Byrne v Rail Corporation of NSW [2012] NSWIRComm 117

Industrial Relations Commission New South Wales Medium Neutral Citation: Byrne v Rail Corporation of NSW [2012] NSWIRComm 117 Hearing dates: 28 June 2012; 3 and 26 July 2012 (written submissions) Decision date: 25 October 2012 Jurisdiction: Industrial Court of NSW Before: Walton J, Vice-President; Staff J; Backman J Decision: 1. To the extent required, leave to appeal is granted. 2. The appeal is upheld. 3. The matter is remitted to the Transport Appeal Board of New South Wales to be determined in accordance with this decision. Catchwords: APPEAL - leave to appeal - s 23A Transport Appeal Boards Act 1980 - various issues raised on appeal - appeal resolved on two of the grounds relied upon against decision of Transport Appeals Board - appeal ground one concerned whether exclusion of appellant from proceedings by Ritchie C for presentation of respondent's evidentiary case constituted a denial of procedural fairness and/or was contrary to the requirements of s 11A of the Transport Appeal Boards Act - appellant contended that breach of s 11A alone warranted vitiation of first instance decision - proceedings before the TAB were for reinstatement of employment - appellant's employment terminated on basis of alleged inappropriate conduct towards another employee of respondent - held: requirements of procedural fairness governed proceedings before the TAB -content of procedural fairness requires regard being given to the statute and particular circumstances of matter - statutory construction - s 11A did not give appellant a statutory right to be present as contended by appellant - on its proper construction section merely identifies those who may appear or be a party to proceedings - respondent required to present case first pursuant to s 16(1) - apparent conflation of disciplinary and industrial proceedings under the Transport Appeal Boards Act so as to treat the appellant as if a respondent in proceedings - s 16(1) has effect of heightening necessity of applicant being present - requirements of procedural fairness not contracted by s 17 - question as to fairness or otherwise of exclusion of appellant when represented by legal counsel - authorities bearing upon the principles of procedural fairness - essential aspect of principle that a party to proceedings is entitled to be present is to ensure party has ability to contradict opponent's case - appellant shut out at direction of the TAB from hearing the viva voce evidence in chief of respondent's witnesses and giving instructions to counsel during cross-examination - ability of appellant to contest evidence of respondent constrained - no prevailing interest which warranted appellant's exclusion - only basis for exclusion that appellant might have received advantage by hearing respondent's evidence - no real advantage given appellant had respondent's written evidence given s 16(1) - any procedural unfairness which may have been suffered by respondent if appellant allowed to remain present outweighed, on balance, by unfairness suffered by appellant - presence of appellant during course of respondent's case only real opportunity for appellant to cross-examine, comment upon and controvert case brought against him - significant aspects of evidence going to mutuality of conduct and extent of appellant's conduct contested - limited provision made for counsel to consult with appellant during the course of evidence - unfair to suppose counsel could deal with those matters in absence of appellant - presence of appellant's counsel did not alter conclusion in circumstances of case - no waiver of requirements of procedural fairness by appellant's counsel - in the circumstances the procedure adopted by the TAB was a denial of procedural fairness - not possible to conclude that compliance with requirements of procedural fairness would have made no difference to decision reached by the TAB - first instance decision vitiated in the result - appeal ground two concerned the failure of the TAB to provide adequate reasons for its decision - particular issue as to weight given by the TAB in its decision to an incident known as the "Thai man incident" - incident critical to contest between parties and had potential to weigh upon question of whether appellant engaged in misconduct and the gravity of any misconduct - held: failure by the TAB to give reasons or adequate reasons in decision - appeal upheld - matter remitted to the TAB to be determined in nature of a retrial Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) Industrial Relations Act 1996 Industrial Relations Amendment (Public Sector Appeals) Act 2010 Migration Act 1958 (Cth) Public Sector Employment and Management Act 2002 Transport Administration (Staff) Regulation 2005 Transport Appeal Boards Act 1980 Cases Cited: Ainger v Coffs Harbour City Council [2005] NSWCA 424 Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 Australian Postal Commission v Hayes and Another [1989] FCA 176; (1989) 23 FCR 320 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Burwood Municipal Council v Harvey (1995) 86 LGERA 389 Byrne v RailCorp [2012] NSWTAB 6 Charnock v Dewings [1853] EngR 580; (1853) 3 C & K 378, 175 ER 597 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Eastman v The Queen (1997) 76 FCR 9 Escobar v Spindaleri (1986) 7 NSWLR 51 First Tier Tribunal (Tax Chamber) in Mobile Export 365 Ltd v Commissioners for HMRC [2010] UKFTT 367 Grimshaw v Dunbar [1953] 1 QB 408; [1953] 1 All ER 350 In the Marriage of D J and M Y Collins (1990)14 Fam LR 162 K & S Lake City Freighters Pty Ltd v Gordon and Gotch Ltd (1985) 157 CLR 309 Kesterson et al. v Jarrett et al. (Supreme Court of Georgia, United States of America, Case Number S11G05090, 18 June 2012) Kingscape Holdings Pty Ltd v Gary Kenneth Smith and Don Samuel Evill [2001] WAIRComm 3532 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Lawrence v The King [1933] AC 699 London Chartered Bank v Lavers (1855) 2 Legge 884 Mayes v Mayes [1971] 1 WLR 679; [1971] 2 All ER 397 McHardie and Danielson [1983] 2 NSWLR 733 MH6 v Mental Health Review Board (2009) 25 VR 382 Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW (2005) 145 FCR 523 Mobil Oil Australia Pty. Ltd. v Federal Commissioner of Taxation (1963) 113 CLR 475 Morton v Sydney Ferries Corporation [2009] NSWSC 341 Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120 Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R (On the Application of Elvington Park Ltd) v York Crown Court [2011] EWHC 2213 (Admin) R v Cornwell [1972] 2 NSWLR 1 R v Lee Kun [1916] 1 KB 337 Rail Corporation v Brown [2012] NSWIRComm 14 Rail Corporation of New South Wales v Brown [2012] NSWCA 296 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR Re Refugee Review Tribunal and Another; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 Saeed v Minister for Immigration and Citizenship [2010] HCA 23 Selfe v Isaacson [1859] EngR 144; (1859) 1 F & F 194, 175 ER 688 Stead v State Government Insurance Commission [1986] HCA 54; [1986] 161 CLR 141 Stonham v Speaker of the Legislative Assembly of New South Wales (No 2) 90 IR 334 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; [2007] 232 CLR 189 T. A. Miller Ltd. v Minister of Housing and Local Government [1968] 1 WLR 995 Thai v Commissioner of Taxation [1994] 53 FCR 252 Tomlinson v Tomlinson [1980] 1 WLR 322; [1980] 1 All ER 593 Fam Div VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 Weerappah v Nisselle [1999] VSC 249 X v NSW Department of Education and Training 89 IR 1 Category: Principal judgment Parties: Kevin Michael Byrne (Appellant) Rail Corporation of New South Wales (Respondent) Representation: J Murphy of counsel (Appellant) P Ginters of counsel (Respondent) Ellison Tillyard Callanan (Appellant) Henry Davis York Lawyers (Respondent) File Number(s): IRC 474 of 2012 Decision under appeal Citation: Byrne v RailCorp [2012] NSWTAB 6 Date of Decision: 2012-02-15 00:00:00 Before: Ritchie C File Number(s): TAB 1103 of 2011