Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Ors [2004] NSWCA 291

New South Wales Court of Appeal

CITATION : Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Ors [2004] NSWCA 291 HEARING DATE(S) : 24 August 2004 JUDGMENT DATE : 31 August 2004

JUDGMENT OF : Sheller JA at 1; Giles JA at 2; Ipp JA at 36 DECISION : (1) Order that the Government and Related Employees Appeal Tribunal be prohibited from further hearing appeal 254 of 2003 between David Richard Ellam and the Commissioner of Corrective Services with Geoffrey Hopkins as a member; (2) Order that the third opponent pay the claimant's costs; (3) Reserve liberty to the third opponent to apply for the grant of an indemnity certificate pursuant to s 6(1) of the Suitors Fund Act 1951; (4) Direct that any such application be made by written submissions filed and served within seven days, any submissions from the claimant or notification that the claimant does not wish to put submissions within a further three days.

CATCHWORDS : Prohibition against Tribunal - reasonable apprehension of bias - Tribunal hearing disciplinary appeal against dismissal by Department - Chairperson's term of office to expire - appointment of replacement by application and selection process - Chairperson asks Department's representative sitting with him on the appeal about a reference from the Department - Department declines - application to Chairman to disqualify himself - application declined - HELD: reasonable apprehension of bias - order prohibiting Chairman's further participation in the hearing. D Aussie Airlines Pty Ltd v Australian Airline Pty Ltd (1996) 135 ALR 753; Barton v Walker (1979) 2 NSWLR 740 Ebner v Official Trustee (2000) 205 CLR 337; ex Parte Parsons (1952) 69 WN (NSW) 380; Livesey v New South Wales Bar Association (1983) 151 CLR 288; CASES CITED : Rajski v Wood (1989) 18 NSWLR 512; Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272; Re Finance Sector Union of Australia; ex parte Illaton Pty Ltd (1992) 66 ALJR 583; Re JLR; ex parte CJL (1986) CLR 342; Re Polites; ex parte Hoyts Corportion Pty Ltd (1991) 173 CLR 78; Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982. PARTIES : David Richard Ellam - Third Opponent FILE NUMBER(S) : CA 40686/04 COUNSEL : P Menzies QC & R J Bromwich - Claimant S Crawshaw SC & M Gibian - Third Opponent SOLICITORS : I V Knight, Crown Solicitor - Claimant Jones Staff & Co - Third Opponent