New South Wales
Court of Appeal
CITATION: WAQA v TECHNICAL AND FURTHER EDUCATION COMMISSION [2009] NSWCA 213 HEARING DATE(S): 3 June 2009
JUDGMENT DATE:
24 July 2009JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Basten JA at 3 DECISION: (1) Grant the applicant leave to appeal.
(2) Direct that the draft notice of appeal contained in the white book be filed within seven days but waive compliance with the Rules with respect to service.
(3) Dismiss the appeal.
(4) Order the appellant to pay the respondent’s costs of the proceedings in this Court.
CATCHWORDS: ADMINISTRATIVE LAW – judicial review – procedural fairness – existence of obligation – hearing – notice to persons affected – ongoing disciplinary investigation – amendment to statutory framework – whether obligation to notify of possible decision under amended framework - ADMINISTRATIVE LAW – judicial review – error of law – whether transitional provisions applied – disciplinary investigation – allegation of misconduct – whether preconditions to exercise of power satisfied - PUBLIC SERVICE – employees – procedure with respect to allegations of misconduct or unsatisfactory work performance – power to take remedial action - WORDS AND PHRASES – "breach of discipline" – "remedial action" LEGISLATION CITED: Education Legislation Amendment (Staff) Act 2006 (NSW), Sch 1.2
Public Sector Employment and Management Act 2002 (NSW), s 4F
Technical and Further Education Commission Act 1990 (NSW), ss 5, 16, 22D, 22E, 22F, 22H, 22J; Pt 4, Sch 4; Pt 6A. cll 11, 12
Uniform Civil Procedure Rules 2005 (NSW), r 36.16CATEGORY: Principal judgment CASES CITED: Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564
Annetts v McCann [1990] HCA 57; 170 CLR 596
Castle v Director-General State Emergency Service [2008] NSWCA 231
Baba v Parole Board (NSW) (1986) 5 NSWLR 338
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576
Commissioner of Police v Ryan [2007] NSWCA 196; 70 NSWLR 73
Commissioner of Police v Tanos [1958] HCA 6; 98 CLR 383
The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145
Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; 46 NSWLR 78TEXTS CITED: Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at [7.90] PARTIES: Mhairi Waqa (Applicant)
Technical and Further Education Commission (Respondent)FILE NUMBER(S): CA 40410/08 COUNSEL: S J Free (Applicant)
S Flanagan (Respondent)SOLICITORS: McLachlan Thorpe Partners (Applicant)
TAFE Commission – Legal Services Directorate (Respondent)
LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 0123/07 LOWER COURT JUDICIAL OFFICER: Harrison AsJ LOWER COURT DATE OF DECISION: 8 August 2008;
Supplementary reason (unrep) 7 November 2008LOWER COURT MEDIUM NEUTRAL CITATION:
Keep reading for free
Create a free CaseChat account to read Waqa v Technical and Further Education Commission 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2009] NSWCA 213
- Decision Date
CaseChat Overview and Summary
The applicant, Mr Waqa, sought judicial review of a decision made by the Technical and Further Education Commission (TAFEC). The dispute concerned an ongoing disciplinary investigation into allegations of misconduct against Mr Waqa. The court that heard the matter was the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether TAFEC had a duty to notify Mr Waqa of a possible decision under an amended statutory framework, despite the disciplinary investigation having commenced prior to the amendment. Additionally, the court was required to determine whether the transitional provisions of the amended framework applied to Mr Waqa's situation, and if the preconditions for TAFEC to exercise its power to take remedial action had been satisfied.
The Court of Appeal granted Mr Waqa leave to appeal. The court directed that a draft notice of appeal be filed within seven days, while waiving compliance with the Rules concerning service. This indicates that the court considered there to be arguable grounds for appeal, warranting further consideration.
The primary legal issues before the Court of Appeal were whether TAFEC had a duty to notify Mr Waqa of a possible decision under an amended statutory framework, despite the disciplinary investigation having commenced prior to the amendment. Additionally, the court was required to determine whether the transitional provisions of the amended framework applied to Mr Waqa's situation, and if the preconditions for TAFEC to exercise its power to take remedial action had been satisfied.
The Court of Appeal granted Mr Waqa leave to appeal. The court directed that a draft notice of appeal be filed within seven days, while waiving compliance with the Rules concerning service. This indicates that the court considered there to be arguable grounds for appeal, warranting further consideration.
Orders
Orders of the court
(1) Grant the applicant leave to appeal. (2) Direct that the draft notice of appeal contained in the white book be filed within seven days but waive compliance with the Rules with respect to service.
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.