Sydney Ferries v Morton - [2010] NSWCA 156

NEW SOUTH WALES COURT OF APPEAL

CITATION:
SYDNEY FERRIES v MORTON [2010] NSWCA 156
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2009/298457

HEARING DATE(S):
17, 18 March 2010

JUDGMENT DATE:
6 July 2010

PARTIES:
Sydney Ferries (Appellant)
Stephen James Morton (First Respondent)
Transport Appeal Board (Second Respondent)

JUDGMENT OF:
Allsop P Basten JA Campbell JA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 30098/08

LOWER COURT JUDICIAL OFFICER:
Rothman J

LOWER COURT DATE OF DECISION:
4 August 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
[Morton v Sydney Ferries Corporation] [2009] NSWSC 341

COUNSEL:
A R Moses SC/Y Shariff (Appellant)
D Cowan SC/D D Knoll (First Respondent)
Submitting appearance (Second Respondent)

SOLICITORS:
Sparke Helmore (Appellant)
Diamond Conway (First Respondent)
Crown Solicitor’s Office (Second Respondent)

CATCHWORDS:
ADMINISTRATIVE LAW – procedural fairness – duty to give notice – Transport Administration (Staff) Regulation 2000 (NSW), cl 32.
ADMINISTRATIVE LAW – procedural fairness – obligation to give reasons - content of the obligation dependent upon nature of the power and circumstances in which the power is exercised – no general law assumption that there is an obligation for an administrative decision-maker to give reasons.
ADMINISTRATIVE LAW – estoppel – no function of Court exercising powers of judicial review to make findings of fact as to the merits of the claim – a statement of facts in a judgment in judicial review proceedings does no more than identify the background - [Supreme Court Act 1970] (NSW), s 69
ADMINISTRATIVE LAW – Wednesbury unreasonableness – principle applicable to discretionary decision-making – findings of fact open to a Tribunal not to be disturbed for unreasonableness

LEGISLATION CITED:
[Acts Interpretation Act 1901] (Cth), s 25D
[Public Sector Employment and Management Act 2002] (NSW), Pt 2.7
[Supreme Court Act 1970] (NSW), ss 69, 75A
Transport Administration (Staff) Regulation 2000 (NSW), cll 29, 32, 33, 34; Pt 3, Div 3
[Transport Administration Act 1988] (NSW), ss 60, 62
[Transport Appeal Boards Act 1980] (NSW), ss 5, 23; Sch 1
Uniform Civil Procedure Rules 2005 (NSW), r 6.12A
[Workplace Injury Management and Workers Compensation Act 1998] (NSW), ss 327, 328

CATEGORY:
Principal judgment

CASES CITED:
[Campbelltown City Council v Vegan] [2006] NSWCA 284; 67 NSWLR 372
[Calvin v Carr] [1980] AC 574
[Jarratt v Commissioner of Police (NSW)] [2005] HCA 50; 224 CLR 44
[McVicar v Commissioner for Railways (NSW)] [1951] HCA 50; 83 CLR 521
[Minister for Immigration and Multicultural Affairs v Eshetu] [1999] HCA 21; 197 CLR 611
[Minister for Immigration and Multicultural Affairs v W157/00A] [2002] FCAFC 281; 125 FCR 433
[Morton v Sydney Ferries Corporation] [2007] NSWSC 1454; 168 IR 403
[Public Service Board v Osmond] [1986] HCA 7; 159 CLR 656
[R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd] [1924] 1 KB 171
[Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002]

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.

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Details

Case: [2010] NSWCA 156
Decision Date: 6 July 2010

CaseChat Overview and Summary

Sydney Ferries Pty Limited (Sydney Ferries) appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court of New South Wales concerning the dismissal of Mr Morton. The dispute centred on whether Sydney Ferries had afforded Mr Morton procedural fairness when it terminated his employment.

The Court of Appeal was required to determine whether clause 32 of the *Transport Administration (Staff) Regulation 2000* (NSW) imposed a duty on Sydney Ferries to give notice of the grounds for Mr Morton's dismissal. Further, the Court considered whether there was an obligation on the decision-maker to provide reasons for the dismissal, and if so, the content of that obligation. The Court also addressed the applicability of estoppel in the context of judicial review proceedings and the principles of *Wednesbury* unreasonableness in relation to discretionary decision-making.

The Court of Appeal held that clause 32 of the *Transport Administration (Staff) Regulation 2000* (NSW) did not impose a duty to give notice of the grounds for dismissal. It was also determined that there is no general legal assumption that an administrative decision-maker is obliged to give reasons for their decision; the content of such an obligation is dependent on the nature of the power exercised and the circumstances. The Court clarified that findings of fact made in judicial review proceedings do not have the effect of creating an estoppel, and that the Court exercising powers of judicial review is not empowered to make findings of fact on the merits of a claim. The principles of *Wednesbury* unreasonableness were found to be applicable to discretionary decision-making, and findings of fact open to a tribunal were not to be disturbed on the grounds of unreasonableness.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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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