Morton v The Transport Appeal Board & Anor (No1) [2007] NSWSC 1454

New South Wales Supreme Court

CITATION : Morton v The Transport Appeal Board & Anor (No1) [2007] NSWSC 1454

HEARING DATE(S) : 3 December 2007 - 10 December 2007

JUDGMENT DATE : 12 December 2007

JUDGMENT OF : Berman AJ

DECISION : 1. The decision of the Transport Appeals Board of 11 September 2005 dismissing the Plaintiff's appeal is removed into this Court and quashed. The matter is remitted to a differently constituted Transport Appeals Board for determination according to law. 2. Verdict for the second Defendant in relation to the Plaintiff's claim that the second Defendant breached the contract of employment between him and the second Defendant.

CATCHWORDS : Ferry Master - Allegation of Misconduct - Termination of Employment - Appeal to Transport Appeals Board - Judicial Review - Unreasonable Decision - Apprehended Bias - Composition of Tribunal - Conduct of Tribunal - Failure of all Three Tribunal Members to Participate in Decision - Breach of Contract - Implied Term of Mutual Trust and Confidence

Transport Appeals Board Act 1980 Supreme Court Act 1970 LEGISLATION CITED : State Owned Corporations Act 1989 Transport Administration Amendment (Sydney Ferries) Act 2003 Broadcasting and Television Act 1974

Zattin v Rail Corporation NSW and Anor [2005] NSWSC 1265 McWilliam v Civil Aviation Safety Authority [2006] FCA 1585 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Hamblun v Duffy (No2) (1981) 37 ALR 297 GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal [2004] NSWCA 291 Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 86 Fingleton v Christian Ivanoff Prorietary Limited (1976) 14 SASR 530 at 533 Webb v The Queen (1994) 181 CLR 41 R v PJE CCA (NSW) 9 October 1993 (1995) 2 Crim LN 73 PJE v THe Queen (High Court of Australia, 9 September 1996, S154/1995) DPP v Attallah ]2001] NSWCA 171 CASES CITED : Oze Airlines Proprietary Limited v Australian Airlines Proprietary Limited (1996) 65 FCR 215 at 224 –226) Velasco v Carpenter (1997) 75 IR 268 Minister for Immigration and Ethnic Affairs v Wu Shiang Liang (1996) 185 CLR 259 at 271-2 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. NAQG v Minister for Immigration and Multiculutiral and Indigenous Affairs [2004] FCA 1631, at [17] Wyong Shire Council v MCC Energy Proprietary Ltd [2005] NSWCA 86 at [79] Briginshaw v Briginshaw (1938) 60 CLR 336 Russel v The Trustees of the Roman Catholic Church for the Arch-Diocese of Sydney [2007] NSWSC 104 King v University of St Andrews (2002) SLT 439 Weissensteiner v The Queen (1993) 178 CLR 217 Shevill v The Builders Licensing Board (1982) 149 CLR 620 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623.