BROWN v TAFE COMMISSION and ANOR [1996] NSWCA 72

BROWN v TAFE COMMISSION and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and SHELLER JJA 31 January 1996, 31 January 1996

[1996] NSWCA 72

WITHDRAWAL OF APPEAL WITHDRAWAL OF APPEAL — statutory right to withdraw (under s47 GREAT Act). GREAT, wrongly considering an appeal before it was still on foot, made orders against the appellant. When the appeal from GREAT's decision came on for hearing the TAFE Commission conceded the appellant's appeal to GREAT had been withdrawn before GREAT had decided the appeal and that the appeal against GREAT's "orders" must succeed.

ORDERS

1. Appeal upheld.

2. GREAT's orders set aside.

3. TAFE Commission to pay appellant's costs of the appeal.

Priestley, Clarke and Sheller JJA This is an appeal by an employee of the TAFE Commission against orders made by the Government and Related Employees Appeal Tribunal (the Tribunal) on 30 November 1995. Prior to the giving of the "decision" in that appeal and prior to the making of the "orders" against which the appeal to this Court is brought, the appellant had withdrawn his appeal to the Tribunal in accordance with a statutory right to do so.

The first ground of his appeal in this Court was that the Tribunal had erred in purporting to decide the case and make orders, after the withdrawal of his appeal. Written submissions from the appellant and the TAFE Commission in this Court on this first point left this Court with the clear impression that this first point, at least, of those raised by the appellant, must succeed.

Because of that, when the matter was called on for hearing this morning we asked counsel for the TAFE Commission what he had to say in regard to the first point. He said that he had been instructed that if the appellant pressed the first point, then his client conceded that the appeal must succeed. After some discussion it became clear that the appellant did press the first point and the TAFE Commission affirmed the concession already made.