Director-General, Department of Ageing, Disability and Home Care v Kuskis

[2008] NSWCA 47

New South Wales

Court of Appeal

CITATION:	Director-General, Department of Ageing, Disability and Home Care v Kuskis [2008] NSWCA 47
HEARING DATE(S):	17 March 2008
JUDGMENT DATE:	17 March 2008
JUDGMENT OF:	Hodgson JA
EX TEMPORE JUDGMENT DATE:	17 March 2008
DECISION:	1. The decision of the Government and Related Employees’ Appeal Tribunal made on 19 February 2008, which is the subject of this appeal, be stayed until the final determination of this appeal and the associated summons. 2. Costs of this application to be costs in the appeal.
CATCHWORDS:	PROCEDURE – Stay pending appeal – Whether appeal from decision of GREAT can challenge earlier decision that it had jurisdiction – Discretionary considerations.
LEGISLATION CITED:	Government and Related Employees’ Tribunal Act, s 54
CATEGORY:	Procedural and other rulings
CASES CITED:	Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478 Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720
PARTIES:	DIRECTOR-GENERAL, DEPARTMENT OF AGEING, DISABILITY AND HOME CARE (Appellant) Martin Raymond KUSKIS (First Respondent) Rodney LAMBERT (Second Respondent)
FILE NUMBER(S):	CA 40037/08
COUNSEL:	P NEWALL/ C KAHAGALLE (Appellant) N KEATS (First Respondent) Submitting Appearance (Second Respondent)
SOLICITORS:	Matthew Keeley, Corporate Counsel (Appellant) W G MCNally Jones Staff (First Respondent)
LOWER COURT JURISDICTION:	Government and Related Employees' Appeal Tribunal
LOWER COURT FILE NUMBER(S):	PSP/373 of 2007
LOWER COURT JUDICIAL OFFICER:	P A Lynch, N Greenaway, B Steenson
LOWER COURT DATE OF DECISION:	19 February 2008

CA 40037/08

HODGSON JA

Monday 17 MARCH 2008

DIRECTOR-GENERAL, DEPARTMENT OF AGEING, DISABILITY AND HOME CARE v Martin Raymond KUSKIS and Anor

Judgment

1 HIS HONOUR: I am dealing with a notice of motion brought by the appellant seeking a stay of a decision of the Government and Related Employees’ Appeal Tribunal made on 19 February 2008.

2 The appeal in which this notice of motion is brought was brought within twenty-one days of the decision on 19 February 2008, as required by the Government and Related Employees’ Tribunal Act, section 54. However, what the appellant apparently regards as the principal grounds of appeal concern the jurisdiction of the Tribunal. The Tribunal had made a decision on its jurisdiction in December, and no appeal was brought from that decision within twenty-one days. On that basis, it has been submitted for the first respondent that those aspects of the appeal are incompetent, and that the notice of motion should be dealt with on that basis.

3 Against that, it has been put for the appellant that the appellant has also brought a summons seeking prerogative relief based on the same considerations concerning jurisdiction. In relation to that, it has been submitted for the first respondent that that is an application that has little chance of success because, as a matter of discretion, the Court would not grant prerogative relief when there is an appeal available on the same grounds, with a strict time limit.

4 Mc McNally for the second respondent has referred me to the decision of Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720 for the proposition that the Tribunal had made a decision within the meaning of s 54 of the Act when it decided the question of jurisdiction, so that the capacity to appeal from that decision came to an end twenty-one days later.

5 It is not necessary or appropriate for me to make a final decision on this question here, but my very tentative view would be that where the Tribunal makes interlocutory decisions on the way towards making a final decision that actually affects the rights of the parties, those interlocutory decisions can be challenged in an appeal from the final decision, in accordance with the approach set out in Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478.

6 It does seem to me that this is in accordance with principle. If it were the case that a party would lose the ability to challenge every interlocutory decision of law made along the way before a final decision is made, whenever twenty-one days elapses from each of those interlocutory decisions, it would be productive of inconvenience and delay. It seems to me that the final decision in this case in February in effect repeated the decision as to jurisdiction that had earlier been made, and so it seems to me tentatively that the appeal in respect of those matters is not incompetent. At least it seems to me there are reasonable grounds for arguing that and, having regard to that view, it seems to me that there are reasonable grounds for the appeal.

7 Turning to the question of whether a stay should be ordered, there are considerations pointing both ways. On the one hand, for the appellant there would be considerable inconvenience and disruption if the employee at present in the relevant position had to be removed, and if the first respondent had to be introduced into this position and prepared for carrying out its duties; and if this situation again had to be reversed if the appeal was successful. On the other hand, from the point of view of the first respondent, there is a policy that he may be required to accept other positions if they are offered to him pending the hearing of the appeal. That situation could cause inconvenience and difficulty to the first respondent.

8 On the whole, however, I think the balance does favour the appellant, and I would attempt to alleviate the difficulty for the first respondent by reserving leave for him to apply to have the stay lifted if he should be put in difficulty by any offer of alternative employment. I would express the view that it would be unfortunate if he was put in a difficult position by being offered a situation which he would prefer not to accept, rather than being permitted to await the outcome of this appeal in the hope that he would be left with the employment that the Tribunal has found him entitled to.

9 So for those reasons, which state the essence of the reasons for my decision which I have reached after carefully taking into account all the other detailed submissions that were made, I do propose to grant the stay that is sought.

10 I order:

1. The decision of the Government and Related Employees’ Appeal Tribunal made on 19 February 2008, which is the subject of this appeal, be stayed until the final determination of this appeal and the associated summons.

2. Costs of this application to be costs in the appeal.

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