Linden Alfred BUTCHER v THE ROADS AND TRAFFIC AUTHORITY [1999] NSWCA 138

New South Wales Court of Appeal CITATION : Linden Alfred BUTCHER v THE ROADS AND TRAFFIC AUTHORITY [1999] NSWCA 138 FILE NUMBER(S) : CA 40748/98 HEARING DATE(S) : 10 May 1999 JUDGMENT DATE : 10 May 1999

PARTIES : Linden Alfred BUTCHER v THE ROADS AND TRAFFIC AUTHORITY JUDGMENT OF : Meagher JA at 35; Stein JA at 1; Giles JA at 36

LOWER COURT JURISDICTION : Government and Related Employees Appeal Tribunal LOWER COURT FILE NUMBER(S) : GREAT 304/98 LOWER COURT JUDICIAL OFFICER : R P J Noonan (Chairman)

COUNSEL : R.F. Wilkins - (Appellant) J.V. Murphy - (Respondent) SOLICITORS : Doyle Kingston and Swift - (Appellant) The Roads and Traffic Authority - (Respondent) CATCHWORDS : Appeal from Government and Related Employees Appeal Tribunal - denial of natural justice - procedural fairness - court officer acting as employee's representative - admission of evidence of enterprise agreement ACTS CITED : Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 33, s 33(2)(b), s 43(1), s 54 Compensation Court Act 1984 (NSW), s 32 DECISION : Appeal dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40748/98 MEAGHER JA STEIN JA GILES JA Monday, 10 May 1999

Linden Alfred BUTCHER v THE ROADS AND TRAFFIC AUTHORITY JUDGMENT 1 STEIN JA: This is an appeal from a decision of the Government and Related Employees Appeal Tribunal (commonly referred to as the GREAT). The decision, which was delivered by the Tribunal on 9 September 1998, arose out of a hearing at Broken Hill on 21 August 1998. It concerned an appeal by Mr Linden Alfred Butcher, the present appellant, and his employer, The Roads and Traffic Authority, the respondent to this appeal. 2 The constitution of the Tribunal at the time of the hearing in August last was Mr R P J Noonan, who was the chairman, Mr C Timson, the employer's representative, and Mr A Conway, the employee's representative. 3 I will return a little later in these reasons to the circumstances of the appointment of Mr Conway as the employee's representative. 4 I need to back-track a little in my dissertation of the facts before coming to the grounds relied on in the appellant's notice of appeal. 5 Mr Butcher, so it seems, was on 20 April 1998 directed to travel in an RTA vehicle to a camp site at Tibooburra at around 6 am. He was directed by his employer to do so. He disputed that he should do so unless he was paid for at least part of the travelling time; so he did not go on that day. 6 The following day he was again directed to do so by his employer and he again refused to do so. He was informed at a later time, including in writing, that he was considered to have abandoned his duty and would be regarded by the employer as being on leave without pay. 7 On 1 May 1998 he lodged a notice of appeal with the GREAT. Thereupon there occurred a question of whether the GREAT had jurisdiction. This was dealt with as a preliminary question by the Tribunal on 15 June 1998 in Sydney. The senior chairman, Mr J L Lynn, presided and had power under the Government and Related Employees Appeal Tribunal Act 1980 (the GREAT Act) to determine the question of jurisdiction. 8 The senior chairman, in the reasons he gave, noted that the appellant had twice travelled from Broken Hill to attend the Tribunal and, in those circumstances, he believed that the matter should be dealt with immediately. After a hearing on the preliminary point Mr Lynn gave a decision. The decision was a favourable one to the appellant and that meant that jurisdiction had been found, notwithstanding that Mr Butcher had not been dismissed as such. 9 It was then necessary for the hearing on the merits to be set down and, for the convenience of the parties and the witnesses, that was to take place in Broken Hill. As I have mentioned, that hearing took place on 21 August 1998, when Mr Kingston, solicitor, appeared for the appellant and Mr Murphy, who has appeared for the respondent before us today, appeared for the Roads and Traffic Authority. 10 There are essentially two grounds of appeal. The first is that Mr Conway's membership of the Tribunal at the hearing of 21 August 1998 denied procedural fairness to the appellant in that, so far as I understand the appellant's submission, there was a reasonable apprehension of bias on the part of Mr Conway. 11 The second point in the appeal relates to the admission into evidence of a document known as the 'Butterfield Agreement'. It is maintained in the notice of appeal that this document was wrongly admitted into evidence. 12 Before dealing with these two grounds of appeal, it is as well to note some relevant provisions in the GREAT Act. Section 54 deals with appeals to the Supreme Court and, under the Supreme Court Act 1970 (NSW), the jurisdiction to hear an appeal resides in the Court of Appeal. 13 Section 54 of the GREAT Act provides for a right of an appeal to the Supreme Court against any decision of the Tribunal on a question of law. Interestingly enough, it does not go on to add as, for example, s 32 Compensation Court Act 1984 does, that whilst there is an appeal on a question of law only (and not fact) there is also an appeal in relation to the wrongful admission of evidence. Section 54 of the GREAT Act does not add that and there may well be a good reason why it does not. The Tribunal by reason of s 43(1) of the GREAT Act, is not bound by the rules or practice as to evidence and may inform itself on any matter in such manner as it thinks fit. 14 The other section to mention as relevant to the appeal is s 33. The Tribunal at any hearing, other than perhaps one that relates purely to jurisdiction, comprises three persons; a senior chairman or chairman, and that in this case was Mr Noonan, an employee's representative and an employer's representative. The Act provides how the panels for each list of representative employee and employer are made. I need not go into those details. 15 However, s 33 provides for a situation where either an employer or employee representative neglects or refuses to take an oath referred to in Schedule 2 to the Act, or importantly for this case, is not present at the time, on the date and at the place appointed for the hearing of the appeal. 16 In that circumstance the chairman presiding at the time may select a person to act in the place of that member and, so far as the employee's representative is concerned, the only requirement under s 33(2)(b) is that the employee's representative has to be an employee. 17 Subsection (3) provides that a person so selected, in the circumstances which I have just mentioned, while acting in the place of a member, shall have and may exercise the functions of a member. 18 It appears for the purposes of the first argument that Mr Conway, who was an officer of the Department of Industrial Relations, (and therefore an employee under the provision which I have just mentioned) was acting as a Court or Tribunal officer at the hearing on 15 June 1998 when the senior chairman dealt with the jurisdictional issue. 19 When the employee's representative did not turn up at Broken Hill for the hearing of the merits of the appeal on 21 August, according to the evidence before us, immediately before the hearing commenced the legal representatives for the parties were called into chambers. Mr Noonan, the chairman presiding, indicated to them, that is, Mr Kingston, the solicitor for the appellant, and I assume Mr Murphy, who appeared for the employer, that the employee's representative had failed to show up and that he had selected a person to act in the place of that member. That person was Mr Conway, who was an employee of the Department of Industrial Relations. The chairman referred then specifically to s 33 of the GREAT Act as giving him the power to do so and asked whether there was any objection. According to the evidence before us, at least from Mr Kingston for the appellant, but I also assume the representative for the employer, indicated there was no objection. 20 The hearing then commenced and at the very outset of the hearing the chairman said the following in the presence of the appellant and his legal representative, the respondent officers and its legal representative: For the record the person selected to be the employee's representative on the Tribunal is not present at the time, date and place fixed for the hearing of this appeal so pursuant to s 33 of the Government and Related Employees Appeals Tribunal Act I have selected another employee, Mr Conway, employed by the Department of Industrial Relations to be the employee's representative for the purposes of the hearing of the appeal. 21 I should interpolate that the transcript refers to Mr Conway as the employer's representative, but both parties agree that there is a transcript error and the reference was to the employee's representative.