Valantine v Technical and Further Education Commission - [2007] NSWCA 208

Reported Decision: 166 IR 459

New South Wales

Court of Appeal

CITATION: Valantine v Technical and Further Education Commission & Anor [2007] NSWCA 208
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 06/06/07

JUDGMENT DATE:
20 August 2007

JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; Gzell J at 3

DECISION: Orders not justified by the Government and Related Employees Tribunal Act 1980 and appellant could not be required to produce documents in contravention of legal professional privilege, the privilege against self-incrimination or the privilege against exposure to penalties. Appeal allowed, orders set aside, Commission to pay costs of appeal.

CATCHWORDS: ADMINISTRATIVE LAW - Appeals from Administrative Authorities - Government and Related Employees Tribunal - Head Teacher employed by Technical and Further Education Commission found by Officer appointed by the Commission to have been guilty of breaches of discipline and demoted to teacher - Appeal to Tribunal - Hearing in formal sitting evidence being given on oath subject to cross-examination and with the Commission's case presented first - Power in the Tribunal to make orders for discovery of documents in specified circumstances under the Government and Related Employees Appeal Tribunal Act 1980, s 44(1) - Tribunal made order that the appellant lodge copies of all documents relevant to the appeal, copies of a written case setting out the arguments on which he relied including a case outline, issues in dispute, witness statements and statement of the date he supplied copies of the documents to the Commission - Appeal against those orders - Whether orders justified under the Government and Related Employees Appeal Tribunal Act 1980, s 44(1), s 39 or s 43(1) - Whether legal professional privilege abrogated - Whether it prevented the Tribunal requiring the appellant to lodge witness statements and any other documents within the ambit of the privilege - Whether the privilege against self-incrimination abrogated by the Government and Related Employees Appeal Tribunal Act 1980 and whether it prevented the Tribunal from requiring the appellant to lodge any documents that might tend to incriminate him - Whether the privilege against exposure to penalties is capable of application to quasi-judicial proceedings and whether it is capable of application to formal sittings of the Tribunal - Whether the privilege is excluded either expressly or necessary implication - Whether reduction of rank and loss of salary are exposures to penalties - Whether the appellant was exposed to penalties before the Tribunal notwithstanding that he had already being demoted

LEGISLATION CITED: Public Sector Employment and Management Act 2002
Government and Related Employees Appeal Tribunal Act 1980
Uniform Civil Procedure Rules 2005
Evidence Act 1995
Judicature Act
Technical and Further Education Commission Act 1990
Trade Practices Act 1974 (Cth)

CASES CITED: Baker v Campbell (1983) 153 CLR 52
Esso Australia Resources Ltd v Federal Commissioner Taxation (1999) 201 CLR 49
Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405
Attorney-General (NT) 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.

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Details

Case: [2007] NSWCA 208
Decision Date: 20 August 2007

CaseChat Overview and Summary

The appeal concerned a Head Teacher employed by the Technical and Further Education Commission who had been demoted to Teacher following a finding of breaches of discipline. The employee appealed this decision to the Government and Related Employees Appeal Tribunal. During the formal hearing before the Tribunal, the Commission's case was presented first, with evidence given on oath and subject to cross-examination. The Tribunal subsequently made orders requiring the appellant to lodge copies of all documents relevant to the appeal, a written case outlining his arguments, a case outline, issues in dispute, witness statements, and confirmation of when he supplied copies of documents to the Commission. The appellant appealed these orders.

The central legal issues before the court were whether the Tribunal's orders for the discovery of documents, including witness statements, were justified under sections 44(1), 39, or 43(1) of the *Government and Related Employees Appeal Tribunal Act 1980*. Specifically, the court had to determine if legal professional privilege and the privilege against self-incrimination were abrogated by the Act, thereby preventing the Tribunal from requiring the appellant to lodge documents that might be covered by these privileges. The court also considered whether the privilege against exposure to penalties applied to the quasi-judicial proceedings of the Tribunal, particularly in formal sittings, and whether the reduction in rank and loss of salary constituted an exposure to penalties, even though the demotion had already occurred.

The court allowed the appeal, setting aside the decision of the Tribunal. The reasoning focused on the scope of the Tribunal's powers under the Act and the application of fundamental common law privileges. The court found that the Tribunal's orders requiring the appellant to lodge witness statements and other documents were not justified under the relevant sections of the Act, particularly in light of the potential infringement of legal professional privilege and the privilege against self-incrimination. The court determined that these privileges were not abrogated by the Act, either expressly or by necessary implication, and that the Tribunal could not compel the production of documents that would breach them. Furthermore, the court held that the reduction in rank and loss of salary did constitute an exposure to penalties, and the privilege against such exposure remained applicable to the proceedings before the Tribunal.

Orders

Orders of the court

(1) Appeal allowed.

(2) Decision of the Tribunal set aside.

(3) The first respondent to pay the costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Valantine v Technical and Further Education Commission & Anor [2007] NSWCA 208 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	06/06/07
JUDGMENT DATE:	20 August 2007
JUDGMENT OF:	Beazley JA at 1; Tobias JA at 2; Gzell J at 3
DECISION:	Orders not justified by the Government and Related Employees Tribunal Act 1980 and appellant could not be required to produce documents in contravention of legal professional privilege, the privilege against self-incrimination or the privilege against exposure to penalties. Appeal allowed, orders set aside, Commission to pay costs of appeal.
CATCHWORDS:	ADMINISTRATIVE LAW - Appeals from Administrative Authorities - Government and Related Employees Tribunal - Head Teacher employed by Technical and Further Education Commission found by Officer appointed by the Commission to have been guilty of breaches of discipline and demoted to teacher - Appeal to Tribunal - Hearing in formal sitting evidence being given on oath subject to cross-examination and with the Commission's case presented first - Power in the Tribunal to make orders for discovery of documents in specified circumstances under the Government and Related Employees Appeal Tribunal Act 1980, s 44(1) - Tribunal made order that the appellant lodge copies of all documents relevant to the appeal, copies of a written case setting out the arguments on which he relied including a case outline, issues in dispute, witness statements and statement of the date he supplied copies of the documents to the Commission - Appeal against those orders - Whether orders justified under the Government and Related Employees Appeal Tribunal Act 1980, s 44(1), s 39 or s 43(1) - Whether legal professional privilege abrogated - Whether it prevented the Tribunal requiring the appellant to lodge witness statements and any other documents within the ambit of the privilege - Whether the privilege against self-incrimination abrogated by the Government and Related Employees Appeal Tribunal Act 1980 and whether it prevented the Tribunal from requiring the appellant to lodge any documents that might tend to incriminate him - Whether the privilege against exposure to penalties is capable of application to quasi-judicial proceedings and whether it is capable of application to formal sittings of the Tribunal - Whether the privilege is excluded either expressly or necessary implication - Whether reduction of rank and loss of salary are exposures to penalties - Whether the appellant was exposed to penalties before the Tribunal notwithstanding that he had already being demoted
LEGISLATION CITED:	Public Sector Employment and Management Act 2002 Government and Related Employees Appeal Tribunal Act 1980 Uniform Civil Procedure Rules 2005 Evidence Act 1995 Judicature Act Technical and Further Education Commission Act 1990 Trade Practices Act 1974 (Cth)
CASES CITED:	Baker v Campbell (1983) 153 CLR 52 Esso Australia Resources Ltd v Federal Commissioner Taxation (1999) 201 CLR 49 Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405 Attorney-General (NT) v…