Kelly v Commissioner of the Department of Corrective Services & Anor [2001] NSWCA 148

Reported Decision : (2001) 106 IR 181 52 NSWLR 533

New South Wales Court of Appeal

CITATION : Kelly v Commissioner of the Department of Corrective Services & Anor [2001] NSWCA 148 FILE NUMBER(S) : CA 40270/00 HEARING DATE(S) : 3 May 2001 JUDGMENT DATE : 25 May 2001

Leslie Kelly (Appellant) PARTIES : Commissioner of the Department of Corrective Services (1st Respondent) Government and Related Employees Appeal Tribunal (2nd Respondent) JUDGMENT OF : Giles JA at 1; Heydon JA at 7; Rolfe AJA at 97

LOWER COURT JURISDICTION : GREAT LOWER COURT GREAT 623/99 FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

Mr M L D Einfeld QC/Mr A A Hatcher (Appellant) COUNSEL : Ms T J Anderson (1st Respondent) Submitting appearance (2nd Respondent) Jones Staff & Co (Appellant) SOLICITORS : I V Knight (1st Respondent) GREAT (2nd Respondent) CATCHWORDS : Administrative Law - Jurisdiction of Government and Related Employees Appeals Tribunal - Whether Tribunal lacked jurisdiction to review decision to recommend dismissal of officer to Governor - Whether Tribunal lacked jurisdiction to review decision to withhold salary from suspended officer - Existence of jurisdictional fact - Whether relevant decisions were "disciplinary" in nature so as to invoke Tribunal's jurisdiction - Government and Related Employees Appeals Tribunal Act 1980 (NSW), ss 23(1)(e) and 23(1)(f). - Employment Law - Whether Crown's prerogative right to dismiss public employees at pleasure can be fettered by an appeal to the Government and Related Employees Appeals Tribunal - Where appeal to Tribunal was against decision to recommend dismissal to Governor rather than against dismissal decision itself - Government and Related Employees Appeals Tribunal Act 1980 (NSW), ss 23(1)(e), 23(1)(f) and 37. - Statutory Construction - Whether sections of Government and Related Employees Appeal Tribunal Act should be read down so as to detract from the Crown's prerogative right to dismiss at pleasure - Whether Parliament intended Tribunal to hear appeals against decisions to recommend to the Governor that an officer be dismissed subject to the Crown's right to dismiss at pleasure - Government and Related Employees Appeal Tribunal Act 1980 (NSW), ss 23(1), 24(1) and 37 - and Public Sector Management Act 1988 (NSW), s 54. D Civil Service Act 1884 Crown Employees Appeal Board Act 1944 Crown Proceedings Act 1988 Government and Related Employees Appeal Tribunal Act 1980 LEGISLATION CITED : Public Sector Management Act 1988 Public Service Act 1895 Public Service Act 1902 Public Service Act 1979 Supreme Court Act 1970 Australian Communist Party v The Commonwealth (1951) 83 CLR 1 Baker v Campbell (1983) 153 CLR 52 Bropho v State of Western Australia (1990) 171 CLR 1 Council of Civil Service Trade Unions v Minister for the Civil Service [1985] AC 374 Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 Dunn v R [1896] 1 QB 116 Ex parte Wurth; re Craig (1954) 55 SR (NSW) 47 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Gould v Stuart [1896] AC 575 John v Rees [1970] Ch 345 Kaye v Attorney-General for Tasmania (1956) 94 CLR 193 CASES CITED: Malloch v Aberdeen Corporation [1971] 2 All ER 1278 Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385 Minister for Arts Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 Morrison v Abernethy School Board (1876) 3 R 945 Power v R (1873) 4 AJR 141 R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 Ridge v Baldwin [1964] AC 40 Ryder v Foley (1906) 4 CLR 422 Shenton v Smith [1895] AC 229 Smith v Allan, Secretary, Treasury of New South Wales (1993) 31 NSWLR 52 Sorby v The Commonwealth (1983) 152 CLR 281 In re Tufnell (1876) 3 Ch D 164 Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169 DECISION : See para 96