Macatangay v NSW Department of Education and Training

[2006] NSWSC 213

CITATION:	Macatangay v NSW Department of Education & Training [2006] NSWSC 213
HEARING DATE(S):	14 February 2006
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
EX TEMPORE JUDGMENT DATE:	02/14/2006
DECISION:	Motion dismissed
CATCHWORDS:	Civil claim for damages - motion for summary judgment - dismissal by the NSW Department of Education - proceedings in the Industrial Commission - duty of care - defence filed in proceedings
LEGISLATION CITED:	Workplace Injury Management Act 1978 Workers' Compensation Act 1987
PARTIES:	Miguela Alvarez Macatangay (Pltf) NSW Dept of Education & Training (Def)
FILE NUMBER(S):	SC 20144/05
COUNSEL:	Plaintiff in person M K Minehan (Def)
SOLICITORS:	Plaintiff in person HIcksons (Def)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

TUESDAY 14 FEBRUARY 2006

20144/05 MACATANGAY v NEW SOUTH WALES DEPARTMENT OF EDUCATION & TRAINING

JUDGMENT

1 HIS HONOUR: The plaintiff brought proceedings against the State of New South Wales claiming damages. She was employed as a teacher within the New South Wales teaching service from some time in 1999 until her service was finally terminated at the end of 2002. The amended statement of claim which has been filed is comprehensive and relates a history of the plaintiff's employment and difficulties she experienced in seeking to carry out her duties at, in particular, Merrylands High School.

2 As I understand the plaintiff's claim, it is submitted that by reason of the way her employment and more particularly the difficulties she experienced were managed, the Department of Education and Training failed to discharge the duty of care which it owed to her as her employer.

3 The evidence tendered before me in support of the application demonstrates that the plaintiff did suffer significant difficulties which led to her seeking and receiving medical attention. She had periods when she was unable to carry out her duties and was granted sick leave by the Department.

4 It is plain that the plaintiff has significant qualifications particularly from the Philippines in mathematics. She has also undergone training in New South Wales, designed to assist her to carry out professional duties as a teacher within the New South Wales education system. It does not seem that the plaintiff has shown that there was a concern expressed by the department in relation to the plaintiff's academic qualifications but the evidence disclosed significant concerns in relation to her capacity to effectively teach in the schools to which she was assigned.

5 The plaintiff brings a motion for summary judgment, relying on Pt 13 r 1 of the Uniform Civil Procedure rules. Subrule 1 is amplified by subrule 2 and, as I understand it, the plaintiff seeks an order which would enable the Court to proceed to the assessment of damages.

6 In support of her application, the plaintiff submitted that there is evidence before me on which her claim is based. It is also submitted that by reason of her affidavit there is evidence before me that the defendant has no defence.

7 Notwithstanding that that affidavit has been filed, it is by no means clear to me that the defendant lacks a defence. Indeed, from the evidence presently before me, and my understanding of the case, it is not clear to me that the plaintiff could, for reasons apart from evidentiary matters, successfully maintain the proceedings in any event. As I understand the matter at present, the plaintiff has brought a claim for unfair dismissal in the New South Wales Industrial Commission. Those proceedings were compromised and as part of that compromise an agreement was entered into and the proceedings were vacated. An application was later made for leave to appeal, notwithstanding that the primary proceedings had been compromised. That application was refused, it being found that the compromise had been made by the plaintiff's lawyer acting within his instructions.

8 The defendant has filed a defence in these proceedings. That defence raised the question of whether or not by reason of the proceedings which were compromised in the Industrial Relations Commission, the plaintiff is estopped from bringing these proceedings. Beyond that matter, the defendant says that the proceedings cannot be brought by reason of the operation of both the Workplace Injury Management Act 1978 and the Workers' Compensation Act 1987. It is further submitted that even if the plaintiff is able to commence the proceedings, the defendant effectively carried out its obligations and accordingly, it is submitted, that the plaintiff's proceedings must fail.

9 Having regard to all of those matters, I am satisfied that the plaintiff's motion for summary judgment should be refused. Accordingly that motion is dismissed.

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