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appeal from GREAT's decision came on for hearing the TAFE Commission conceded the appellant's appeal to GREAT had been withdrawn before GREAT had decided the appeal and that the appeal against GREAT's "orders" must succeed.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appeal and prior to the making of the "orders" against which the appeal to this Court is brought, the appellant had withdrawn his appeal to the Tribunal in accordance with a statutory right to do so.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. There was then some discussion whether there would be any utility in the court giving formal reasons for upholding the appeal on the first ground. The result of the discussion was that the court felt no point would be served by giving formal reasons, on two grounds. One, that any elaboration of what is rather a simple point in any event, in the absence of having heard full argument on that point, is undesirable. Two, that what had been said in the course of discussion as to the reasons why the court felt, particularly after the concession made by the TAFE Commission, that the point must succeed, would be sufficient guidance both to the TAFE Commission and the Tribunal if the same point again arose. On that basis there is nothing more the court need say now than that the appeal is upheld, the orders below are set aside and that the basis for this Court making these orders is that the appellant's appeal to the Tribunal had been withdrawn and was no longer on foot at the time when the Tribunal purported to decide the appeal and make orders. 2 UNREPORTED JUDGMENTS The upholding of the appeal must be with costs in favour of the appellant to be borne by the TAFE Commission. 1. Appeal upheld. 5 2. GREAT's orders set aside. 3. TAFE Commission to pay appellant's costs of the appeal. Counsel for the Appellant: MA Robinson 10 Solicitors for the Appellant: Macmahon Drake Balding Counsel for the Respondent: R Beech-Jones Solicitors for the Respondent: IV Knight, State Crown Solicitor