Reehman v Certis Security Australia Pty Ltd & Anor - [2021] HCATrans 200

[2021] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C16 of 2021

B e t w e e n -
SAYD TARIK REEHMAN
Plaintiff
and
CERTIS SECURITY AUSTRALIA PTY LTD
First Defendant
STATE OF NEW SOUTH WALES
Second Defendant

GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY

ON TUESDAY, 16 NOVEMBER 2021, AT 2.41 PM

HER HONOUR: In accordance with the remote hearing protocol, I shall announce the appearance of the parties.

MR S.T. REEHMAN appeared in person.

MR B.D. HODGKINSON, SC appears for the first defendant. (instructed by FCB Workplace Law)

MR J.K. KIRK, SC appears with MR B.K. LIM for the second defendant. (instructed by NSW Crown Solicitor’s Office)

HER HONOUR: As the State seeks a remitter to the Supreme Court I will hear first from Mr Kirk, then Mr Hodgkinson and then Mr Reehman. Mr Reehman, please listen carefully to what Mr Kirk and Mr Hodgkinson say so that when I ask you to speak you can let me know if you disagree with anything I have said. Is that all right?

MR REEHMAN: That is all right, your Honour, thank you.

HER HONOUR: Thank you. After I have heard from everyone I will probably adjourn briefly and then I will come back on to the Bench and make orders and deliver a judgment. If I change my mind about what I propose to do, that is if I decide not to adjourn briefly, then I will let everyone know my plan, my alternate plan.

Mr Kirk, is there anything that you want to say in addition to your written submissions?

MR KIRK: I will be very brief, your Honour – and for Mr Reehman this is Mr Kirk speaking. We do rely on our written submissions of 5 November 2021. As your Honour would have seen we raised three main points as to why we respectfully suggest the matter is appropriate for remitter.

HER HONOUR: Mr Kirk, I probably should ask you to identify the evidence that you rely on.

MR KIRK: To identify – sorry, your Honour?

HER HONOUR: If you rely on any evidence, you should identify that.

MR KIRK: Of course, your Honour, sorry. We do rely on the affidavit of my instructing solicitor, Timothy Morgan Burston, affirmed on 5 November 2021 and filed on that date which was the same date we filed the submissions. Just to summarise what is contained in that affidavit, it simply gives an overview, as your Honour would have seen, of the other various proceedings which have been brought challenging various of the public health orders made under the Public Health Act 2010 (NSW). I should actually give your Honour a quick update of that affidavit. Your Honour would have seen that it is referred to ‑ ‑ ‑

HER HONOUR: All right. I am sorry, Mr Kirk, let me first ask Mr Reehman – do you have any objection…

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.

Keep reading for free

Create a free CaseChat account to read Reehman v Certis Security Australia Pty Ltd & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] HCATrans 200
Decision Date

CaseChat Overview and Summary

Reehman (the applicant) brought proceedings against Certis Security Australia Pty Ltd and another respondent (the respondents). The applicant sought to set aside an arbitration award made in favour of the respondents. The dispute concerned the applicant's employment and the termination of that employment.

The primary legal issue before the Court was whether the arbitration award should be set aside pursuant to section 13(5)(b)(i) of the *Commercial Arbitration Act 2010* (NSW) (the Act). This required the Court to determine if the applicant had been unable to present their case in the arbitration proceedings.

Gleeson J found that the applicant had not been unable to present their case. The Court reasoned that the applicant had been given ample opportunity to present evidence and make submissions during the arbitration. The applicant's failure to do so was a matter of their own choice and did not amount to a denial of procedural fairness by the arbitrator. The Court applied the principles of natural justice and procedural fairness, noting that an applicant must demonstrate a substantial injustice or prejudice to succeed under section 13(5)(b)(i) of the Act.

The application to set aside the arbitration award was dismissed.

Orders