Commissioner of Corrective Services v Walker - [2007] NSWCA 213

Reported Decision: 166 IR 126

New South Wales

Court of Appeal

CITATION: COMMISSIONER OF CORRECTIVE SERVICES v WALKER and ORS [2007] NSWCA 213

HEARING DATE(S): 1 May 2007

JUDGMENT DATE:
16 August 2007

JUDGMENT OF: Mason P at 1; Santow JA at 2; McColl JA at 48

DECISION: Appeal dismissed with costs.

CATCHWORDS: ADMINISTRATIVE LAW – Statutory Interpretation – “GREAT” appeals under s20 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) – entitlement to appeal under s20 and by reference to s21(1)(e) – competency of appeal when made outside 21 days mandated by s55 of the GREAT Act. - WORDS AND PHRASES – meaning of “the decision of the Tribunal in respect of an appeal” within s48(4) – was there a decision when the result of the Tribunal’s determination but without its reasons was informally communicated in advance of the decision with reasons being formally provided.

LEGISLATION CITED: Government and Related Employees Appeal Tribunal Act 1980 (NSW) s20, s21, s48, s54, s55,
Supreme Court Act 1970 s69

CASES CITED: Ex parte Currie; Re Dempsey and Others (1969) 91 W.N. 34
Ex parte Currie; Re Dempsey [1970] 1 NSWR 617
Metropolitan Water, Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720

PARTIES: COMMISSIONER OF CORRECTIVE SERVICES (Appellant)
David Anthony WALKER (First Respondent)
Shannon KAY (Second Respondent)
Benjamin CLAPP (Third Respondent)

FILE NUMBER(S): CA CA 40698/06; CA 40052/07

COUNSEL: T ANDERSON (Appellant)
I TAYLOR (First Respondent)
Submitting appearances (Second and Third Respondents)

SOLICITORS: NSW Department of Corrective Services (Appellant)
W G McNally Jones Staff (First Respondent)

LOWER COURT JURISDICTION: Government & Related Employees Appeal Tribunal

LOWER COURT FILE NUMBER(S): GREAT PSP/303-304/06

LOWER COURT DATE OF DECISION: 31 October 2006

- 1 -

CA 40698/06
CA 40052/07
GREAT PSP/303-304/06

MASON P
SANTOW JA
McCOLL JA
16 AUGUST 2007

COMMISSIONER OF CORRECTIVE SERVICES v David Anthony WALKER and two Others

Judgment

1 MASON P: I agree with Santow JA.

2 SANTOW JA:

INTRODUCTION

3 The challenged appeal to the Tribunal was brought invoking s20 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) (“the GREAT Act”) as its basis. The appellant unsuccessfully argued before the Tribunal that Mr Walker was not entitled to appeal under s20 of the GREAT Act in respect of the appellant’s decision relating to a vacant office, by reason of the application of s21(1)(e) of that Act, quoted below:

21 Excluded circumstances

(1) An employee is not entitled to appeal under section 20 in respect of the decision of an employer relating to a vacant office:

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: [2007] NSWCA 213
Decision Date: 16 August 2007

CaseChat Overview and Summary

The Commissioner of Corrective Services appealed to the Court of Appeal of New South Wales against a decision of the Government and Related Employees Appeal Tribunal (GREAT). The dispute concerned the competency of an appeal lodged by Mr. Walker outside the 21-day time limit prescribed by s 55 of the *Government and Related Employees Appeal Tribunal Act 1980* (NSW). The Commissioner argued that the appeal was out of time, while Mr. Walker contended that the time limit had not yet commenced.

The primary legal issue before the Court of Appeal was whether the time for lodging an appeal under s 55 of the GREAT Act had commenced. This turned on the interpretation of s 48(4) of the Act, which defines when a "decision of the Tribunal in respect of an appeal" is made. Specifically, the Court had to determine if a decision was made when the outcome of the Tribunal's determination was informally communicated to the parties before the formal provision of written reasons.

The Court reasoned that the statutory language of s 48(4) indicated that a "decision" was only formally made when it was reduced to writing and provided to the parties. The informal communication of the result, without the accompanying reasons, did not constitute a "decision" for the purposes of commencing the time limit for a further appeal. Therefore, Mr. Walker's appeal, lodged after the informal notification but within 21 days of the formal provision of reasons, was competent.

The appeal was dismissed, and the Commissioner was ordered to pay Mr. Walker's costs of the appeal.

Orders

Orders of the court

Appeal should be dismissed and the appellant should pay the respondent’s costs. Orders proposed as follows:

1) Appeal dismissed including appellant’s summons dated 24 January 2007.

(2) Appellant to pay respondent’s costs of the appeal including in relation to the appellant’s summons.

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.

CITATION:	COMMISSIONER OF CORRECTIVE SERVICES v WALKER and ORS [2007] NSWCA 213
HEARING DATE(S):	1 May 2007
JUDGMENT DATE:	16 August 2007
JUDGMENT OF:	Mason P at 1; Santow JA at 2; McColl JA at 48
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	ADMINISTRATIVE LAW – Statutory Interpretation – “GREAT” appeals under s20 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) – entitlement to appeal under s20 and by reference to s21(1)(e) – competency of appeal when made outside 21 days mandated by s55 of the GREAT Act. - WORDS AND PHRASES – meaning of “the decision of the Tribunal in respect of an appeal” within s48(4) – was there a decision when the result of the Tribunal’s determination but without its reasons was informally communicated in advance of the decision with reasons being formally provided.
LEGISLATION CITED:	Government and Related Employees Appeal Tribunal Act 1980 (NSW) s20, s21, s48, s54, s55, Supreme Court Act 1970 s69
CASES CITED:	Ex parte Currie; Re Dempsey and Others (1969) 91 W.N. 34 Ex parte Currie; Re Dempsey [1970] 1 NSWR 617 Metropolitan Water, Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720
PARTIES:	COMMISSIONER OF CORRECTIVE SERVICES (Appellant) David Anthony WALKER (First Respondent) Shannon KAY (Second Respondent) Benjamin CLAPP (Third Respondent)
FILE NUMBER(S):	CA CA 40698/06; CA 40052/07
COUNSEL:	T ANDERSON (Appellant) I TAYLOR (First Respondent) Submitting appearances (Second and Third Respondents)
SOLICITORS:	NSW Department of Corrective Services (Appellant) W G McNally Jones Staff (First Respondent)
LOWER COURT JURISDICTION:	Government & Related Employees Appeal Tribunal
LOWER COURT FILE NUMBER(S):	GREAT PSP/303-304/06
LOWER COURT DATE OF DECISION:	31 October 2006