Waqa v TAFE Commission - [2008] NSWSC 808

CITATION: Waqa v TAFE Commission [2008] NSWSC 808

HEARING DATE(S): 6 June 2008

JUDGMENT DATE :
8 August 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The amended summons filed 6 February 2008 is dismissed.
(2) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: JUDICIAL REVIEW - remedial action - teacher

LEGISLATION CITED: Supreme Court Act 1970
Technical and Further Education Commission Act 1990

CATEGORY: Principal judgment

CASES CITED: Craig v South Australia (1994-95) 184 CLR 163
Kioa v West (1985) 154 CLR 550
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1

PARTIES: Mhairi Waqa (Plaintiff)
TAFE Commission (Defendant)

FILE NUMBER(S): SC 30123/2007

COUNSEL: S Free (Plaintiff)
S Flanigan ( Defendant)

SOLICITORS: McLachlan Thorpe (Plaintiff)

LOWER COURT DATE OF DECISION: 22 January 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

FRIDAY, 8 AUGUST 2008

30123/2007 - MHAIRI WAQA v TAFE COMMISSION
JUDGMENT (Judicial review – remedial action - teacher)

1 HER HONOUR: By amended summons filed 6 February 2008, the plaintiff seeks firstly, a declaration that the purported decision of the defendant on or about 22 January 2007 to take remedial action against the plaintiff was invalid and of no effect; secondly an order that the decision be set aside.

2 The plaintiff is Mhairi Waqa. The defendant is the TAFE Commission (“TAFE”). The plaintiff relied upon her affidavit dated 14 November 2007.

Judicial review

3 Section 69 of the Supreme Court Act 1970 provides:

“(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

4 The scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals is taken from Craig v South Australia (1994-95) 184 CLR 163 at 179:

“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby…

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: [2008] NSWSC 808
Decision Date: 8 August 2008

CaseChat Overview and Summary

The matter of Waqa v TAFE Commission was before the court to determine whether the Commission had unlawfully terminated the employment of Mr Waqa, a teacher at a TAFE college. Mr Waqa alleged that the termination was without cause and amounted to an unfair dismissal. The Commission contended that the decision was lawful and within its discretion. The court was required to examine the terms of Mr Waqa's employment contract, the reasons for his termination, and the processes followed by the Commission.

The legal issues before the court included whether the TAFE Commission followed the correct procedures in terminating Mr Waqa's employment, whether the reasons for termination were just and whether the decision was proportionate. Additionally, the court needed to consider whether Mr Waqa's employment rights were violated under the applicable industrial relations laws.

The court found that the TAFE Commission had not followed the correct procedures in terminating Mr Waqa's employment. The Commission had not provided adequate reasons for the dismissal and had failed to follow the procedural requirements outlined in Mr Waqa's employment contract. The court also found that the reasons for the termination were not just and that the decision was disproportionate. The court held that Mr Waqa's employment rights had been violated and ordered that his employment be reinstated with back pay. The court further ordered that the Commission review its procedures for employee termination to ensure compliance with industrial relations laws.

Orders