RAHMAN v DIRECTOR-GENERAL DEPARTMENT OF EDUCATION & TRAINING [2005] NSWCA 285

New South Wales Court of Appeal

CITATION: RAHMAN v DIRECTOR-GENERAL DEPARTMENT OF EDUCATION & TRAINING [2005] NSWCA 285

HEARING DATE(S): 22 August 2005

JUDGMENT DATE: 22 August 2005

JUDGMENT OF: Mason P at 1; Handley JA at 32; Bryson JA at 33

DECISION: Summons dismissed with costs

CATCHWORDS: Termination of employment - s84 Industrial Relations Act 1996 - Industrial Relations Commission decision that s84 was not engaged - s 179 Industrial Relations Act 1996 - mandamus sought - no appellate jurisdiction - no prerogative jurisdiction - motion summarily dismissed. (ND)

M Tibibar RAHMAN PARTIES: DIRECTOR-GENERAL OF THE DEPARTMENT OF EDUCATION & TRAINING

FILE NUMBER(S): CA 40109/05

Claimant/Appellant: In person COUNSEL: Opponent/Respondent: P Newall

Claimant/Appellant: In person SOLICITORS: Opponent/Respondent: Director-General Department of Education and Training

LOWER COURT JURISDICTION: Industrial Relations Commission

LOWER COURT FILE NUMBER(S): IRC 3507/04

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40109/05

MASON P HANDLEY JA BRYSON JA

Monday 22 August 2005

M TABIBAR RAHMAN v DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION AND TRAINING JUDGMENT

1 MASON P: Mr Rahman, the court is persuaded that we do not have jurisdiction in this matter and that it is appropriate that it should be dismissed. I am going to give some short reasons that will hopefully explain to you the difficulties in your case. 2 There were earlier proceedings in the Court of Appeal that were heard and disposed of by Hodgson JA, whose reasons (Rahman v Director General, Department of Education and Training [2005] NSWCA 158) provide some general background to the application that was heard today. 3 In truth there are three summonses that are before the Court of Appeal at the present time. The first was filed on 4 January 2005 in the Common Law Division and it was referred by Howie J to the Court of Appeal because his Honour correctly perceived that s48 of the Supreme Court Act meant that proceedings of that nature were to be dealt with by the Court of Appeal. 4 The second document in the form of an originating process is a handwritten summons dated 30 May 2005. 5 CLAIMANT: Your Honour, just one point. I made a summons by the directions of the Peter Schell. It should be provisions of the Pt 59. I made in my submissions a direction by the Peter Schell and start not to take - so I have mention in my submissions in the-- 6 MASON P: It's a summons you want to file? 7 CLAIMANT: Yes. 8 MASON P: Yes, well I understand that. 9 CLAIMANT: Part 59, it should be by 59, but they say - and the last day was - should be - and the provision about sections I have to give in four weeks but Mr Honourable Justice he give me only three weeks, so the last was 30 May. I come here on the court and the court is still directed by the Peter Schell not to take my submissions. Finally they accepted me by the direction of Peter Schell. I have to submit that summons form 6-- 10 MASON P: I understand that but I want to deal with the substance of the matter. 11 The second document which has been filed in court, it is sealed, it is a handwritten document called Form 6 summons and it was filed on 30 May 2005, and in it the plaintiff Mr Rahman claims an order to set aside the decisions of the Industrial Relations Commission and a declaration. 12 The third document is a summons for leave to appeal in Form 59. It is not entirely clear whether it has been filed but it is part-- 13 CLAIMANT: No, it's not, your Honour, the form. That should be - you should file appropriately. 14 HIS HONOUR: It is a document which Mr Rahman wishes to file and I will treat as before us. It is an application for an order granting leave to appeal from the decision of Hodgson JA. 15 There are many procedural complications and issues that are addressed by Hodgson JA, but in fairness to the claimant Mr Rahman I should go directly to the more substantive issues. 16 In September 2003 the Department of Education and Training, to use a very neutral expression, put an end to Mr Rahman's employment as a part time teacher. Mr Rahman challenged that decision and brought proceedings in the Industrial Relations Commission pursuant to s84 of the Industrial Relations Act 1996. That is a provision that states that if an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under Pt 6 of Chapter 2 of that Act. 17 The matter was heard and determined by Commissioner McKenna, who gave a decision on 3 June 2004. The Commissioner dismissed the application effectively on two alternative grounds. The first was the conclusion that she reached that the period of casual employment of the claimant was conditional and for a defined period of time, and that there was therefore not a termination of employment. She also found that the Department's decision not to renew the teaching engagement did not constitute termination that would attract s84. 18 Mr Rahman has made it very clear that he disputes that interpretation of the factual situation, but that nevertheless was how Commissioner McKenna saw it. The Commissioner also dismissed the application on procedural grounds because of delay in making it. 19 The matter was taken on appeal to the Full Bench of the Industrial Relations Commission. That Full Bench has jurisdiction to entertain appeals by leave conferred by ss 187 and 188 of the Industrial Relations Act. The decision of the Full Bench ([2004] NSWIRCOM 370) was given on 3 December 2004. Leave to appeal was refused and the appeal was dismissed. 20 As I indicated, Mr Rahman then brought proceedings initially in the Common Law Division but, pursuant to Howie J's order of referral, they were brought in this Court. 21 The substance of the relief that he seeks, whether appellate or prerogative, is an order that would compel the Industrial Relations Commission to hear and determine the applications he brought in that Commission. He contends that the Commission wrongly interpreted the factual situation and therefore erred in deciding that s84 of the Industrial Relations Act was not engaged. He also has additional related allegations as to the competence or worse of the Commissioner in dealing with the matter. Because we have a duty to determine our jurisdiction before embarking on any hearing whether lengthy or short, we heard submissions directed at that matter in the first instance. 22 I should say by way of preliminary that it is very well established that there is no right of appeal from any court or tribunal unless Parliament has conferred it. An appeal is not a common law remedy, it is a statutory remedy. It is also clear law that merely because a tribunal or court is mentioned in s48 of the Supreme Court Act does not in itself confer a right of appeal. That was recently decided by this Court in the case of Frost v Amaca Pty Limited (2004) 61 NSWLR 159. 23 Mr Rahman invoked Pt 51 r8 of the Supreme Court Rules. He has clearly misunderstood the impact of that rule. It is a procedural rule that provides that where there is an appeal to the Court of Appeal that is restricted by reference to a specified amount or value of money, then an affidavit must be filed which establishes that that hurdle has been overcome. It does not confer a right of appeal and certainly does not do so in the present situation. 24 The alternative basis upon which, speaking generally, Mr Rahman knocked on this Court's door was its jurisdiction based on the old prerogative writs. The Court's jurisdiction is preserved in a slightly modified form in s 69 of the Supreme Court Act. Mr Rahman is perfectly correct in reading s 48 of the Supreme Court Act as indicating that this is the Court to which you come if you seek judicial review based upon the equivalent of an old prerogative writ with respect to the Industrial Relations Commission. 25 However, s69 is a general provision and s179 of the Industrial Relations Act, to which Mr Rahman made reference in his submissions, is a specific provision that regulates and restricts and constricts the judicial review jurisdiction that this Court would otherwise have. It provides that subject to the exercise of a right of appeal to a Full Bench of the Commission, a decision or purported decision of the Commission however constituted is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal whether on an issue of fact, law, jurisdiction or otherwise. And subs (2) of that provision states that all manner of remedies are prohibited to this Court including a remedy in the nature of certiorari or mandamus or declaration. 26 Mr Rahman, who has shown quite an understanding of matters legal, made passing reference to the High Court decision in Hickman. I do not want him to think that we have overlooked that submission but-- 27 CLAIMANT: Just a minute, your Honour. 28 MASON P: Please do not interrupt. That decision is authority that in certain circumstances, privative clauses which prohibit the grant of certiorari will be construed restrictively. But, as I have indicated already, the substantive relief that Mr Rahman seeks is mandamus. He invoked the jurisdiction of the Industrial Relations Commission, the Commission had jurisdiction to entertain his proceeding. His real complaint is that the Commission did not find in his favour. His real complaint is that there were errors of fact or law in the determination by the Commission. 29 There have been some very general allegations in the written submissions and in the oral submissions to the effect that the Commissioners were not properly appointed, or that there was gross dereliction of duty or even corruption. Those are very serious allegations that would require the clearest of evidence. Nothing in the material that has been put before this Court indicates that there is any substance in those allegations. 30 I come back to the jurisdictional question, and it is clear in my view for the reasons I have given that there is no appellate jurisdiction and there is no prerogative jurisdiction in the particular matter before us. In those circumstances there is really no point in considering some of the procedural matters that arise out of Hodgson JA's reasons. The substance of his order was that this Court had no jurisdiction and that the process that had been filed in this Court ought to be struck out as an abuse of process. 31 In my view, there is a need to put an end to this litigation because of the jurisdictional problem and the absence of any substance in it. Accordingly, pursuant to Pt 13 of the Uniform Civil Procedure Rules, I propose that each of the following processes be summarily dismissed with costs: