Rail Corporation New South Wales v Brown [2012] NSWIRComm 14

Industrial Relations Commission New South Wales Medium Neutral Citation: Rail Corporation New South Wales v Brown [2012] NSWIRComm 14 Hearing dates: 15 December 2011 Decision date: 14 March 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President, Walton J, Vice-President, Haylen J Decision: (1) Leave to appeal is granted. (2) The decision of the Transport Appeal Board is set aside but otherwise the Appeal is dismissed. (3) The application by Mr Brown for reinstatement of employment is remitted to the Transport Appeal Board to deal with any Application for Extension of Time to Appeal and if necessary, the merit of the application for reinstatement. Catchwords: TRANSPORT APPEALS BOARD ACT 1980 - s 23A s 13 - appeal on question of law against any decision of the Appeal Board - nature of appeal - need for decision on question of law to be manifested in decision - distinction between questions of law and questions of fact - Appeal Tribunal determines that notice of appeal lodged within 21-days of notification of disciplinary decision - notice of appeal forwarded to previous address of Appeal Board - notice of first appeal not received - second notice of appeal lodged outside of 21-day time limit - s 13 provides appeals to be lodged within 21 days - held first appeal not lodged - on proper construction of s 13 in the context of the Act and the Industrial Relations Act 1996, time for appeal may be extended where substantial compliance - appeal upheld - decision of Appeal Board set aside - appeal remitted to Appeal Board to consider any application for extension of time and, if necessary, to hear the appeal Legislation Cited: District Court Act 1973 Government and Related Employees Appeal Tribunal Act 1980. Industrial Arbitration Act 1940 Industrial Relations Act 1996 Supreme Court Act 1970 The Legal Practitioners Act 1989 Transport Appeals Board Act 1980 Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985); 4 NSWLR 139 Cole v Director General of the Department of Youth and Community Services and anor (1987) 7 NSWLR 541 Commissioner of Police v Dalziel [2011] NSWCA 290 Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Grygiel v Baine [2005] NSWCA 218 Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 Maritime Services Board v Murray (1993) 52 IR 455 Matkevich v New South Wales Technical & Further Education Commission (1995) 36 NSWLR 718; (1995) 65 IR 46 McDonald's Australia Holdings Ltd and anor v Industrial Relations Commission of New South Wales [2005] NSWCA 286; (2005) 223 ALR 78; (2005) 144 IR 219 Patterson v The Public Service Board [1984] 1 NSWLR 237; 6 IR 468 Project Blue Sky Inc and ors v Australian Broadcasting Authority [1998] HCA 28 (1998) 194 CLR 355 Re David [1947] HCA 53; (1947) 75 CLR 415 Secretary of the Department of Health v Harvey (1990) 34 IR 58 Tenedora v RailCorp (15/11/2010) TAB 597/10 Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 Totalisator Agency Board (NSW) v Casey and anor (1994) 54 IR 354 Category: Principal judgment Parties: Rail Corporation New South Wales (Appellant) Robert Anthony Brown (Respondent) Representation: P Ginters of counsel (Appellant) C Howell of counsel (Respondent) Rail Corporation New South Wales (Appellant) Australian Rail, Tram and Bus Industry Union, NSW Branch (Respondent) File Number(s): IRC 1651 of 2011 Decision under appeal Citation: Brown and RailCorp [2011] NSWTAB 19 Date of Decision: 2011-10-14 00:00:00 Before: Macdonald C File Number(s): TAB 1102 of 2011