Marroun v State Transit Authority [2016] NSWSC 1830

Supreme Court New South Wales

Medium Neutral Citation: Marroun v State Transit Authority [2016] NSWSC 1830 Hearing dates: 20 July 2016 (Supplementary written submissions received from the respondent 2 and 16 August and from the appellant 12 August 2016) Date of orders: 15 December 2016 Decision date: 15 December 2016 Before: Walton J Decision: The Court orders: 1) The appeal is dismissed; 2) The appellant shall pay the respondent's costs of and incidental to the proceedings, as agreed or assessed; 3) Leave is reserved to either party to apply for a different or special order for costs, notwithstanding the terms of Order 2 above. Such an application must be made on or before 27 January 2017 and accompanied by submissions in support of the application. The application and submission in support shall be no longer than 10 pages and be accompanied, over and above the 10 pages, by any document, not otherwise in evidence, upon which the party relies. Any party affected by any such application shall have 14 days from the filing and service of such application (and accompanying submission in support) in which to respond by a submission of not more than 10 pages which, again, over and above 10 pages, may attach any further documents not otherwise in evidence upon which it relies. Catchwords: APPEAL - public sector disciplinary appeal under Pt 7 of Ch 2 of the Industrial Relations Act 1996 in this appeal – statutory scheme for disciplinary appeals – presentation of cases in disciplinary appeal – legal burden – evidentiary burden– principles for appeal under s 197B – requirements for notice of appeal – need to state with precision the decisions on questions of law under challenge – limited recourse to factual background – limited appeal – whether grounds of appeal conform with statutory scope for appeal – opportunity to amend not taken – enlargement of grounds in written submissions on argument – validity of delegation – s 163(3) of the Act – civil proceedings – proof of negative – presumption of regularity – Transport Administration Act 1988 – Transport Service – protective jurisdiction – procedural fairness – no evidence ground – insufficient evidence ground – application of Briginshaw rule – exercise of discretion below – neither grounds of appeal nor extended contentions in relation to those grounds made out – judgment reserved in matter before proclamation date for commencement Industrial Relations Amendment (Industrial Court) Act 2016 – proceedings continued in the Supreme Court of NSW for determination by the Industrial Relations Amendment (Industrial Court) Act 2016 – judgment delivered in Supreme Court – appeal dismissed – leave re costs Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Impounding Act 1993 (NSW) Industrial Relations Act 1996 (NSW) Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) Transport Administration Act 1988 (NSW) Transport Administration (Staff) Regulation 2012 (NSW) Uniform Civil Procedure Rules 2005 Cases Cited: Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Leave Payments Corporation (1985) 1 NSWLR 561 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Douglas v NSW Land and Housing Corporation & Anor [2008] NSWCA 315 Elleray v Rail Corporation of New South Wales (2014) 86 NSWLR 326; [2014] NSWIRComm 45 Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 16 Grygiel v Baine [2005] NSWCA 218 Gurnett v Macquarie Stevedoring Co Pty Ltd (No. 2) (1956) 95 CLR 106 Haritos v Federal Commissioner of Taxation (2105) 233 FCR 315; [2015] FCAFC 92 House v R (1936) 55 CLR 499; [1936] HCA 40 Hunter Quarries Pty Ltd v Morrison (No 4) [2016] NSWIC 4 Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) CLR 390; [2010] HCA 32 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 Marroun v State Transit Authority [2016] NSWIRComm 1003 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66 Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69 R v JS (2007) 230 FLR 276; [2007] NSWCCA 272 Rail Corporation of New South Wales v Brown(2012) 219 IR 37; [2012] NSWIRComm 14 Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 Scicluna v New South Wales Land and Housing Corporation (2008) 72 NSWLR 674; [2008] NSWCA 277 Suvaal v Cessnock City Council (2003) 200 ALR 1; [2003] HCA 41 Tanwar Enterprises Pty Ltd v Inspector Raymond Welsh (No 3) (2015) 90 NSWLR 199; [2015] NSWIC 8 Category: Principal judgment Parties: Jamal Marroun (Appellant) State Transit Authority (Respondent) Representation: Counsel: E W Young (Appellant) K Edwards (Respondent)