Beavan v Industrial Relations Secretary (No 2)

[2016] NSWIC 3

Industrial Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Beavan v Industrial Relations Secretary (No 2) [2016] NSWIC 3
Hearing dates:	17 and 25 February 2016 (written submissions)
Date of orders:	01 March 2016
Decision date:	01 March 2016
Before:	Walton J, President
Decision:	The Court makes the following orders: 1 The title of the judgment in Beavan v Family and Community Services (Housing NSW) [2016] NSWIC 1 shall be amended to: Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1. 2 To the extent that leave is required, leave to appeal is granted. 3 The appeal is upheld. 4 The order made by Commissioner Newall of 23 March 2015 is quashed. 5 The matter is remitted to Commissioner Newall for determination in accordance with the decision of the Court in Beavan (No 1). 6 Costs are reserved. 7 The appellant shall file and serve any submissions in respect of costs on or before 4.00pm, Tuesday 15 March 2016. Liberty to apply is granted to each party to make submissions in reply in writing. In the exercise of such liberty, advice should be provided as to the attitude of the opposing party in that respect and a draft timetable. 8 Any judgment as to costs will be made on the papers unless there is an application for a short oral hearing by either party or the Court forms a view that it would be assisted by further oral submissions from the parties.
Catchwords:	ORDERS – dismissal – public sector appeal – application dismissed for want of prosecution – appeal under s 197B(1) – decisions on questions of law – errors of law – question as to appropriate orders – orders made – to extent required, leave to appeal granted – appeal upheld – orders below quashed – matter remitted to Commissioner Newall – costs reserved – directions for submissions re costs – direction as to respondent’s correct title
Legislation Cited:	Civil Procedure Act 1995 Government Sector Employment Act 2013 Industrial Relations Act 1996 Uniform Civil Procedure Rules 2005
Cases Cited:	Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1
Category:	Consequential orders (other than Costs)
Parties:	Joanne Kelly Beavan (Appellant) Industrial Relations Secretary (Respondent)
Representation:	Counsel: Mr A T Britt (Appellant) Ms K A Edwards (Respondent)   Solicitors: Marsdens Law Group (Appellant) Legal Services Branch, Department of Family & Community Services NSW (Respondent)
File Number(s):	2016/18022 (IRC 210 of 2015)
Decision under appeal	Court or tribunal: Industrial Relations Commission Jurisdiction: Industrial Relations Commission Citation: Ex Tempore decision delivered 23 March 2015 Date of Decision: 23 March 2015 Before: Newall C File Number(s): IRC 531 of 2014

Judgment

1. On 10 February 2016, the Court determined an amended application for leave to appeal and appeal (‘the amended appeal’) brought by Ms Joanne Kelly Beavan(‘the appellant’) pursuant to s 197B of the Industrial Relations Act 1996 (‘the Act’) against a decision of Newall C in matter number IRC 531 of 2014: Beavan v Family and Community Services (Housing NSW) [2016] NSWIC 1 (‘Beavan (No 1)’). The Court found that the reasoning in the impugned decision was possessed of appealable decisions on questions of law and errors had been demonstrated in that respect (see [163] to [165] of Beavan (No 1)).

2. The Court deferred, however, making orders until further hearing from the parties. At [166] to [171] the Court observed:

[166] The appellant sought the following relief in paragraph 10 of the appeal:

10.1 Leave to appeal granted.

10.2 The appeal is upheld.

10.3 The Commissioner's orders of 23 March 2015 are quashed.

10.4 The proceedings are returned to the Commissioner for programming and determination.

[167] Given the conclusions reached in [20] of this judgment, the appropriate form of order for the first of the claims is that, if leave to appeal is required, the leave is granted.

[168] The form of relief sought in paragraph 10.2 should be granted given the errors of law found in this judgment.

[169] Turning to the third ground of relief, the errors of law found in this judgment are such that the orders made by the Commissioner at first instance cannot stand. There is no discussion before the Court as to whether the orders should be quashed or set aside. In the circumstances, it would appear appropriate to make the order sought in paragraph 10.3, namely, that the orders of the Commissioner made on 23 March 2015 are quashed.

[170] That brings to consideration the last order sought.

[171] It was not entirely clear whether the final order sought by the appellant was predicated upon the provisions of s 197B(2)(a), namely, a remitter of a matter to the Commission for determination in accordance with this judgment or an alternative form of order that the matter be determined by this Court as if the Court were re-exercising the discretion exercised by the Commissioner under r 12.7. Given doubts may exist as to whether the Court may exercise the latter power under s 197B(2), it seems appropriate the Court give the parties a short opportunity to make submissions as to the form of relief that is appropriate having regard to this judgment. A related consideration would be whether any other orders should be made under s 197B(2) such as the expedition of any proceedings or other procedural matters.

3. In the result, the Court made the following direction in furtherance of the final disposal of the matter (at [172]):

The appellant shall file and serve further submissions in writing as to the relief claimed (and any amended orders sought) within seven days of this judgment and any reply by the respondent shall be filed and served within a further seven days. Accordingly, I direct that the appellant file and serve any further submissions as to the relief claimed in the light of this judgment on or before 4pm 17 February 2016. Any further judgment as to orders to be made in the disposition of the appeal will be undertaken on the papers unless there is an application for a short oral hearing or the Court forms a view that it would be assisted by further oral submissions of the parties.

4. This judgment concerns the appropriate form of orders to be made in the disposal of the amended appeal.

5. On receipt of written submissions filed pursuant to the direction referred to above, the appellant contended that the Court should remit the matter to the Commission pursuant to s 197B(2)(a) of the Act for determination. The respondent, in their written submissions, agreed with that course. The Court shall, accordingly, make orders in conformity with its observations at [166] to [171] of Beavan (No 1) and, with respect to the relief sought in 10.4 of the amended appeal, those submissions.

6. The appellant also sought an order that the respondent pay the appellant’s costs as agreed or, if disputed, as assessed pursuant to s 181(1) of the Act, s 98 of the Civil Procedure Act 2005 and r 42.1 of the Uniform Civil Procedure Rules 2005. No submissions were advanced in support of that application (it may be noted that no orders were made to that effect in Beavan (No 1)).

7. The respondent resisted the appellant’s application for costs, submitting that the Court should order each party to bear their own costs of the appeal. The respondent made reasonably lengthy submissions in support of that position. It is appropriate that the Court receives submissions from the appellant before determining the issue of costs. Hence, costs shall be reserved and a timetable established to resolve that issue. In the absence of an application to do otherwise, the question of costs will be determined on the papers.

8. Before making orders upon the amended appeal, I propose to deal with an issue raised for attention in Beavan (No 1) at [12], namely, the correct title of the respondent. The preliminary view expressed by the Court was that the respondent’s title should be amended from Family and Community Services (Housing NSW) to the Industrial Relations Secretary having regard to s 50 and Sch 1 of the Government Sector Employment Act 2013. The respondent accepted that preliminary view in its further written submissions. The title of this judgment already reflects that approach. It is appropriate that the Court also alter the title of the Court’s judgment in Beavan (No 1).

9. ORDERS

10. The Court makes the following orders:

1. The title of the judgment in Beavan v Family and Community Services (Housing NSW) [2016] NSWIC 1 shall be amended to: Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1.

2. To the extent that leave is required, leave to appeal is granted.

3. The appeal is upheld.

4. The order made by Commissioner Newall of 23 March 2015 is quashed.

5. The matter is remitted to Commissioner Newall for determination in accordance with the decision of the Court in Beavan (No 1).

6. Costs are reserved.

7. The appellant shall file and serve any submissions in respect of costs on or before 4.00pm, Tuesday 15 March 2016. Liberty to apply is granted to each party to make submissions in reply in writing. In the exercise of such liberty, advice should be provided as to the attitude of the opposing party in that respect and a draft timetable.

8. Any judgment as to costs will be made on the papers unless there is an application for a short oral hearing by either party or the Court forms a view that it would be assisted by further oral submissions from the parties.

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Amendments

02 March 2016 - Para 1 - Appellant's surname inserted.

Decision last updated: 02 March 2016