Huggins v Mullins [2011] NSWSC 1123

Supreme Court New South Wales

Medium Neutral Citation: Huggins v Mullins [2011] NSWSC 1123 Hearing dates: 15 September 2011 Decision date: 22 September 2011 Jurisdiction: Common Law Before: Harrison J Decision: Subject to any submissions the parties may wish to make, I make the following orders: 1. The first defendant be restrained by himself, his servants or agents or howsoever otherwise from making or purporting to make any finding as to the guilt or otherwise of the plaintiff in relation to the charge of misconduct, the subject of a Formal Inquiry Report made by Assistant Commissioner Mark Brown dated 27 April 2011. 2. The defendants be restrained by themselves, their servants or agents or howsoever otherwise from taking or purporting to take any disciplinary action against the plaintiff under Division 5 of the Fire Brigades Regulation 2008 in relation to the charge of misconduct, the subject of a Formal Inquiry Report made by Assistant Commissioner Mark Brown dated 27 April 2011. 3. Order the defendants to pay the plaintiff's costs. Catchwords: ADMINISTRATIVE LAW - where firefighter charged with misconduct under Fire Brigades Regulation 2008 and suspended - where formal inquiry officer found firefighter not guilty of misconduct - where nominated officer did not endorse that finding and made recommendations to Commissioner that misconduct was established and disciplinary action should be taken - where Commissioner intended to make finding as to whether firefighter guilty of misconduct - where s 45(5) requires that if a firefighter is found not guilty of misconduct, the nominated officer must terminate any suspension immediately - whether Commissioner has power to make finding as to guilt - whether nominated officer has power to overturn the decision of the formal inquiry officer - Commissioner and nominated officer do not have power to make finding as to guilt or otherwise of misconduct Legislation Cited: Fire Brigades Regulation 2008 Category: Principal judgment Parties: Wayne Huggins (Applicant) Greg Mullins (First Respondent) John Benson (Second Respondent) Fire and Rescue New South Wales (Third Respondent) Representation: M Spry (Applicant) M Easton (Respondents) Howes Kaye Halpin (Applicant) Fire and Rescue NSW (Respondents) File Number(s): 2011/193576