Derikuca v Secretary, Department of Education [2022] NSWSC 1239

Supreme Court New South Wales

Medium Neutral Citation: Derikuca v Secretary, Department of Education [2022] NSWSC 1239 Hearing dates: 14 June 2022 Date of orders: 14 September 2022 Decision date: 14 September 2022 Jurisdiction: Common Law Before: Rothman J Decision: (1) An order in the nature of certiorari quashing the decision of the defendant to include the name of the plaintiff on the Not to be Employed List created and maintained under the provisions of s 7E of the Education (School Administrative and Support Staff) Act 1987 (NSW) and/or s 7(1)(e) of the Teaching Service Act 1980 (NSW); (2) A declaration that the defendant has no power under the contract between Property NSW and ISS Property Services Pty Ltd to exclude the plaintiff pursuant to the terms of Clause 5.5.1(e) or (f) from school sites; (3) The parties are referred to mediation before the Registrar of the Court, which mediation should also include ISS Property Services Pty Ltd, which mediation should occur on or before 23 September 2022; (4) Each party is to file and serve submissions on the outstanding issues referred to in the reasons for judgment by close of business on 7 October 2022, if the proceedings and controversy are not resolved at the mediation; (5) Pursuant to the provisions of the Uniform Civil Procedure Rules 2005 (NSW), r 7.36, I refer the plaintiff to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for advice; representation in the mediation and any further proceedings in the Court; and the crafting of the written submissions required by these orders. Catchwords: ADMINISTRATIVE LAW – existence of legislative authority for conduct by Secretary of Department – plaintiff not employee of defendant – legislative authority confined to employees – certiorari issued CONTRACT – privity of contract – powers under contract – different entity granted contractual power – no authority under contract TORTS – economic torts – intentional inducing of breach of contract – remedies Legislation Cited: Competition and Consumer Act 2010 (Cth), ss 4F, 45D Education (School Administrative and Support Staff) Act 1987 (NSW), s 7E Teaching Service Act 1980 (NSW), s 7 Work Health and Safety Act 2011 (NSW), ss 10, 19 Supreme Court Act 1970 (NSW), ss 63, 66 Cases Cited: Allen v Flood [1989] AC 1 Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124; [1986] FCA 636 Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104; [1991] FCA 96 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Geyer v Downs (1977) 138 CLR 91; [1977] HCA 64 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 Lumley v Gye (1853) 2 E & B 216; 118 ER 749 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 OBG v Allan; Douglas v Hello! (No 3) [2008] 1 AC 1 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 Quinn v Leathem [1901] AC 495 Re McBain; Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA 16 Stratford v Lindley [1965] AC 269 The Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40 Thomson v Deakin [1952] Ch 106 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Torquay Hotel Co Ltd v Cousins (1969) 2 Ch 106; [1969] 1 All ER Williams v Hursey (1959) 103 CLR 30; [1959] HCA 51 Category: Principal judgment Parties: Stevo Derikuca (Plaintiff) Secretary, Department of Education (Defendant) Representation: Unrepresented (Plaintiff) M Seck (Defendant) File Number(s): 2021/33719