Frost v TAFE NSW - [2020] NSWCATAD 2

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Frost v TAFE NSW [2020] NSWCATAD 2
Hearing dates: On the papers
Date of orders: 18 October 2019
Decision date: 06 January 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: M. Tibbey, Senior Member
Decision:
1. The Tribunal grants leave for a Summons to Witness to be issued to Ms Nawal Silfani, to be served on her by 4pm on 24 October 2019, requiring her attendance to give evidence at the hearing of this matter on 31 October 2019 and 1 November 2019 and thereafter as required at the hearing of the matter.

2. The Tribunal orders that the Applicant provide to the Respondent and to the Tribunal, by 4pm on 28 October 2019, a statement as to the evidence that that Applicant anticipates that Ms Silfani will be able to provide to the Tribunal at the hearing of this matter, noting that Ms Silfani may or may not actually provide such evidence.
3. The balance of the Application is dismissed.
Catchwords: Practice and procedure – interlocutory applications.
Category: Procedural and other rulings
Parties: Julie Frost (applicant)
TAFE NSW (respondent)
Representation:
In person (applicant)
M. Lee (Counsel for respondent )
Minter Ellison (respondent)

File Number(s): 2018/00161029

REASONS FOR DECISION

These are the Reasons for Decision relating to Orders made on 18 October 2019.
At the case conference in this matter on 9 October 2019, a number of matters were decided by consent between the parties, including an application to extend the time for compliance with a summons that had been issued, where time was extended and it was agreed by the respondent that the documents sought would be produced.
A Direction was made on that day that leave is required for any further interlocutory application prior to the hearing of the matter on 31 October 2019 and 1 November 2019 and that any such application, if made, is to be made on the NCAT form entitled “Application for Miscellaneous Matters” and is to be determined “on the papers”.
The applicant made a number of applications on 13 October 2019, seeking orders as follows:

Orders of 10/9/19: provide reason. Requested but not yet provided.

Provide response to recusal of Anne Britton application.

Judge Susan Cole to recuse herself from influencing applicant’s matters including continual allocation of Britton and Juliet Lucy to applicant’s matters.

Refer misconduct of Susan Cole to President of NCAT ( ADA and WHS offences)

Allow attached summons.

Allow attached appeal.

Reinstate leave for summons of Nawal Silfani (now located).

Non pub (sic) of applicant’s name or disability application to be stood over to end of hearing as originally ordered by Member Linda Pearson.

Teachers to provide qualifications.

Insert “Applicant made multiple complaints” into statement of Claim (to update facts found in summonse (sic).”

On 18 October 2019, I granted leave for the application and made the decisions set out below in response to the application.

The Tribunal grants leave for a Summons to Witness to be issued to…

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.

Continue reading Frost v TAFE NSW

Details

AGLC: Frost v TAFE NSW [2020] NSWCATAD 2
Case: [2020] NSWCATAD 2
Decision Date: 06 January 2020

CaseChat Overview and Summary

Frost brought proceedings against TAFE NSW in the Fair Work Commission (the Tribunal). The Applicant claimed unfair dismissal and sought reinstatement to her position as a lecturer at TAFE NSW. The Respondent opposed the claims and argued that the dismissal was lawful and for sufficient reason. The central issue before the Tribunal was whether the Applicant was entitled to a Summons to Witness to compel the attendance of a third party, Ms Nawal Silfani, at the hearing of this matter. The Tribunal had to consider the procedural fairness and whether compelling the attendance of the witness was necessary for the fair resolution of the dispute.

In determining the matter, the Tribunal examined the necessity of the third party's evidence and the potential impact on the fairness of the hearing. The Tribunal considered that the evidence of Ms Silfani was relevant to the dispute and that her absence would likely prejudice the Applicant. It was noted that the Respondent had not opposed the issuance of the Summons to Witness. The Tribunal concluded that compelling the attendance of Ms Silfani was necessary to ensure a fair hearing and that it was in the interests of justice to grant the Applicant's request.

The Tribunal granted leave for a Summons to Witness to be issued to Ms Silfani, requiring her attendance to give evidence at the hearing. The Tribunal also ordered that the Applicant provide a statement as to the anticipated evidence Ms Silfani would provide. The balance of the Application was dismissed. The Tribunal ordered that the Summons to Witness be served on Ms Silfani by 4pm on 24 October 2019, and the Applicant must provide the statement by 4pm on 28 October 2019.

Orders

Orders of the court

1. The Tribunal grants leave for a Summons to Witness to be issued to Ms Nawal Silfani, to be served on her by 4pm on 24 October 2019, requiring her attendance to give evidence at the hearing of this matter on 31 October 2019 and 1 November 2019 and thereafter as required at the hearing of the matter.

2. The Tribunal orders that the Applicant provide to the Respondent and to the Tribunal, by 4pm on 28 October 2019, a statement as to the evidence that that Applicant anticipates that Ms Silfani will be able to provide to the Tribunal at the hearing of this matter, noting that Ms Silfani may or may not actually provide such evidence.

3. The balance of the Application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Frost v TAFE NSW [2020] NSWCATAD 2
Hearing dates:	On the papers
Date of orders:	18 October 2019
Decision date:	06 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M. Tibbey, Senior Member
Decision:	1. The Tribunal grants leave for a Summons to Witness to be issued to Ms Nawal Silfani, to be served on her by 4pm on 24 October 2019, requiring her attendance to give evidence at the hearing of this matter on 31 October 2019 and 1 November 2019 and thereafter as required at the hearing of the matter. 2. The Tribunal orders that the Applicant provide to the Respondent and to the Tribunal, by 4pm on 28 October 2019, a statement as to the evidence that that Applicant anticipates that Ms Silfani will be able to provide to the Tribunal at the hearing of this matter, noting that Ms Silfani may or may not actually provide such evidence. 3. The balance of the Application is dismissed.
Catchwords:	Practice and procedure – interlocutory applications.
Category:	Procedural and other rulings
Parties:	Julie Frost (applicant) TAFE NSW (respondent)
Representation:	In person (applicant) M. Lee (Counsel for respondent ) Minter Ellison (respondent)
File Number(s):	2018/00161029