Casey v Transport Appeal Boards & Anor

[2007] NSWSC 485

CITATION:	Casey v Transport Appeal Boards & Anor [2007] NSWSC 485
HEARING DATE(S):	25 October 2006
JUDGMENT DATE :	15 May 2007
JURISDICTION:	Common Law Administrative Law List
JUDGMENT OF:	Simpson J
DECISION:	Summons dismissed with costs
CATCHWORDS:	PRACTICE – jurisdiction of Supreme Court generally – supervisory jurisdiction over inferior domestic tribunal – application to review order of inferior domestic tribunal – whether uncertainty or ambiguity in order made – no occasion to exercise supervisory jurisdiction
LEGISLATION CITED:	Transport Appeal Boards Act 1980
PARTIES:	Paul Casey (Plaintiff) Transport Appeal Boards (First Defendant) Rail Corporation of New South Wales (Second Defendant)
FILE NUMBER(S):	SC 30024 of 2006
COUNSEL:	J Nolan (Plaintiff) Submitting appearance (First Defendant) P Newall (Second Defendant)
SOLICITORS:	McClellands (Plaintiff) I V Knight, Crown Solicitor (First Defendant) Sparke Helmore (Second Defendant)
LOWER COURT JURISDICTION:	Transport Appeal Boards
LOWER COURT FILE NUMBER(S):	TD/8 of 2005
LOWER COURT JUDICIAL OFFICER :	G Thompson (Vice-Chairman); B Phillips (Board Member); M Thompson (Board Member)
LOWER COURT DATE OF DECISION:	11 March 2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

SIMPSON J

15 May 2007

30024/06 Paul Casey v Transport Appeal Boards & Anor

JUDGMENT

1 HER HONOUR: By summons filed on 14 February 2006 the plaintiff, Paul Casey, seeks orders in the nature of prerogative relief arising out of a decision of 11 March 2005 of the Transport Appeal Boards (“the Board”), which is the first named defendant but which has played no part in the proceedings and has filed a submitting appearance. The plaintiff contends that there is a second decision of the Board, which he also seeks to have reviewed, dated 16 November 2005. The primary application concerns the proper construction of the order made by the Board on 11 March 2005. The second application concerns the Board’s refusal to re-open its decision in respect of that order for the purpose of its clarification.

2 The application arises in the following way.

In 2004 (and, presumably, for some time before that) the plaintiff was employed by the second defendant (the Rail Corporation of New South Wales, shortly known as “RailCorp”) as a Station Manager at the Maitland Railway Station. He was graded as “Level 6”. During 2004 a number of complaints were made about his conduct. An investigation followed, pursuant to RailCorp’s internal disciplinary procedures. Five breaches of the Code of Workplace Standards of the SRA (as RailCorp was, apparently, once known) were alleged. All were found to have been substantiated. A decision was made that the plaintiff be “regressed” (which I take to mean “demoted”) to the level of a Duty Manager 2 for 12 months. Return to his position as Station Manager was to be subject to satisfactory performance and completion of relevant training programs.

3 Pursuant to s 13 of the Transport Appeal Boards Act 1980 (“the Act”) the plaintiff appealed to the Board. The plaintiff admitted the third charge and addressed the Board in mitigation of penalty with respect to that charge. He denied all other charges. After hearing evidence, on 11 March 2005, the Board expressly found two of the allegations to have been proven, one (the 5th) to have previously been “addressed”, and another “not substantiated”. The Board accepted the “guilty plea” to the third charge and “agreed mitigation should be granted”. It summarised its findings as:

“Allegation No 1 – Sustained

Allegation No 2 – Not sustained

Allegation No 3 – Guilty plea with mitigation accepted

Allegation No 4 – Sustained in part

Allegation No 5 – Dealt with in 2003”

4 It then announced its decision on penalty in the following terms:

“On the matter of penalty, the Board decided the appellant should be regressed to Duty Manager 2 for 12 weeks from 8 March 2005, the date of this decision, to resume on 30 May 2005 at his previous level of Station Manager 6.”

(There is no significance in the discrepancy in the stated dates of the decision.)

5 Having made that decision, the Board added:

“In addition to this variation in penalty the Board strongly recommends:

1. SRA/RailCorp put a mentoring program in place for Mr Casey and

2. A mediation process be implemented between Maitland staff and Mr Casey prior to his return to Maitland.”

6 Just how the plaintiff was deployed between 11 March 2005 and 30 May 2005 is not clear. However, at the conclusion of his period of “regression” he was reinstated to the status of Station Manager Level 6. He was not reposted to Maitland Station. He was posted instead to Hamilton Station which was a position classified as a Level 4. The plaintiff was, however, paid as a Level 6 manager. It appears that the position at Hamilton was upgraded from Level 4 to Level 6, specifically to accommodate the plaintiff, and without the implementation of the usual procedures.

7 A dispute arose between the parties as to the correct construction of the Board’s order. The plaintiff contended that, properly construed, the order meant that he was entitled to resume his former position at Maitland Station. RailCorp contended that the order merely meant that he was entitled, as from 30 May 2005, to a position as Station Manager Level 6, but had no entitlement to posting at any particular location.

8 The plaintiff then requested the Board to re-list the matter for clarification of the orders. The Board declined to do so, claiming that it has exhausted its functions under the Act, and was therefore functus officio.

9 The parties were unable to reach any further resolution. Accordingly, the plaintiff filed the summons which commenced these proceedings. He sought the following orders:

“1. An order quashing the order of the Tribunal [sic – the Board] dated 11 March 2005 and substituting the following order: The Plaintiff is to be restored to his position of Station Manager Level 6 at Maitland Station on and from the date of this decision.

2. In the alternative:- an order quashing the order of the TAB [the Board] dated 11 March 2005, making an order directing the TAB [the Board] to hear and determine the matter according to law.

3. In the alternative:- a declaration that the Plaintiff is entitled to be restored to his former position as Station Manager Level 6 at Maitland Station and was so entitled on and from 30 May 2005.

4. A declaration that the Tribunal [sic – the Board] was not, after 11 March 2005, a functus officio (sic) in respect of the matter but was able to entertain an application by the Plaintiff which requested a clarification of the order made by the Tribunal [sic – the Board].”

10 The stated grounds were pleaded as follows:

“1. The Order of the Tribunal (sic) dated 11 March 2005 … was not a proper exercise of the jurisdiction of the Tribunal (sic) under s.28 (sic – s.23) of the Transport Appeals Board Act 1980 and amounted to a constructive failure to exercise the jurisdiction.

2. The Order was uncertain and ambiguous and gave no clear direction as to the location where the Plaintiff was to resume duty as a Level 6 Station Manager.

3. In the alternative, the Second Defendant has failed to give force and effect to the decision of the Transport Appeals Board dated 11 March 2005 by restoring the Plaintiff to the position of Station Manager Level 6 at the Maitland Station on and from 30 May 2005.”

11 Section 13 of the Act provides for appeals to the Board although it is quite unspecific as to the nature of the decisions against which appeals may be lodged. Section 23 of the Act relevantly provides:

“(1) Subject to subsection (1A), a Board may confirm or modify any decision appealed against or make any such order thereon as it thinks fit.

(1A) If a Board modifies the decision of an Authority in respect of disciplinary proceedings against an officer of the Authority, it may only impose as a substituted punishment:


(a) a fine, or

(b) a suspension or further suspension without pay.

(2) Except as provided in section 24, a decision of a Board shall be final and conclusive.”

12 I interpolate that s 24(1A appears, where the decision involves, inter alia, reduction of rank, position, grade or pay, to provide for appeals to the State Rail Authority. No reference was made to s 24 during the course of proceedings, and it may be, for reasons that are not apparent to me, that it is inapplicable.

13 There is no provision for appeal to this Court against an order or decision of the Board.

14 In any event, it was contended on behalf of the plaintiff that, in appropriate circumstances, this Court, in its supervisory jurisdiction, has the necessary power to intervene. So much was not contested on behalf of RailCorp: what was contested was whether the relevant circumstances had been shown to have arisen. RailCorp argued that no occasion existed for that jurisdiction to be invoked.

15 The application of the plaintiff with respect to the decision of 11 March 2005 depends upon his establishing that there is some ambiguity or uncertainty in the order made. I am satisfied that he has failed to do so. The order is as set out above. The recommendation which follows is not part of the order. The recommendation has been seized upon as creating confusion. All it does, however, is to contain within it an assumption that, as a matter of practice, at the conclusion of the plaintiff’s period of “regression” he would be returned to his old employment at his original location. That is an assumption, but not part of the order or decision. The order is in its terms clear.

16 RailCorp is correct in its contention that the Board did not make any order as to the location at which the plaintiff is to be deployed on his resumption of his Level 6 grading. It was, therefore, so far as the decision of the Board goes, fully entitled to take the course it did. If the plaintiff has any grounds for an argument that RailCorp has failed to comply with its obligations, his remedy lies in enforcement proceedings. It is not in what really amounts either to an appeal, or an attempt to re-open, the proceedings before the Board.

17 No occasion arises to consider the bounds or limits of this Court’s supervisory jurisdiction in respect of orders of the kind now in question.

18 It follows that there is no occasion to consider whether the Board was correct in its conclusion that it was functus officio.

19 The summons is dismissed with costs.

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