SECRETARY OF THE DEPARTMENT OF HEALTH v HARVEY [1990] NSWCA 196

SECRETARY OF THE DEPARTMENT OF HEALTH v HARVEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE (1), MEAGHER (2) AND HANDLEY (3) JJA 31 July 1990, 5 October 1990

[1990] NSWCA 196

ADMINISTRATIVE LAW — JURISDICTION OF GREAT — DENIAL OF PROCEDURAL FAIRNESS — IMPLIED STATUTORY DUTY ON EMPLOYER TO ADVISE EMPLOYEE OF APPEAL RIGHTS ADMINISTRATIVE LAW — Jurisdiction of GREAT — Whether failure to lodge appeal within time mandatory and going to jurisdiction — Denial of procedural fairness — Whether employer under implied statutory obligation to notify employee of right of appeal to Tribunal. held there is no implied statutory duty on an employer to notify affected employees of their appeal rights, the statutory requirement is for employers to notify an employee in writing of an appealable decision thereby fixing a definite date from which the time for appeal would run. The time limitation is mandatory and the Tribunal has no jurisdiction to hear an appeal lodged out of time.

Local Government Act 1919 s312A Industrial Arbitration Act 1940 Suitors' Fund Act 1951 Government and Related Employees Appeal Tribunal Act 1980 s23(1), s24, s26(1), s29(1), s29(s2),29(3), s54 AND s60.

Ex parte Wurth re Flanagan (1957) 58 SR (NSW) 51 Commissioner of Police v Tanos (1958) 98 CLR 383 Agriculture etc. Training Board v Kent [1970] 2 QB 19 Pettitt v Dunkley [1971] 1 NSWLR 376 Patterson v The Public Service Board (1984) 1 NSWLR 237 Forbes v Public Service Board (1986) 14 IR 375 Public Service Board v Osmond (1986) 159 CLR 656 Council of the Shire of Hornsby v Porter (15/6/90 C of A NSW unreported)

Clarke JA I agree with the orders proposed by Handley JA for the reasons he has given.

Meagher JA I agree with Handley JA. This case is a simple one. The Act means what it says, and, what is more important, it does not mean what it does not say.