvantages to him of the two offers."

and concluded:

71 In the matter before me, Ms Follows discussed the offer of employment fairly extensively with Ms Mackenzie. She confidently negotiated with her on some issues. All such matters were reduced to writing and concluded over a period of days. In concluding such negotiations, Ms Followes clearly weighed up the respective merits of the positions under offer. She ultimately accepted the respondent's offer and, absent any misrepresentation, did so freely and without duress. I see no basis for any orders in favour of Ms Followes on this issue.

72 For the reasons detailed, I come to view that the applicant has not demonstrated any relevant unfairness on the part of the respondent such as to warrant the relief sought under s 106 of the Act.

ORDERS

73 In this matter I make the following orders:

· the summons is dismissed;

· the parties are at liberty to apply with respect to costs.

Submissions of the parties

9 The applicant developed her submissions as to why she should be granted an extension of time largely by reference to the bases upon which she wished to challenge the decision at first instance. It was emphasised that the initial proceedings had been commenced because her contract with the respondent was unfair in its operation. She also alleged that the judgment delivered by Staunton J was "unjust, unfair and unconscionable" because "in the course of dismissing [the application] it found cause to denigrate [the applicant's] character". The applicant contended further that:

[T]here has been a breach of procedural fairness in that there was failure to give a proper hearing with impartiality and without bias. There was the introduction of new issues in the submission of affidavits which were not relayed at the time of termination of the contract. There was failure to take into account relevant considerations. There was also the taking into account of irrelevant considerations.

10 The applicant also raised a number of issues as to certain matters which occurred, or failed to occur, during the course of the trial; for example:

(a) There was no person present to object to the line of questioning of counsel for the respondent when, for example, he did not ask questions based on the applicant's affidavit but rather raised matters included in affidavits of the respondent's witnesses.

(b) Although one of the witnesses when cross-examined by the applicant during the trial referred to some rough notes on the applicant's employment file, she had never seen the file notes, nor were they produced at the hearing.

(c) A finding made by Staunton J that a witness, Ms Wilton, believed that the applicant ignored her was incorrect. There was no evidence that she refused to comply with Ms Wilton's request. What occurred was an honest mistake or misunderstanding, not corrected by Ms Wilton.

(d) New issues were introduced at the trial "not relayed at the time of termination" of employment.

(e) There was a failure to take into account relevant considerations; that is the reliance on the judgment in Burks v Zanmarl Pty Limited and, in that context, failure to consider whether the three days' employment with the respondent was a reasonable period of probation and how what was reasonable was to be measured.

(f) The demeanour of various of the respondent's witnesses vis-a-vis that of the applicant.

(g) Certain errors in findings of fact.

(h) The decision to dismiss the case was unreasonable in light of the evidence.

11 Although each of the matters on which the applicant relied was elaborated, the aspect most heavily emphasised was that described by the applicant in this way:

[T]he basis of my appeal really is the fact I believed Justice Staunton's judgment was unreasonable and that it actually attacked my character in various areas.

12 Counsel for the respondent helpfully provided a succinct but detailed written submission as to the basis of the respondent's opposition to the application for an extension of time to appeal. In addition to analysing the relevant authorities in a comprehensive way, the submission focused upon a number of pertinent considerations which may be summarised as follows:

(a) At the time of the hearing no draft or proposed notice of appeal had been provided to the respondent although, in her application for extension of time, the applicant sought an extension of time only until 30 November 2002.

(b) Any appeal from the decision of Staunton J may only be made with the leave of the Full Bench because of the terms of s 188 of the Industrial Relations Act.

(c) On 15 November 2002 Staunton J ordered the applicant to pay the respondent's costs on a party/party basis and those costs are yet to be paid.

13 Counsel summarised the respondent's submissions in this way:

Having regard to the principles set out in those authorities, the respondent opposes the present application on the following bases:

(i) The Applicant has not satisfactorily explained the reason(s) for her delay in filing an application for leave to appeal;

(ii) The prospects of any appeal are poor and leave to appeal is highly unlikely;

(iii) The Applicant has not otherwise made out a case sufficient to justify the grant of her application.

14 On the issue of delay, counsel submitted that there was no material before the Court upon which it could be satisfied that a refusal of the application would constitute an injustice. It is firmly established that the grant of an extension of time is not automatic and something more is therefore required than a mere assertion in the application that the applicant was possessed of "inadequate resources" and desired further time to "collate information". Indeed, there is no explanation in evidence of the reasons for her delay, the applicant's affidavit says nothing about reasons for delay. This is not a case where the applicant was not aware of the applicable time limitation or where there was some external factor such as illness or error or omission on the part of a legal representative.

15 Mr Rich emphasised that to grant an extension of time in the absence of any evidence justifying the applicant's delay would be inconsistent with the policy of the Industrial Relations Act and the principles developed by the Court. As to prospects on appeal, it was submitted that an application for an extension of time in which to a file an appeal always requires consideration of the prospects of the applicant succeeding in the appeal. The matters raised by the applicant are essentially questions of fact amounting to an "all grounds" appeal. It is significant that a major reason why Staunton J declined to exercise her discretion in the applicant's favour was that her Honour preferred the evidence of the respondent's witnesses to that of the applicant in a number of critical areas. Specific reference was made by her Honour to the demeanour of the various witnesses including that of the applicant. Where, as in this case, the trial judge made findings of fact which depended to a substantial degree on assessment of the credit of witnesses and observations on their demeanour, those findings must stand unless it could be shown that the trial judge palpably misused her advantage, or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.

16 The conclusions reached at first instance were, it was submitted, clearly open on the evidence and the Full Bench is unlikely to substitute its own findings. Perhaps more importantly, there will be no appeal unless leave is granted by the Full Bench pursuant to s 188. In that regard the Act gives primacy to first instance decision-making and the legislature clearly intended to restrict appeals to cases meeting the public interest test set out in s 188(2).

17 It was also submitted that it would be unjust to put the respondent to further trouble and expense in connection with the matter given the judgment at first instance and the fact that it will almost certainly be left undisturbed and leave to appeal will not be granted. Particularly so where there is no evidence upon which the Court could properly grant an extension of time. Further, there is no other basis on which a case has been made out sufficiently to justify the grant of the application. In any event, for both parties, the extension of time for an appeal and a consequent continuation of the proceedings would most likely be "throwing good money after bad" (citing the judgment of Lord Denning MR in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601).

Consideration and conclusions

18 In the light of the way in which these proceedings were argued, and the way in which the issues are raised for determination, this case does not require detailed consideration of relevant principles. In any event, the relevant principles have been considered in a number of decisions of this Court, including a number of relatively recent decisions, and are thus well settled: for example, WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299 - 301, LEP International Pty Ltd v Caine (1999) 97 IR 35, Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436, Skelly v Prouds Jewellers Pty Limited (1994) 53 IR 3, De Simone Consulting Pty Limited v Ison (No 2) [2000] NSWIRC 269 (Full Bench), Kok t/as Claridge Valet Dry Cleaners v WorkCover Authority of New South Wales (Inspector Reynolds) (2001) 103 IR 380 and Cavacuiti v Toyota Motor Corporation Australia Limited [2002] NSWIRComm 341.

19 Those principles should also be seen in the light of the long standing approach of this Court, and its predecessors, to procedural matters generally, of dealing with such issues in accordance with "modern judicial practice" on an essentially pragmatic basis; see, for example, Hyde v Energy Australia (1999) 92 IR 409 at 423, Western Sydney Area Health Service v Gibson (2001) 109 IR 359 at [24], Hitchcock v CSR Limited [2002] NSWIRComm 170 at [7] to [8] and National Australia Bank Ltd v Cassino [2002] NSWIRComm 241 at [8]. The approach may, in turn, be described as "coming down to the proposition of doing justice between the parties and ensuring the proper administration of justice"; Van Rooy Machinery Pty Ltd v WorkCover Authority of New South Wales at [33], Hitchcock v CSR Limited at [8].

20 The general approach has, on the one hand, usually involved a liberal approach in extending time particularly where time has not already expired: Imisons Metal Sand Filling Suppliers Pty Ltd v Rezitis [1969] AR (NSW) 373 at 377 and Re Industrial Agreement No 1210 between Australian Workers' Union and National Oil Pty Limited (No 2) [1943] AR (NSW) 657 at 666; but, at the same time, great importance being given to the consideration that an application for an extension of time in which to file an appeal always requires regard to the prospects of the applicant succeeding in the appeal (see, for example, WorkCover Authority v Parkes Council at 301, LEP International Pty Limited v Caine at [41] and [51]). This is particularly important where the prospects of the appeal succeeding were remote or the appeal appeared futile: Famonselle Pty Ltd v Nairne (unreported, Hungerford J, 22 June 1990 at 7); NSW Teachers' Federation v NSW Office of The Board of Studies [2002] NSWIRComm 1 at [23] and LEP International v Caine at [54].

21 At the conclusion of the hearing, the Court was concerned that, because the applicant was not legally represented, she may not have been in a position to deal with the detailed and carefully researched submissions of the respondent as to the relevant authorities and principles concerning the issue of extensions of time in appeals. In the circumstances, the Court gave the applicant additional time to deal with such matters in writing and reserved the right of the respondent to reply to any further submissions.

22 A document was filed by the applicant on 10 December 2002 which consisted of a short covering letter and a five page submission together with annexures. The submission sought to cover the ground contained in the applicant's earlier submissions and did not deal with the authorities relied upon by the respondent, the principles derived from them, or the application of those principles for the present case. Nevertheless, subject to one aspect of them, the submissions did appear to evince an intention to continue with the application. However, this intention seemed to be contradicted by the post scriptum at the foot of the covering letter which said:

P.S. Please note that I will formally withdraw from persuing (sic) this further.

23 In view of the apparent contradiction in the applicant's documents, the Registrar was requested to contact her to ascertain whether she wished to pursue her application. This led to further communications between the parties and the Registrar and, it seems, to result in the following matters being established albeit, no doubt in part because of the Christmas period, it was not until mid January that these matters were resolved. The matters were, first, that contrary to the notation in the mid-December 2002 correspondence, it was the applicant's intention to proceed with her application (she requested that this information be advised to the Court); and, second, that in accordance with the request from the solicitor for the respondent, certain communications between the parties were to be regarded as "without prejudice" and that copies of certain of the documentation and correspondence provided to the Registrar during the course of his communications with the parties would not be placed on the Court file.

24 The issues in this case, upon proper consideration, really depend on one issue; that is, whether the appeal is so likely to fail, or its prospects of success are so small, that the grant of the extension of time to appeal would be inappropriate and represent an injustice to the respondent. Notwithstanding the substantial matters raised by the respondent as to the lack of evidence from the appellant as to the reasons why the appeal had not been lodged in time, I consider that it would have been open to the Court, if it had found that there was a reasonable prospect of the appeal succeeding, to come to the conclusion that, in the light of all of the applicant's personal circumstances, some short further time should be granted after the hearing of her application for the appeal to be lodged.

25 As to the prospects of the appeal succeeding, it is correct, as the respondent contended, that the statutory scheme as to appeals under the present legislation "give[s] primacy to first instance decision-making in a manner not earlier found in industrial legislation in this State": Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 392 - 393, and that it is relevant, in appropriate cases, to take into account, on the issue of the prospects of the appeal being successful, that leave to appeal pursuant to s 188 is required for the appeal to be considered: see, for example, Cavacuiti v Toyota Motor Corporation Australia Limited at [72] and following.

26 I do not consider that any of the matters relied upon by the applicant, with one possible exception, provides any basis for concluding that the applicant's foreshadowed appeal has any prospects of success. For example, each of the matters referred to by the applicant with less emphasis than her major point (set out in paragraph [10] above) are, on analysis, of little substance. They are extremely unlikely to attract leave to appeal or lead to the judgment of Staunton J being set aside or modified on appeal. The excepted ground relates to the issue to which the applicant's submissions returned on a number of occasions. The issue was her concern that, in the course of dealing with the proceedings the judge at first instance had "denigrated" her character, and that the judgment attacked "[her] character in various areas". This submission was put in a number of ways. For example, that the judgment was unreasonable; that it took into account irrelevant considerations; and that there was a "failure to give a proper hearing with impartiality and without bias". Although the applicant did not give evidence in the present application, the Court nevertheless had the opportunity to observe her when she appeared and in the course of her relatively detailed submissions. In the circumstances, it was plain that the applicant feels a deep sense of grievance because of certain of the observations made in the judgment at first instance.

27 It is unfortunate that this aspect requires examination for the proper consideration of the present application. For example, although it would normally be appropriate to set out the passages, the subject of the complaint, to repeat those parts of the judgment here would be likely to exacerbate the deep sense of grievance felt by the applicant. Not without considerable hesitation, it has been decided not to include those passages in this judgment. They are, in any event, plain on the face of the earlier judgment at, for example, paragraphs [50], [51] and [68].

28 The difficulty raised by the observations made by the trial judge is that, where a judicial officer makes comments of a personal nature in respect to a party before the court, there may be a very fine line between, first, comments which are material and necessary for the disposition of the case; second, those which it may have been preferable for the judicial officer to avoid using; and third, comments which reasonably show or lead to a reasonable apprehension of bias. This area has been the subject of authoritative consideration both judicially and extrajudicially. In the latter category reference may be made to the paper given by the Chief Justice of Australia at the National Judicial Orientation Program on 16 August 1998 entitled "The Role of the Judge and Becoming a Judge" (published as "Performing the Role of the Judge" (1998) 10 Judicial Officers' Bulletin 57). In the section of the paper dealing with the topic "Fairness", Chief Justice Gleeson dealt with a number of practical aspects of the requirements of fairness which he observed might be easily overlooked. Although his Honour's observations emphasised the risk of persons who are not party to proceedings being unfairly dealt with "by an incautious manner of expressing reasons for judgment" it seems clear that they were not intended to be limited only to third parties. The paper included the following:

The judge only addresses such issues as the parties invite the judge to address, and learns only so much of the facts of the case as will appear from the evidence that is tendered in the course of the proceedings. Fairness, to the parties, and perhaps to third parties, requires that the ultimate judgment be expressed in the light of an understanding of the limitations inherent in the process.

Judges in the course of delivering reasons for judgment, sometimes make findings or comments which reflect a lack of appreciation of those limitations. There may, for example, be a background to litigation, of which the judge will get only a partial glimpse, it may be quite unfair for the judge, in those circumstances, to express unnecessary value judgments, or opinions, or general conclusions of fact, without knowing the whole of the background in question.

...

The absolute privilege which attaches to fair reports of court proceedings should lead judges to be conscious of the harm that may be done, unfairly, to third parties by an incautious manner of expressing reasons for judgment. It is not only fairness to the parties that should be operating as part of a judge's concern. Non-parties can often be seriously damaged by a judge's manner of expressing reasons for judgment. Sometimes this may be the result of mere thoughtlessness. A judge should never cause unnecessary hurt. (emphasis added)

29 Also relevant are the observations of Cahill V-P in NSW Professional Officers' Association v Forestry Commission (NSW) (1990) 39 IR 46 at 51 where his Honour said (in a passage cited with approval in the majority judgment in Reich v Client Server Professionals of Australia Pty Ltd (Administrator Appointed) (2000) 49 NSWLR 551 at [57]):

It is pertinent to observe, however, that where criticisms are considered to be justified in the context of a case such as this, care should be taken to ensure that they are couched in terms which are not immoderate or unnecessarily hurtful and that they do not extend beyond bounds which are reasonable and proper in the particular circumstances. (emphasis added)

30 Although a judge sitting on appeal has available all of the record at first instance and, usually, substantial arguments on behalf of both the appellant and respondent, it may be difficult even for a judge hearing an appeal to determine definitely whether observations and comments of the kind, to which the applicant has taken exception, are matters which were necessary for the decision at first instance or were matters which could fall within the description of Gleeson CJ as causing "unnecessary hurt" or that of Cahill V-P of being "couched in terms ... immoderate or unnecessarily hurtful". It is even more difficult to make an assessment of that situation when hearing an interlocutory application such as the present when, of necessity, there would not be available all of the papers which would be available to an appeal bench.

31 Subject to those possible difficulties in the Court making these assessments, it is nevertheless possible to understand the real sense of grievance the applicant plainly has, without it necessarily following that the particular observations of the trial judge were not necessary for making the decision. Even if the finding were made that the observations were not necessary for the making of the decision, and that there was thus a basis upon which it should be found that the judge caused "unnecessary hurt", it does not in my view amount, of itself, to the conclusion that there was a reasonable apprehension of bias such that the trial miscarried. I do not consider that the passages relied on by the applicant are sufficient to provide or demonstrate a reasonable apprehension of bias.

32 Whilst the arguments of the applicant raise issues relevant to an appeal, they are not such in this case that it could be reasonably concluded that she has any reasonable prospect of succeeding in the proposed appeal. Similarly, it could not be concluded that the achievement of justice between the parties and ensuring the proper administration of justice requires the applicant be given an extended time to appeal. Rather, justice between the parties is more likely to be achieved by finality of the litigation by the present application being refused.

33 Even if it be accepted, as I do, that the applicant does have a genuine sense of grievance about some aspects of the judgment at first instance, the grant of an extension of time within which to appeal would not be appropriate because the matters the subject of her concerns are not such that they would reasonably lead either to the grant of leave to appeal or the appeal being upheld. The application must therefore be refused.

Costs

34 The respondent has made an application that its costs of the present application be ordered on an indemnity basis. I do not consider that the circumstances of the present matter are such that costs should be granted on an indemnity basis. On the other hand the respondent has been successful in the proceedings and should therefore prima facie have an order for its costs. Nevertheless, the circumstances of the proceedings have a number of elements which may make it appropriate that any order for costs in favour of the respondent should have some limit placed upon them. Further, it would be inappropriate for either party, in the event that the respondent proceeds with an application that its costs be assessed, that the issue be deferred for the normal assessment process to occur or that either party, particularly the applicant, should be liable for any significant additional costs in respect of the assessment process.

35 Accordingly, and to ensure that any order for costs in favour of the respondent is reasonable having regard to all the particular circumstances of the case, I consider that it is appropriate that a sum certain be fixed. The Court therefore orders that, should the respondent wish to proceed further with its application for costs it shall, within 14 days of today, file with the Registrar an itemised assessment of its costs and ensure that a copy of the assessment is provided simultaneously to the applicant. The applicant shall, within seven days of that assessment being served upon her, advise the Registrar in writing of any objections she has to the assessment filed. The Court will then determine the amount that is to be ordered for the respondent's costs.

36 The Court makes orders in accordance with paragraphs [33] and [35] of these reasons.

_______________________________________

LAST UPDATED: 13/03/2003