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

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]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWIC 3
Decision Date: 01 March 2016

CaseChat Overview and Summary

The Industrial Relations Commission of New South Wales heard an appeal by Mr Beavan against a decision that dismissed his case for want of prosecution. The respondent was the Industrial Relations Secretary, who argued that Mr Beavan's application for review of the dismissal was not prosecuted with due diligence. The appeal was heard in the context of a previous decision in Beavan v Family and Community Services (Housing NSW), which was later retitled Beavan v Industrial Relations Secretary (No 1). This second appeal, referred to as Beavan v Industrial Relations Secretary (No 2), focused on the appropriate orders to be made following the quashing of the dismissal decision.

The central legal issue before the Court was whether the appropriate orders to be made following the quashing of the dismissal decision were those that were ordered by the Commissioner, or whether the matter should be remitted for further determination. The Court needed to determine whether it should quash the order and remit the matter to the Commissioner for redetermination, or if it should make orders itself. This required a consideration of the scope of the Court's appellate jurisdiction and the appropriate exercise of discretion in making orders.

The Court held that the appeal should be upheld and the order made by the Commissioner on 23 March 2015 should be quashed. It was determined that the matter should be remitted to Commissioner Newall for determination in accordance with the Court's decision in Beavan (No 1). The Court found that it was not appropriate to make the orders itself, given the specific circumstances of the case and the need for the Commissioner to re-evaluate the matter. The Court also noted that costs were reserved and that directions were given for the parties to submit their views on costs, with the possibility of a short oral hearing if necessary.

In conclusion, the Court granted leave to appeal, quashed the order made by the Commissioner, and remitted the matter to Commissioner Newall for redetermination. It also reserved costs and provided directions for the parties to submit their views on the matter, with an option for a short oral hearing if required. The Court further directed that the title of the judgment in Beavan v Family and Community Services (Housing NSW) [2016] NSWIC 1 be amended to Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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