PR937708 PR937708 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.45 appeal against decision in transcript made by Commissioner Raffaelli on 15 February 2002 Timothy Visscher (C2002/2103) s.45 appeal against decision PR931563 issued by Commissioner Raffaelli on 20 May 2003 Timothy Visscher (C2003/3997) s.170CE application for relief in respect of termination of employment Timothy Visscher and BHP (U1998/21195) JUSTICE MUNRO SENIOR DEPUTY PRESIDENT DUNCAN COMMISSIONER ROBERTS SYDNEY, 18 SEPTEMBER 2003 Appeal: termination of employment; refusal to disqualify; apprehension of bias; alleged failure to accord procedural fairness; allegation that misnomer of employer caused proceedings to be a nullity; weight of evidence; leave to appeal. DECISION [1] Mr Timothy Visscher is a Merchant Naval Officer certificated as a Master First Class. He was employed by one of the companies associated with the Broken Hill Proprietary Company Limited (BHP), now BHP Billiton. Raffaelli C found that Mr Visscher's employer was BHP Petroleum Pty Ltd. Subject to the determination of any point pressed on the appeal, we will adopt that reference and Raffaelli C's abbreviation of it to BHP-P. Mr Visscher was dismissed from his employment with BHP-P on 20 October 1998; he lodged an application on 10 November 1998 seeking relief under section 170CE of the Workplace Relations Act 1996 (the Act) against the termination of his employment. In that application he referred to his employer as "Broken Hill Pty Ltd - Seagoing ACN 006 480 548". [2] On 6 May 2002, Mr Visscher lodged a notice of appeal against a decision or an interlocutory ruling of Raffaelli C on 15 February 2002 whereby the Commissioner refused to disqualify himself from the further hearing of Mr Visscher's application. On about 7 June 2002, Mr Visscher's appeal against Raffaelli C's interlocutory ruling was stood over by consent to avail Raffaelli C's determination of the application before him. [3] Raffaelli C heard the substantive application in a hearing conducted over 17 days between March 1999 and 31 May 2002. On 20 May 2003, Raffaelli C dismissed the application 1 . Raffaelli C's published reasons for that decision extend to 55 pages. [4] On 4 June 2003, Mr Visscher appealed against the decision. The appeals were heard together. [5] For present purposes, Raffaelli C's decision may be sufficiently summarised as follows: 5.1 At [144] - [150] Raffaelli C adopted and developed the reasons he gave in transcript on 15 February 2002 for refusing to disqualify himself after 15 days of hearing. In substance Raffaelli C considered that there was no basis upon which a reasonable apprehension could be held by a reasonable person with the full comprehension of the facts of the case that he might not bring an impartial and unprejudiced mind to the resolution of it. 5.2 At [72] Raffaelli C noted that the reasons given by BHP-P for terminating Mr Visscher's employment were set out in a letter dated 20 October 1998: "You will be aware from previous letters to you, and from letters from BHP Petroleum's solicitors to your solicitor, that I have been considering the future of your employment. I have now determined that your employment should be terminated both on the grounds that you are medically unfit to work on an offshore facility and that you have engaged in conduct which has undermined the relationship of mutual trust and confidence between BHP Petroleum and yourself. In terms of your medical fitness, I have had regard to a report prepared on your return to work by Mr Cummins and also a letter from your doctor, Dr Grace, which was provided to me by Mr Holland. I note that you were given every opportunity to submit yourself to a further examination by Mr Cummins, to obtain, on certain conditions, Mr Cummins earlier report and to respond to our concern that neither Dr Grace nor the psychiatrists referred to by Dr Grace had outlined the circumstances in which they conducted their examination and their reasoning in reaching their conclusions. In terms of conduct on your part undermining the relationship of mutual trust and confidence, I have had regard to the circumstances of your visit to the Challis Venture in February this year and your subsequent failure to submit yourself to a further examination by Mr Cummins. In relation to your visit to the Challis Venture, I believe your demand that you be able to tape record conversations between yourself, myself, Mr Cummins and Mr Wratten served only to create an atmosphere of suspicion and tension and did nothing to indicate any willingness on your part to re-establish a harmonious working relationship. Your refusal to follow a direction by the Company to attend for further examination by Mr Cummins, and the reasons given for your non-attendance, further undermine the relationship of mutual trust and confidence. For obvious reasons, the Company has an interest in whether or not you are medically fit to perform your duties, both in terms of its obligations to you and its obligations to your fellow employees. It also has an interest in your commitment to accept direction from the Company in the course of your duties. Further, your insistence that you would not be examined by Mr Cummins until after you had his March report and refusal to meet our conditions on the release of that report, were unacceptable. The deletions proposed were simply to protect the interest of a third party and the requirement that there be no disclosure of the report other than for the purposes of responding to the report were entirely reasonable." (Exhibit V53)" 2 5.3 At [212] Raffaelli C made the finding that BHP-P's termination of Mr Visscher's employment on the ground of medical unfitness was a valid reason for purposes of paragraph 170CG(3)(a): "Thus by October, 1998, Mr Herrett had before him a detailed assessment made by Mr Cummins in March 1998, a brief report by Dr Grace which by its reference to the period from 1992 was at odds with Mr Visscher's own evidence to the Supreme Court of New South Wales, lack of any specifics in respect of two psychiatric examinations undergone by Mr Visscher in May 1998 and failure by Mr Visscher to avail himself of opportunities to see Mr Cummins again and to respond to the March 1998 report of Mr Cummins. In those circumstances, Mr Herrett had a basis for taking the view that Mr Visscher was medically unfit to work on an off-shore facility. BHP-P's termination of Mr Visscher was for the valid reason of medical unfitness." 3 5.4 At [215] - [216] Raffaelli C rejected the contention that Mr Visscher's conduct afforded BHP-P a valid reason to terminate his employment: "As to Mr Visscher's conduct, BHP-P also raised Mr Visscher's failure to see Mr Cummins for a further examination. As Mr Holland said, Mr Visscher never refused to see Mr Cummins (exhibit V50). Other considerations between Mr Visscher and BHP-P meant that Mr Visscher never saw Mr Cummins again. However I am not satisfied that Mr Visscher's conduct in the circumstances can be represented as a refusal to follow a direction of the company. I consider that BHP-P did not have a valid reason to dismiss Mr Visscher because of his conduct." 4 5.5 Raffaelli C then had regard to the considerations in paragraphs 170CG(3)(b); 5 and (c), 6 concluding that Mr Visscher " was notified of the fact that he was being terminated including because of what the company viewed as his medical unfitness ", and that Mr Visscher was given an opportunity to respond to the issue of his fitness. Raffaelli C observed that he did not accept that those considerations covered by paragraphs 170CG(3)(d) to (e) were relevant, before concluding: "On balancing all the considerations that the Commission considers relevant, I determine that the termination of Mr Visscher by BHP-P was not harsh, unjust or unreasonable. In so finding I have also given due regard to the need for a " fair go all round " to be accorded to both Mr Visscher and BHP-P as necessitated by s.170CA(2)." 7 [6] To those reasons and conclusions, Raffaelli C added a reference to what he described as an important matter of substance that concerned an admission by Mr Visscher in cross-examination that a statement adopted by him in proceedings in the New South Wales Supreme Court as true and correct was incorrect. After referring to the circumstances, Raffaelli C concluded: "Mr Visscher's own words indicate that he had perjured himself or if that was not the case indicated that he was prepared to say he had done so in order to enhance his case before this Commission. Either way, Mr Visscher has revealed himself to be of seriously flawed character. If the Commission had determined that Mr Visscher's termination had been harsh, unjust or unreasonable and had further determined pursuant to sections 170CH(1) and (2) to provide a remedy, it would not, in the circumstances, have ordered Mr Visscher's reinstatement. It would have been inappropriate for BHP-P to have as an employee in a responsible position such a dishonest person. Equally, Mr Visscher's admitted untruthfulness before Justice Rolfe would have told against his being awarded certainly substantial, possibly any, monetary compensation pursuant to s.170CH(7)." 8 GROUNDS OF APPEAL AND SUBMISSIONS ON BEHALF OF APPELLANT [7] Mr Visscher's consolidated notice of appeal marshalled his grounds of appeal under six broad headings, which with some interpolations may be summarised as follows. We summarise the submissions at the same time: 7.1 The proceedings were a nullity: for reasons related to the misnomer of the employer and associated failures to observe the process required by section 170CF in relation to the parties to the application. 7.2 Error of law associated with the Commission's or Raffaelli C's purported correction to record BHP-P as the relevant employer. 7.3 Error of law in not allowing the Applicant a fair opportunity to present his case . Under this heading, Mr Visscher objected to directions given by Raffaelli C about the conduct of his case and the matters to be treated as relevant. 7.4 Error of law in refusing to disqualify in circumstances where constituents of apprehended bias were made out from conduct: · allowing proceedings to continue without determining proper parties; · not rebuking the Respondent's legal representatives for an interference with or suppression of documentary evidence; · displaying a lack of judicial balance in the respective admission of evidence about the credit of the Applicant and refusal of evidence about the credit of BHP-P; · breaching an undertaking to allow the recall of BHP-P witness, Michael Herrett for cross-examination about belatedly produced documents; and when a recall did occur, unduly restricting cross-examination; · rationalising the conduct of BHP-P's legal representative in verifying the identity of the employer; · admitting evidence claimed to be given by the Applicant in the New South Wales Supreme Court; or evidence that was not relevant; · referring to the New South Wales Supreme Court proceeding and making findings adverse to the Applicant without a thorough examination; · presiding over a dispute settlement proceeding in which Mr Visscher was involved as an employee of another employer; and otherwise for confusing actual bias with apprehended bias, and failing to ensure that justice is seen to be done. 7.5 Error of law in failing to accord procedural fairness and in particular by: · permitting the Respondent to not comply with Summons to produce documents and failing to rebuke for contempt of the Commission; · failing to make enough allowance for the Applicant's disadvantage as a litigant in person; · refusing an adjournment to Applicant to cope with Respondent's non-compliance with requirement to produce documents; · refusing to allow immediate recall of Mr Herrett, and subsequent restriction of the right to cross-examine Mr Herrett. 7.6 Error of law in finding termination was not harsh, unjust or unreasonable particularly by reason of: · accepting and giving weight to the evidence of Mr Herrett and Mr Cummins. Under this heading, Mr Visscher set out a list of points against the acceptance of Mr Cummins' evidence as not expert; as not disinterested; as incorrect, misleading, or contradictory evidence; or as not given with the Applicant's informed consent to be medically examined. Mr Herrett's evidence was also attacked on the points that it was not expert and was inconsistent with other evidence given. Finally, Mr Visscher relied upon BHP-P's failure to obtain a second medical opinion to address suggested conflicting medical opinion; · deciding that the Applicant had been notified of the reason for the termination of his employment: when such a finding was not reasonably open on the evidence given by Mr Herrett; was not made after proper consideration of the responsibilities of the employer under awards and statutes; was not supportable by a subsidiary finding that the Applicant declined to respond to the employer's claim that he was medically unfit; and was unsustainable if all relevant considerations were properly evaluated and taken into account. [8] In his written submissions and oral presentation, Mr Visscher advanced positions or details that went beyond those grounds, without departing from the substance. In our summary at [6], we have added reference to the more important of the particulars relied upon. [9] Mr Visscher's written submissions developed the grounds relied upon citing a range of case law and legislative sources. Mr Visscher appeared in person to speak to those submissions. SUBMISSIONS ON BEHALF OF RESPONDENT [10] Mr B. Lawrence of counsel, who appeared by leave for BHP-P, opposed the grant of leave to appeal. The primary points of the submissions made on behalf of BHP-P may be summarised as follows: 10.1 and 10.2 The proceedings were a nullity and the purported correction of the record an error of law: · although the original application (dated 9 November 1998) named the employer as "Broken Hill Pty Ltd - Seagoing ACN 006 480 548" the employer's notice of appearance (dated 18 November 1998) stated the employer's name was BHP Petroleum Pty Ltd; · during the next few years the appellant adopted various names for the employer but the respondent consistently referred to itself as BHP Petroleum Pty Ltd; · the applicant swore a statement on 23 September 1999 in which he asserted that he was employed by BHP Petroleum Pty Ltd; · the respondent suggested that the applicant's position on the identity of his employer changed and that this change was related to the commencement of a salvage claim by the applicant: an employee had no standing to make a salvage claim; · the related claim by the appellant that Raffaelli C's actions on the name issue constitute apprehended bias is vexatious; · in cases where the parties have agreed, or even tacitly agreed, to the insertion of a new employer the powers under s.111 (1), in particular paragraphs (o) and (p) are available to the Commission; · in May 1994 in Visscher v. BHP Petroleum Pty Ltd 9 McClellan J found that Mr Visscher was employed by BHP Petroleum Pty Ltd on 29 May 1994. The respondent argued that an issue estoppel operates in respect of that finding. 10.3 Error of law in not allowing the applicant a fair opportunity to present his case. The respondent's reply to this head is under the other headings in this summary. 10.4 Bias - or error of law in refusing to disqualify · the test of apprehended bias is stated in Johnson v. Johnson 10 : ". . . whether a fair-minded observer might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." · the test must be answered by reference to the particular circumstances of the matter Livesey v. New South Wales Bar Association 11 and the test is objective. · notwithstanding the Commissioner's involvement in an earlier matter involving the applicant's promotion the applicant had not established apprehended bias; · further, the various rulings in the instant case said to constitute bias did not do so on any objective test and the allegation that the Commissioner favoured the respondent unfairly in his rulings is without foundation, the items referred tp are set out in detail in the summary of the grounds of appeal; 12 · the findings on credibility, "dishonest person" and the like were based on material before the Commissioner, were relevant and, coming after proceedings were complete, were not evidence of apprehended bias, credibility was an issue; · the Supreme Court proceedings in 1996 were relevant and supported, through Dr Strum's report admitted as evidence in those proceedings, the company's (Mr Cummins) conclusions about the applicant's health in 1995. 10.5 Error of law failing to accord procedural fairness · the documents summoned for production were available at proceedings and placed in a room near the Hearing Room available to the applicant's advisor, Mr Holland; · Mr Herrett was properly made available for cross-examination. 10.6 Error of law in finding termination was not harsh, unjust or unreasonable · there is no basis for the assertion that improper weight was given to the evidence; · the regulatory provisions of the Floating Production Facilities Award and the Marine Orders do not have determinative effect in the circumstances of this case; they are for other purposes and the Commission should draw the inference that Dr Grace's evidence would not have been helpful to Mr Visscher, on their own Dr Grace's certificate had no probative value as they did not concern themselves with the applicant's psychological fitness; · there was no invasion of privacy created by Mr Cummins' involvement in the trip to the Challis Venture as the applicant knew Mr Cummins had been engaged to provide advice on the applicant's psychological fitness; · the applicant was given a proper opportunity to respond to Mr Cummins report of March 1998 - the Commissioner had sufficient material to reach this conclusion. PRINCIPLES OF APPEAL [11] The appeal arises under Part VIA of the Act and is governed by s.170JF. The section provides: "(1) An appeal to a Full Bench under section 45 may be instituted by any person who is entitled under section 170JD to apply for the variation or revocation of an order under this Part. (2) For the avoidance of doubt, an appeal to a Full Bench under section 45 in relation to an order made by the Commission under Subdivision B of Division 3 may be made only on the grounds that the Commission was in error in deciding to make the order." [12] The High Court of Australia considered the nature of an appeal under s.45 of the Act in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission 13 Gleeson CJ, Gaudron and Hayne JJ, in a joint judgment, said: "Because a Full Bench of the Commission has power under s 45 (6) of the Act to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under sub-s (7) are exercisable only if there is error on the part of the primary decision-maker. And that is so regardless of the different decisions that may be the subject of an appeal under s 45 ." [13] The nature of the error that is necessary for a Full Bench review of a discretionary decision of the kind here under consideration was re-stated in Coal & Allied in the following way: "Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process [See Norbis v Norbis (1986) 161 CLR 513 at 518-519 per Mason and Deane JJ]. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms: `If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.' [(1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ]'" [14] That is the position if a decision, or part thereof, is properly characterised as discretionary. It is otherwise if the decision is concerned with a jurisdictional point. The decisions of the Federal Court in Pawel v. Australian Industrial Relations Commission 14 and Sammartino v. Commissioner Foggo 15 suggest that if a jurisdictional point is sufficiently arguable the appropriate course is for the Full Bench to itself determine the jurisdictional point. These decisions are the subject of a comment by a Full Court of the Federal Court in Miller v. Australian Industrial Relations Commission 16 : "The applicant relied here upon the reasoning in Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231. It was there held by Branson and Marshall JJ that the jurisdictional fact which conditions the exercise of the powers of the Commission under s 170CE (1) is that the applicant is "an employee whose employment has been terminated by the employer" within the provision; so that, on an appeal, the Full Bench would be concerned with whether the Commissioner had reached the right conclusion as to whether the applicant was such an employee; and thus it would not be concerned simply with whether the Commissioner's conclusion was reasonably open." We apply these principles in this matter. GRANT OF LEAVE [15] There are a number of jurisdictional points which are arguable and accordingly we grant leave as far as they are concerned. They are indicated in our consideration of them. For reasons which are given subsequently we do not find that the discretionary issues raised by the appellant are sufficiently compelling as to warrant the grant of leave. In those issues we can not find that the observations in House v. The King 17 are met. JURISDICTIONAL POINTS [16] Mr Visscher submitted that the proceedings were a nullity because of a misnomer of the employer. We see no substance in the point because, we are satisfied that BHP Petroleum Ltd was the employer. The evidence of Mr Herrett about the identity of the employer, that BHP Petroleum Pty Ltd was the employer and that BHP Transport Pty Ltd provided payroll services is not disproved 18 . The consistency of the respondent's own references to itself during the case which commenced with the formal notice of appearance, while not a primary point, never the less supports Mr Herrett's evidence. Independently, the determination by McClellan J in Visscher v. BHP Petroleum Pty Ltd and ors 19 that Mr Visscher's employer was BHP Petroleum Ltd created an estoppel of the nature of that discussed in the Full Bench decision in Construction, Forestry, Mining and Energy Union v. Pacific Coal Pty Ltd and others 20 . We emphasise that this is an independent point and our conclusion on the correct identity of the employer does not depend on this. [17] A point which we determine under this head is the correction of the record by the Commissioner in substituting BHP Petroleum Pty Ltd for BHP - Seagoing. Raffaelli C noted in his decision that the point had to be resolved and at paragraphs [106] to [123] dealt compendiously with the matter. We have already stated that we conclude for ourselves that BHP Petroleum Pty Ltd is the correct employer. [18] The Commissioner relied on " s.111 (1) to correct any irregularities". The particular power in s.111 (1) is subparagraph (q). It states that the Commission has power to: "Correct, amend or waive any error, defect or irregularity whether in substance or form." That is what was done in this case. There was some debate as to whether s.111 (p) was available because it provides for the Commission to allow the amendment and this suggests that it is not open to the Commission to amend without a party seeking it. BHP Petroleum Pty Ltd was clearly seeking this and the power was available under s.111 (p). [19] The extent of the powers conferred by s.111 (1) is not defined. It is extremely wide. In re Coldham; ex p. Australian Building Construction Employees and Builders Labourers Federation 21 Gibbs CJ, Wilson and Dawson JJ were concerned with, amongst other powers, those in s.41(1)(k) and (l) of the Conciliation and Arbitration Act 1904 . Those two subparagraphs were in very similar terms to s.111 (1)(p) and (q) of the Act. Their honours said 22 : "This Court of course recognizes that the Commission is entitled to determine its own practice, consistently with the provisions of the law and the requirements of natural justice. But the decision in Amalgamated Television Services Pty. Ltd. v. Professional Radio Employees' Institute of Australasia did not merely lay down a practice - it depended on the true construction of the Act. In our opinion that decision proceeded on too narrow a view of the effect of the Act. Section 41 applies "in relation to" "any . . . proceedings before the Commission". The word "proceedings" has frequently been said to have a wide and general application, and it would certainly include both an appeal and an application for an amendment or an extension of time. If a notice of appeal has been given, and, when the matter comes before a Full Bench, it appears that the notice is so defective in substance that it fails to institute the desired appeal, an application for an order allowing an amendment, or correcting the defect, or extending the time for lodging the notice of appeal, either forms part of, or in itself constitutes, proceedings before the Commission in which the powers given by s.41 to make an order of those kinds can be exercised, unless some other section of the Act indicates that the provisions of s.41 are inapplicable to the particular proceedings in question." It is particularly relevant to the argument advanced by Mr Visscher that the Court would permit the use of the power in circumstances where a notice is so defective that it fails to institute the desired proceeding. In that case it is still open to the Commission to use the power. Raffaelli C's action in correcting the record is well within the scope of s.111 (p) and (q) as discussed in Coldham . [20] It is well settled that the Commission's proceedings are subject to the rules of natural justice. In a unanimous decision, the High Court, concerned with a predecessor of the Commission, in R v. Commonwealth Conciliation and Arbitration Commission ex p. Angliss Group 23 said: "Nor can there be any doubt that members of that Commission under the Act are bound to act in a judicial manner or that the common law principles of natural justice are applicable to the Commission and its members in relation to such hearings. But it must be borne in mind that these principles are not to be found in a fixed body of rules applicable inflexibly at all times and in all circumstances. Tucker L.J. said in Russell v. Duke of Norfolk (1): `The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.' This passage was approved by the Privy Council in University of Ceylon v. Fernando (2), and was used by Kitto J. in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (3). There his Honour observed: `What the law requires in the discharge of a quasi-judicial function is judicial fairness. . . . that is fair in a given situation depends upon the circumstances.'" The Commission's proceedings are subject to the rules of natural justice, including the rule against reasonable apprehension of bias: Re Polites ex p. Hoyts Corporation Pty Ltd 24 : [21] We are prepared to accept that the allegation of apprehended bias gives rise to a question of jurisdiction. In this we are following the Full Bench in Commonwealth Bank of Australia v. A.D. Heap 25 but we acknowledge that the correctness of that proposition in Heap was doubted without deciding by a Full Court of the Federal Court in Heap v. Australian Industrial Relations Commission 26 . [22] We start from the point that the test to be applied is whether a fair minded lay observer might reasonably apprehend that a judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. [Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v. Johnson 27 . The question is therefore was Raffaelli C in error in refusing to disqualify himself from the proceedings as requested by the appellant because a fair minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial and unprejudiced mind to the resolution of the questions he was required to decide. [23] We have referred already to the examples of alleged apprehended bias and the consequent failure to disqualify on the grounds of apprehended bias put forward by Mr Visscher. In short they are: · refusal of adjournment and later refusal to recall Mr Herrett contrary to an earlier undertaking to allow this; · the restriction on cross-examination imposed when Mr Herrett was recalled; · lack of balance in allowing or excluding evidential material; · sitting on unrelated matter in which Mr Visscher was indirectly involved. [24] We have considered all of the instances quoted by Mr Visscher in his written submission and at the hearing. In our opinion, this ground of the appeal confuses the manner of exercise of powers with a reasonable apprehension of bias or actual bias. In each case the Commissioner exercised his powers consistent with an appropriate use of discretion as to whether or not he would do what was sought by the appellant. There is no error consistent with the principle espoused in Johnson v. Johnson manifest in the Commissioner's approach to the application to disqualify himself. There is no substance to the grounds of complaint. [25] As far as the procedural fairness points are concerned they are all matters of detail. In proceedings of the kind before the Commissioner it is not appropriate to isolate from the circumstantial context rulings that were clearly intended to maintain a reasonable rate of progress. It is of course a question of balance but we find no fault with the position arrived at by the Commissioner in any of the instances referred to. The cross-examination permitted allowed the appellant sufficient scope to test evidence and to develop issues. Mr Visscher's elaboration to us about the points of detail to which he was disadvantaged do not go to matters of sufficient substance to warrant intervention. That is, the rulings and directions of the Commissioner were such as would not attract the attention of the fair minded lay observer. [26] The 1995/1996 Supreme Court proceedings and the attack on Mr Visscher's credit which these proceedings brought forth from the Commissioner were a significant consideration in the determination of the matter by the Commissioner. However, having regard to the conduct of the case BHP-Petroleum Pty Ltd manifestly intended to rely on details of the proceedings. This applied effectively to both the Supreme Court proceedings. It is apparent from the record that BHP-Petroleum Pty Ltd manifestly intended to rely upon details of the 1995/1996 proceedings. An example of this is to be found in the first witness statement of Mr Herrett 28 , at paragraph 74.3, which as quoted by the Commissioner, states: " 74.3 BHP-P's concerns as to Mr Visscher's fitness was heightened by the outcome of proceedings in the New South Wales Supreme Court, where Mr Visscher sought compensation for the injury sustained in the Persian Gulf. The decision of Rolfe J, relying as it did on Mr Visscher's evidence, brought Mr Visscher's fitness for offshore duties into serious question." [27] As for the 2002 decision of McClellan J, there is sufficient in paragraph [120] of Commissioner Raffaelli's decision to establish that those proceedings were relevant and were referred to as such during the hearing: "[120] The Supreme Court's determination should suffice. It was after all Mr Visscher that raised the role that the Supreme Court would play in determining the identity of the employer. Mr Visscher's letter to the Commission on 23 August, 2001 included: `I also bring to your attention that the question of the identity of my employer is now an issue which will, in all likelihood, be determined by the Supreme Court of New South Wales. This issue is subject to further directions in the Supreme Court on 5 October 2001, and I am hopeful that a decision regarding the identity of my employer will be made soon thereafter. Please see a copy of Short Minutes of Order, attached. I am confident the Supreme Court will find that my employer at all relevant times to be BHP Transport Pty Ltd, or other entity having the same ACN. In that case, I will ask that the proceedings before you be set aside on the basis the BHP Petroleum Pty Ltd have no business before the AIRC with regard to myself, and that the matter be held in accordance with my original application which identifies BHP Transport Pty Ltd, or there entity having the same ACN, as my original employer.'" [28] The details of these proceedings relied upon were relevant for the component of the factual matrix which this case has established. The examination as to credit was in the circumstances quite legitimate. There was no error in the rulings made by the Commissioner and there is no substance to the procedural fairness point. [29] Those are the matters which may be described as jurisdictional. We conclude that there is no error with Raffaelli C's findings on them. We are satisfied the Commissioner was correct in the jurisdictional points he had to consider. [30] There is a series of points raised by Mr Visscher which arise from the exercise of a discretion. They are to be considered in light of House v. The King 29 . [31] The first is whether or not there was a valid reason to terminate Mr Visscher's employment. Raffaelli C found that there was. In paragraph [212] of his decision the Commissioner states: "[212] Thus by October, 1998, Mr Herrett had before him a detailed assessment made by Mr Cummins in March 1998, a brief report by Dr Grace which by its reference to the period from 1992 was at odds with Mr Visscher's own evidence to the Supreme Court of New South Wales, lack of any specifics in respect of two psychiatric examinations undergone by Mr Visscher in May 1998 and failure by Mr Visscher to avail himself of opportunities to see Mr Cummins again and to respond to the March 1998 report of Mr Cummins. In those circumstances, Mr Herrett had a basis for taking the view that Mr Visscher was medically unfit to work on an off-shore facility. BHP-P's termination of Mr Visscher was for the valid reason of medical unfitness." The attack on that finding is essentially founded on the contention that insufficient evidence exists to justify it or it is against the weight of evidence. [32] We consider that there was no error in the finding once the conclusion is based upon or seen in the context of the evidence as a whole. [33] The letter of termination is set out in paragraph [5.2]. Clearly two grounds were relied on, one which is referred to as the medical condition and the second as conduct in relation to the failure to comply with requests for medical assessment. The Commissioner found that the second of these was not established. The finding of a valid reason therefore depends on the first being justified. [34] As far as this finding is concerned we believe that it emerges from an appreciation of the evidence as a whole. Mr Cummins' evidence alone probably would not be sufficient in all the circumstances. Neither Mr Cummins nor Mr Herrett was technically an expert in medical judgement although Mr Cummins was qualified as a psychologist. He was qualified as an expert on attitudinal aspects. His expertise as a psychologist was established by his qualifications and experience. [35] Mr Visscher referred to a number of cases on the issue of experts, among them being Cabal v. United Mexican States 30 . There is in that decision of a Full Court of the Federal Court an observation on expert evidence which is relevant to the present case. Cabal concerned an extradition application and evidence on the political institutions of Mexico was given by a number of alleged experts. At p. 362 of the report the Court said: "Notwithstanding the fact that the learned primary judge's review was conducted on the papers, and without any opportunity to consider the demeanour of the witnesses, the weight to be accorded to the evidence of the experts was primarily a matter for his Honour to determine. This Court can consider whether he fell into appealable error in that regard but it will not approach that evidence as though this were a rehearing de novo in which his Honour's views count for nought. If, after giving full weight to his Honour's views, we are persuaded that the conclusions which he reached were erroneous we must set aside his findings of fact. We cannot however simply substitute for his Honour's findings of fact those findings which we would have made had we been the judges on review who determined this matter at first instance." That is the situation here and, applying the observations of the Full Court in Cabal , we are satisfied that the Commissioner was not in appealable error in reaching the conclusions he did on the evidence and the weight he gave it. [36] The evidence should be read in perspective with that given by Dr Strum in the 1995-1996 Supreme Court proceedings. Evidence in that caused Mr Visscher's countervailing evidence to be flawed. Dr Kitson's analysis was impressive. However as cross-examination of her showed and the material before Justice Rolfe corroborates, her report was not founded upon a full and candid disclosure of all relevant circumstances and the history of Mr Visscher's stress, disorders or his management or symptoms. In all we consider that the decision was reasonably open it was certainly not an error sufficient to establish the requirements for intervention ordained by House v. The King . [37] As to the finding that, in accord with s.170CG(3)(b), Mr Visscher was notified of the reason, medical unfitness, for the termination of his employment it is sufficient to say that finding was open on the terms of the letter which is quoted in para. [5.2] above. That is sufficient for the statutory requirement but the evidence in general leads to a similar conclusion. [38] Section 170CG(3)(c) requires the employee be given an opportunity to respond. At para. [218] of the decision Raffaelli C outlined the reasons he concluded at para. [219] that he was satisfied Mr Visscher was aware that his continuing employment was under review and that an important consideration was his fitness. The particulars given in para. [218] and the analysis in paras. [220] - [234] which we do not set out amply justify this conclusion. [39] It was said that the Commissioner did not properly consider the effect of the Floating Production Facilities Award 1989 , the Navigation Act 1912 31 and the Marine Orders Part 9 particularly in admitting as evidence the report of a medical examination conducted in March 1998 32 . It was claimed that the statutory provisions determined the medical issue. The respondent submitted that the statutory provisions were confined to licensing matters, did not allow for psychological fitness and were not determinative on the employer/employee relationship. We agree: [40] Dr Grace's letter 33 and the contemporaneous certificate made no effective reference to the incidents in Mr Visscher's service from 1992 to 1998. There was evidence of incidents which warranted comment - the Persian Gulf matter being one. While we do not hold that, in the circumstances, there was a strong inference in the Jones v. Dunkel 34 sense to be drawn against Mr Visscher by the failure to call Dr Grace it does not assist him and the conclusion reached by Raffaelli C on the medical issue was made more supportable by that. There was no error on the Commissioner's part. [41] The Commissioner held that the appellant's conduct, his lack of cooperation, was not a valid reason for termination. We accept that Mr Visscher was not compellable to attend on Mr Cummins. His failure to do so, and the grounds he advances, at the highest, could have been a contributing consideration in the Commissioner's evaluation of the evidence that was available about his ongoing health status. In substance, the medical question was a hybrid question of mental health and behavioural disposition: was he a person whose overall health status prevented him from being a person adequately equipped to meet the reasonable requirements that his employer would expect of a skilled employee operating in the Floating Production Facilities environment. In this complex field we do not consider the reasoning of Raffaelli C discloses any error on the point. CONCLUSION [42] Mr Visscher's argument was a compendious and detailed exposition of issues he considered were raised by the decision of Raffaelli C and which we have gathered under the headings above. We have considered carefully the argument put while we do not consider it necessary to comment on any and every detail. We are satisfied that on the discretionary issues no error is made within the parameters espoused in House v. The King 35 is established. As we found earlier, the jurisdictional points are not established. [43] For those reasons we dismiss both appeals. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances: The appellant in person. B. Lawrence for the respondent. Hearing details: 2003. Sydney: July 29. Printed by authority of the Commonwealth Government Printer <Price code F> 1 PR931563. 2 PR931563. 3 Ibid PR931563. 4 Ibid PR931563. 5 Ibid PR931563 at [217]. 6 Ibid PR931563 at [218] - [223]. 7 Ibid PR931563 at [225] - [226]. 8 Ibid PR931563 at [240] - [242]. 9 Visscher v BHP Petroleum Pty Ltd (2002) NSWSC, McClellan J 10 Johnson v Johnson (2000) 201 CLR 488 11 Livesey v New South Wales Bar Association (1983) 151 CLR 288, 299-30 12 Summary of the grounds of appeal, see paragraph [6] 13 74 ALJR 1348 ( Coal & Allied ). Gleeson CJ, Gaudron and Hayne JJ 14 Pawel v AIRC (1999) FCA 1660. 15 Sammartino v Commissioner Foggo (1999) FCA 1231. 16 Miller v AIRC (2001) FCA 486. 17 House v. King (1936) 55 CLR 499 18 See PN155-6 of transcript. 19 Visscher v BHP Petroleum Pty Ltd (2002) NSWSC 65. 20 CFMEU v Pacific Coal Pty Ltd and others , Print PR935308 at paras. [98] to [109]. 21 (1985) 159 CLR 522, Gibbs CJ, Wilson and Dawson JJ 22 at pp.528-9 23 R. v Commonwealth Conciliation and Arbitration Commission ex p. Angliss Group in (1969) 122 CLR 546 at 552 24 Re Polites ex p. Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 85. 25 Commonwealth Bank of Australia v. A.D. Heap , Print PR920041. 26 Heap v Australian Industrial Relations Commission, N1121 of 2002, 7 March 2003. 27 (2000) 201 CLR 488 at 492. 28 First witness statement of Mr Herrett Exhibit BHP1, para. 74.3 29 (1936) 55 CLR 499 at 505 and see paragraph [12] hereof. 30 (2001) 108 FCR 311. 31 Section 425(1AA). 32 Exhibit BHP 24. 33 Exhibit V 54. 34 (1959) 101 CLR 298 35 House v. King (1936) 55 CLR 499