Azzi v State of New South Wales [2024] NSWCA 169

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Azzi v State of New South Wales [2024] NSWCA 169 Hearing dates: 4 April 2024 Date of orders: 16 July 2024 Decision date: 16 July 2024 Before: Ward P at [1]; Leeming JA at [2]; Kirk JA at [15] Decision: (1) Appeal dismissed. (2) The parties are to notify each other by 5pm on 23 July 2024 of what orders they propose should be made as to costs of the appeal. (3) If the parties do not agree on the appropriate order as to costs of the appeal, they each may file and serve written submissions of up to 3 pages on the issue, along with any evidence relied on, by 5pm on 30 July 2024. (4) The parties may file and serve any reply submissions, of no more than 2 pages, by 5pm on 2 August 2024. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Crown and ministerial employees – Termination of a senior executive for alleged misconduct in failing to comply with directions ADMINISTRATIVE LAW – Unreasonableness – Obvious inquiry into critical fact – Fact in question not critical – No obvious inquiry – Claim that directions to employee unlawful for non-compliance with industrial award and for contravention of Anti-Discrimination Act 1977 (NSW) – No unlawfulness established – Delegation of power – Materiality where decision-maker not authorised to make decision – Relevance of materiality to discretionary grant of relief ADMINISTRATIVE LAW – Hearing rule – Notice – Adverse information credible, relevant and significant to decision – Substance of information already put – No requirement for running commentary upon decision-maker's opinion about evidence – Remaking of first decision – Whether notice needed to be given of second decision – Notice was required of second decision Legislation Cited: Anti-Discrimination Act 1977 (NSW), s 25(2) Crimes Act 1900 (NSW), s 43 Government Sector Employment Act 2013 (NSW), ss 12, 26, 27, 58, 69 Work Health and Safety Act 2011 (NSW), s 19 Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009, cll 43.2, 65 Government Sector Employment (General) Rules 2014 (NSW), r 4, Pt 8 Cases Cited: AB v Independent Broad-based Anti-corruption Commission [2024] HCA 10; (2024) 98 ALJR 532 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 Bignell v New South Wales Casino Control Authority [2000] NSWCA 38; (2000) 48 NSWLR 462 Bread Manufacturers of New South Wales v Evans [1981] HCA 69; (1981) 180 CLR 404 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Grant v BHP Coal Pty Ltd [2017] FCAFC 42; (2017) 247 FCR 295 Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374 Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 O'Reilly v Commissioners of State Bank of Victoria [1983] HCA 47; (1982) 153 CLR 1 Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23; (2014) 87 NSWLR 41 Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Texts Cited: Robin Creyke et al, Control of Government Action (6th edn, LexisNexis, 2022) Category: Principal judgment Parties: Maroun (Mark) Azzi (Appellant) State of New South Wales (Respondent) Representation: Counsel: R Francois (Appellant) OR Jones (Respondent)