Valantine v Technical and Further Education Commission & Anor [2007] NSWCA 208

Reported Decision: 166 IR 459

New South Wales Court of Appeal

CITATION: Valantine v Technical and Further Education Commission & Anor [2007] NSWCA 208 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 06/06/07

JUDGMENT DATE: 20 August 2007

JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; Gzell J at 3

DECISION: Orders not justified by the Government and Related Employees Tribunal Act 1980 and appellant could not be required to produce documents in contravention of legal professional privilege, the privilege against self-incrimination or the privilege against exposure to penalties. Appeal allowed, orders set aside, Commission to pay costs of appeal.

CATCHWORDS: ADMINISTRATIVE LAW - Appeals from Administrative Authorities - Government and Related Employees Tribunal - Head Teacher employed by Technical and Further Education Commission found by Officer appointed by the Commission to have been guilty of breaches of discipline and demoted to teacher - Appeal to Tribunal - Hearing in formal sitting evidence being given on oath subject to cross-examination and with the Commission's case presented first - Power in the Tribunal to make orders for discovery of documents in specified circumstances under the Government and Related Employees Appeal Tribunal Act 1980, s 44(1) - Tribunal made order that the appellant lodge copies of all documents relevant to the appeal, copies of a written case setting out the arguments on which he relied including a case outline, issues in dispute, witness statements and statement of the date he supplied copies of the documents to the Commission - Appeal against those orders - Whether orders justified under the Government and Related Employees Appeal Tribunal Act 1980, s 44(1), s 39 or s 43(1) - Whether legal professional privilege abrogated - Whether it prevented the Tribunal requiring the appellant to lodge witness statements and any other documents within the ambit of the privilege - Whether the privilege against self-incrimination abrogated by the Government and Related Employees Appeal Tribunal Act 1980 and whether it prevented the Tribunal from requiring the appellant to lodge any documents that might tend to incriminate him - Whether the privilege against exposure to penalties is capable of application to quasi-judicial proceedings and whether it is capable of application to formal sittings of the Tribunal - Whether the privilege is excluded either expressly or necessary implication - Whether reduction of rank and loss of salary are exposures to penalties - Whether the appellant was exposed to penalties before the Tribunal notwithstanding that he had already being demoted