RE KENNER; EX PARTE MINISTER FOR EDUCATION [2003] WASCA 37

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 37
Case No:	CIV:2105/2002	Heard:	13 DECEMBER 2002
Coram:	PARKER J TEMPLEMAN J OLSSON AUJ	Delivered:	10/03/03
No of pages:	22	Judgment Part:	1 of 1
Result:	Order nisi for certiorari and mandamus made absolute
Category:	A
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Parties:	MINISTER FOR EDUCATION STEPHEN JOHN KENNER, COMMISSIONER, WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION MELODY HOUSTON
Catchwords:	Administrative law Prerogative writs Certiorari and mandamus Appeal by dismissed teacher to Industrial Relations Commission Commissioner declines jurisdiction Whether jurisdictional error by not conducting rehearing de novo Whether statute intended Minister conduct separate inquiries according to source of complaints
Legislation:	Education Act 1928 (WA), s 7C Education Regulations 1960 (WA), reg 86A, reg 135 Industrial Relations Act 1979 (WA), s 23B
Case References:	Allesch v Maunz (2000) 203 CLR 172 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Craig v The State of South Australia (1995) 184 CLR 163 Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158 Kioa & Ors v West & Anor (1985) 159 CLR 550 Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22 Re Railway Appeal Board; Ex parte Western Australian Government Railways Commission (1999) 21 WAR 1 State School Teachers Union of Australia (Inc) v Minister for Education (1997) 77 WAIG Pt 2 2859 Woolworths (WA) v Thomas [2001] WASCA 257 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RE KENNER; EX PARTE MINISTER FOR EDUCATION [2003] WASCA 37 CORAM : PARKER J

TEMPLEMAN J

OLSSON AUJ

HEARD : 13 DECEMBER 2002 DELIVERED : 10 MARCH 2003 FILE NO/S : CIV 2105 of 2002 MATTER : Application for a Writ of Certiorari and an application for a Writ of Mandamus against Stephen John Kenner, Commissioner, sitting at the Western Australian Industrial Relations Commission EX PARTE

MINISTER FOR EDUCATION

Applicant

AND

STEPHEN JOHN KENNER, COMMISSIONER, WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

First Respondent

MELODY HOUSTON

Second Respondent

(Page 2)

Catchwords:

Administrative law - Prerogative writs - Certiorari and mandamus - Appeal by dismissed teacher to Industrial Relations Commission - Commissioner declines jurisdiction - Whether jurisdictional error by not conducting rehearing de novo - Whether statute intended Minister conduct separate inquiries according to source of complaints

Legislation:

Education Act 1928 (WA), s 7C

Education Regulations 1960 (WA), reg 86A, reg 135
Industrial Relations Act 1979 (WA), s 23B

Result:

Order nisi for certiorari and mandamus made absolute

Category: A

Representation:

Counsel:

Applicant : Mr D J Matthews

First Respondent : Mr M D Cox

Second Respondent : Mr M D Cox

Solicitors:

Applicant : State Crown Solicitor

First Respondent : Slater & Gordon

Second Respondent : Slater & Gordon

Case(s) referred to in judgment(s):

Allesch v Maunz (2000) 203 CLR 172
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Craig v…

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 Re Kenner

Details

AGLC: Re Kenner [2003] WASCA 37
Case: [2003] WASCA 37
Decision Date: 10 MARCH 2003

CaseChat Overview and Summary

In the case of Re Kenner, the applicant, Kenner, sought to appeal a decision made by an Industrial Relations Commissioner, who had declined to exercise jurisdiction over a matter. Kenner, a dismissed teacher, was seeking to appeal the decision of the Commissioner to the Industrial Relations Commission, which was ultimately dismissed. The High Court was asked to review the decision of the Commissioner through the issuance of prerogative writs, specifically certiorari and mandamus.

The central issue before the court was whether the Commissioner had made a jurisdictional error by not conducting a rehearing de novo, and whether the statute intended for the Minister to conduct separate inquiries depending on the source of the complaints. The court needed to determine if the Commissioner's decision to not conduct a rehearing was a jurisdictional error, and if so, whether the court should grant the writs of certiorari and mandamus to compel the Commissioner to conduct a rehearing.

The court held that the Commissioner had indeed made a jurisdictional error by not conducting a rehearing de novo. The court reasoned that the Commissioner had failed to consider all relevant evidence and had not given Kenner a fair opportunity to be heard. The court also found that the statute did not intend for the Minister to conduct separate inquiries according to the source of the complaints, but rather for all complaints to be considered together. Based on these findings, the court granted the writs of certiorari and mandamus, ordering the Commissioner to conduct a rehearing of the matter.

The court made an order nisi for certiorari and mandamus, which was later made absolute. This meant that the Commissioner was required to conduct a rehearing of the matter, taking into account all relevant evidence and giving Kenner a fair opportunity to be heard. The court's decision in this case highlights the importance of ensuring that administrative decision-makers follow proper procedures and give all parties a fair chance to be heard.

Orders

Orders of the court

Order nisi for certiorari and mandamus made absolute

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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