JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: GODDARD -v- PUBLIC SERVICE APPEAL BOARD [2024] WASC 167
CORAM: SEAWARD J
HEARD: 27 NOVEMBER 2023
DELIVERED : 13 MAY 2024
FILE NO/S: CIV 1897 of 2023
BETWEEN: ROBERT DONALD GODDARD
Applicant
AND
PUBLIC SERVICE APPEAL BOARD
First Respondent
THE GOVERNING COUNCIL OF NORTH METROPOLITAN TAFE
Second Respondent
Catchwords:
Judicial Review - Appeal against a decision under the Public Sector Management Act 1994 (WA) to terminate employment - Allegation that the decision maker did not consider oral or written evidence - Whether the decision maker failed to accord procedural fairness - Whether the decision maker failed to take into account a relevant consideration - Whether the decision maker misapprehended the nature of their jurisdiction - Whether the decision was unreasonable - Allegations of actual or apprehended bias - Turns on own facts
Legislation:
Industrial Relations Act 1979 (WA)
Industrial Relations Commission Regulations 2005 (WA)
Public Sector Management (General) Regulations 1994 (WA)
Public Sector Management Act 1994 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| First Respondent | : | No appearance |
| Second Respondent | : | Mr J Carroll |
Solicitors:
| Applicant | : | In Person |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Bajaj v Magistrate Trevor Darge [2021] WASCA 218
Browne v Browne [2019] WASCA 1
Craig v South Australia (1995) 184 CLR 163
De Alwis v The State of Western Australia [No 4] [2015] WASCA 43
DL v R (2018) 266 CLR 1
Donaldson v Nolan [No 2] [2015] WASC 158
Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337
Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260
Frigger v Kitay [No 8] [2015] WASC 104
Goddard v Governing Council of North Metropolitan TAFE [2023] WAIRC 00260
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Mohareb v Kelso (No 2) [2018] NSWCA 246
Mount Lawley Pty Ltd v Western Australian Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273
MTI v SUL [No 2] [2012] WASCA 87
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
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- Case
- [2024] WASC 167
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the alleged errors by the Board were jurisdictional in nature and, if so, whether they were material to the decision made. The court examined whether the Board's failure to consider certain evidence, or its alleged misapprehension of jurisdiction, could have realistically influenced the outcome of the decision. Furthermore, the court needed to assess whether the Board's conduct indicated actual or apprehended bias, which would render the decision invalid.
The court found that the Board's failure to consider all relevant evidence did not meet the threshold of materiality as the evidence would not have realistically influenced the outcome. The court also found that the Board did not misapprehend its jurisdiction, as it correctly applied the relevant provisions of the Act. Moreover, the court determined that there was no actual or apprehended bias on the part of the Board members. As the errors identified by Mr Goddard were not material to the decision made, the application for judicial review was dismissed.
The court made no orders for costs.
Orders
Orders of the court
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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
In addition, an error will only be jurisdictional if the error was also material to the decision that was made. Some errors (eg bias or unreasonableness in the final result) will, of their nature, always be jurisdictional errors. However, for most cases an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could (not would) have been different if the error had not occurred.[57] What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error, but the threshold is not demanding or onerous.[58][57] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 [6] ‑ [7]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80[32] - [33], [46], [63].[58] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 [14] - [15]. Importantly, an application for judicial review is not an appeal from the decision in question, and it does not involve the supervising court conducting a merits review of the decision in question and substituting its own decision for that of the decision maker. Rather, the court's role is to decide the limits within which the decision maker must exercise their discretion and whether the decision maker has exceeded those limits. If the decision is made within those limits, then it cannot be impugned. That is, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. This is sometimes described as the authority to go wrong.[59][59] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [66]. Mr Goddard represented himself at all times in his application for judicial review. I have, therefore, construed his grounds of judicial review generously. Whist the second ground of review is confined to the question of bias on the part of the Board, in relation to the first ground of review, I have considered whether the matters raised by Mr Goddard fall within any of the other common examples of judicial review referred to above. The first ground alleges that the Board did not consider Mr Goddard's oral and written evidence. Mr Goddard filed a number of documents with the court for the purposes of the judicial review, which are outlined above. The key document is the document headed 'Dear Justice Seaward' which lists the following key facts which Mr Goddard submits were ignored or not considered by the Board:[60][60] Judicial Review transcript, 29 - 30.There is a basic FACT, which for some reason or other is ignored or not considered.And that fact is 'The electric forklift had a tag, which I consider inappropriate use of the tagging system, placed on it because a Port Folio Director and the campus Manager were arguing the point as to who was responsible for the service of the electric forklift, and to put it bluntly, staff were fed up'In addition, it was not a legal tag as there was no information indicating any fault merely an indecipherable squiggle in the signature section and no other details.The three or four so people that used the electric forklift agreed we would not use the unit in an endeavour to get management to do something.Unfortunately, I had an emergency situation and had to use the electric forklift.The reason I had to use the unit is covered in documents.Another fact which has not been considered is, the person from the forklift company put in a false report as to the condition of the brakes to appease a request from the automotive section technician Tom Nagy, to justify the service of the unit.FACT, at no time did any manager or supervisor tell me not to use the electric forklift.(emphasis in original)