Elleray v Rail Corporation of New South Wales [2014] NSWIRComm 45

Industrial Relations Commission New South Wales Medium Neutral Citation: Elleray v Rail Corporation of New South Wales [2014] NSWIRComm 45 Hearing dates: 26 May 2014; 27 May, 10 and 12 June (written submissions) Decision date: 28 August 2014 Jurisdiction: Industrial Court of NSW Before: Walton J, President Decision: (1) To the extent required, leave to appeal is granted. (2) The appeal is dismissed. (3) The appellant shall pay the respondent's costs as agreed or, if disputed, as assessed. Catchwords: APPEAL - leave to appeal - to the extent required, leave to appeal granted - Rail Corporation employee dismissed - appeal to Transport Appeal Boards - remitter after earlier appeal from Board allowed - appeal to Board in remitted appeal dismissed - appeal against second decision of the Board to Court - s 23A Transport Appeal Boards Act 1980 - s 23A appeal must be against a decision of the Board on a question of law - sole ground of appeal procedural fairness - denial of procedural fairness is an error of law but not a decision on a question of law - applied Totalisator Agency Board v Casey and Director-General, Dept of Ageing, Disability and Home Care v Lambert - appeal not within scope of the limited statutory right to appeal - brief observations on procedural unfairness ground - requirements of procedural fairness governed proceedings before the TAB - procedural fairness includes opportunity to be heard - content of procedural fairness varies depending on statute and circumstances - given the requirements of the Transport Appeal Boards Act 1980 and the Civil Procedural Act 2005 the procedure adopted by the Board was not a denial of procedural fairness in the circumstances of the remitter - appeal dismissed - costs ordered. Legislation Cited: Civil Procedure Act 2005 Industrial Relations Act 1996 Industrial Relations Amendment (Industrial Court) Act 2013 Transport Administration (Staff) Regulation 2005 Transport Appeal Boards Act 1980 Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Byrne v Rail Corporation of NSW [2012] NSWIRComm 117 Clisdell v Commissioner of Police (1993) 31 NSWLR 555 Coutts v Close [2014] FCA 19 David John Elleray and Rail Corporation of New South Wales ("RailCorp") [2013] NSWTAB 3 Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Elleray v Rail Corporation New South Wales Escobar v Spindaleri (1986) 7 NSWLR 51 Hutchinson v Roads and Traffic Authority and Anor [2000] NSWCA 332 International Fashion Group Pty Ltd v Jonco Imports Pty Ltd [2014] NSWSC 60 Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 Kassem v Colonial Mutual General Insurance Company Limited [2001] NSWCA 38 King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Lee v Energy Australia (No 4) [2011] NSWIRComm 120 Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79 Newton v Ellis [2012] NSWCA 106 Rail Corporation of New South Wales v Elleray [2013] NSWIRComm 86 Rail Corporation of NSW v Brown [2012] NSWIRComm 14 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1 Re Refugee Review Tribunal and Another; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 Russell v Duke of Norfolk (1949) 1 All ER 109 Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40 Strangas Building Contractors v Lim [2012] NSWDC 72; (2012) 14 DCLR(NSW) 222 Totalisator Agency Board v Casey (1994) 54 IR 354 Category: Principal judgment Parties: David John Elleray (Appellant) Rail Corporation of New South Wales (Respondent) Representation: P F Doyle of counsel (Appellant) N L Sharp of counsel (Respondent) John Stonham & Co Lawyers (Appellant) Marque Lawyers (Respondent) File Number(s): IRC 6 of 2014 Decision under appeal Citation: Elleray v Rail Corporation of New South Wales [2013] NSWTAB 7 Date of Decision: 2013-12-16 00:00:00 Before: Newall C File Number(s): TAB 255 of 2012