COMMISSIONER OF CORRECTIVE SERVICES v WALKER and ORS

Court of Appeal (NSW)|2007-05-01|Before: Mason P, Santow JA, McColl JA, Coll JA

CITATION: COMMISSIONER OF CORRECTIVE SERVICES v WALKER and ORS [2007] NSWCA 213

JUDGMENT OF: Mason P at 1; Santow JA at 2; McColl JA at 48

CATCHWORDS: ADMINISTRATIVE LAW - Statutory Interpretation - "GREAT" appeals under s20 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) - entitlement to appeal under s20 and by reference to s21(1)(e) - competency of appeal when made outside 21 days mandated by s55 of the GREAT Act. - WORDS AND PHRASES - meaning of "the decision of the Tribunal in respect of an appeal" within s48(4) - was there a decision when the result of the Tribunal's determination but without its reasons was informally communicated in advance of the decision with reasons being formally provided.

LEGISLATION CITED: Government and Related Employees Appeal Tribunal Act 1980 (NSW) s20, s21, s48, s54, s55, Supreme Court Act 1970 s69

Ex parte Currie; Re Dempsey and Others (1969) 91 W.N. 34 CASES CITED: Ex parte Currie; Re Dempsey [1970] 1 NSWR 617 Metropolitan Water, Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720

COMMISSIONER OF CORRECTIVE SERVICES (Appellant) PARTIES: David Anthony WALKER (First Respondent) Shannon KAY (Second Respondent) Benjamin CLAPP (Third Respondent)

T ANDERSON (Appellant) COUNSEL: I TAYLOR (First Respondent) Submitting appearances (Second and Third Respondents)

SOLICITORS: NSW Department of Corrective Services (Appellant) W G McNally Jones Staff (First Respondent)

LOWER COURT JURISDICTION: Government & Related Employees Appeal Tribunal

LOWER COURT FILE NUMBER(S): GREAT PSP/303-304/06

1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40698/06 CA 40052/07 GREAT PSP/303-304/06

MASON P SANTOW JA McCOLL JA

16 AUGUST 2007 COMMISSIONER OF CORRECTIVE SERVICES v David Anthony WALKER and two Others Judgment 1 MASON P: I agree with Santow JA. 2 SANTOW JA: INTRODUCTION The Commissioner of Corrective Services appeals against an interlocutory decision by the Chair of the Government & Related Employees Appeal Tribunal ("the Tribunal") in favour of David Anthony Walker, the first respondent. The Tribunal decided, giving reasons, that it had jurisdiction to adjudicate a merits appeal brought by Mr Walker against the decision of the appellant appointing the second and third respondents to a vacant office as Senior Correctional Officer at Long Bay. 3 The challenged appeal to the Tribunal was brought invoking s20 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) ("the GREAT Act") as its basis. The appellant unsuccessfully argued before the Tribunal that Mr Walker was not entitled to appeal under s20 of the GREAT Act in respect of the appellant's decision relating to a vacant office, by reason of the application of s21(1)(e) of that Act, quoted below: " 21 Excluded circumstances (1) An employee is not entitled to appeal under section 20 in respect of the decision of an employer relating to a vacant office:

(a) if the appointment to the vacant office is not a permanent appointment, (b) if the vacant office is an office specified in Schedule 1, 2 or 3 to the Statutory and Other Offices Remuneration Act 1975, (c) if the vacant office is a Department Head position in the Public Service, (d) if the maximum salary applicable to the vacant office at the date of the decision of the employer exceeds: (i) except as provided in subparagraph (ii) - the amount equal to the maximum salary applicable to a clerk's position graded 12 in the Public Service, or (ii) where another amount is prescribed - that other amount, (e) unless the maximum salary applicable to the vacant office is greater than the salary paid, at the date of the decision of the employer, to the appellant in relation to the office held by the appellant at that date, ……" 4 The appeal to this Court was pursuant to a Notice of Appeal invoking s54 of the GREAT Act which relevantly provides: " 54 Appeal to Supreme Court on point of law

A person being: (a) an employer against whose decision an appeal is brought, …… may, subject to this Part, appeal to the Supreme Court against any decision of the Tribunal on a question of law." 5 Relevantly, s55 of the GREAT Act provides that "an appeal under s54 should be made within 21 days after the date of the Tribunal's decision on the question of law the subject of the appeal …". 6 Mr Walker brought a Notice of Motion dated 13 December 2006 seeking to dismiss the appeal to this Court as incompetent and to recover costs, giving as reasons for the application the following: " Reasons for Application - Requirement of s55(1) not met

The appeal is purportedly made pursuant to Part 5 of the Government and Related Employees Appeal Tribunal Act 1980 ("the GREAT Act").

Section 55(1) of the GREAT Act provides as follows: 55(1) An appeal under section 54 shall be made within 21 days after the date of the Tribunal's decision on the question of law the subject of the appeal and shall be made in accordance with the rules of the Supreme Court.

The GREAT Act defines "decision" at s48(4): 48(4) The decision of the Tribunal in respect of an appeal shall be in the form of an instrument in writing signed by the Senior Chairperson or Chairperson before whom the appeal was heard and shall include the reasons for the decision.

The Tribunal's decision, as defined in s48(4), was delivered on 31 October 2006 - Red Appeal Book 23-29.

The Notice of Appeal was filed on 30 October 2006, apparently based on verbal advice as to the intended decision of the Tribunal - Red Appeal Book 30-32.

The appeal was not made 'within 21 days after the date of the Tribunal's decision" as required by s55(1) and accordingly is incompetent." 7 This Court ruled in the appeal hearing that Mr Walker's Notice of Motion to dismiss the appeal to this Court for incompetency should be upheld, with reasons to be given later. What follows are the reasons why I consider the appeal to this Court was incompetent. 8 The appellant by Summons also sought to invoke in this Court orders in the nature of the prerogative writs of certiorari and prohibition to preclude the Tribunal from hearing or otherwise dealing with Mr Walker's own appeals to the Tribunal. It was common ground that such orders were available in a proper case to prevent the Tribunal from dealing with Mr Walker's appeal as a merits appeal to the Tribunal if the Tribunal lacked jurisdiction to entertain that appeal. That necessarily brought to bear whether s21(1)(e) of the GREAT Act was applicable in the circumstances. Mr Walker's appeal to the Tribunal depended on it applying rather than his appeal being precluded as constituting "excluded circumstances".

SALIENT FACTS 9 The salient facts are not in dispute and are set out below. 10 On 4 September 2006 Mr Walker, purporting to proceed under s20 of the GREAT Act, filed two Notices of Appeal in the Tribunal in respect of the decision of the Department (Commissioner) of Corrective Services' decision to appoint Ms Shannon Kay and Mr Benjamin Clapp (second and third respondents respectively) to the position of Senior Correctional Officer - Metropolitan Security Unit at Long Bay, this being "the vacant office" within ss20-21. I shall refer to these as "the Promotion Appeals". 11 The office held by Mr Walker at the date of the decision by the Appellant (11 July 2006) was Senior Correctional Officer, Surry Hills Cell Complex. 12 The maximum salary of the vacant office was $55,550 plus an incidental allowance of $3,632. That was the same salary as paid to Mr Walker at the date of the appellant's decision. 13 Mr Walker contended, however, that certain extra remuneration (in particular overtime allowances and nightshift penalty rates) was payable in respect of the vacant Long Bay office which was not featured as part of the remuneration for the Surry Hills office (Judgment of Tribunal Red, 25U-27F). 14 The only issue to be determined by the Tribunal was whether such extra remuneration comprised part of the "maximum salary applicable to the vacant office" under s 21(1)(e) of the GREAT Act. If it were so comprised, then Mr Walker was entitled to bring the Promotion Appeals and the Tribunal has jurisdiction to hear them. 15 On 11 October 2006 the Commissioner notified the Tribunal that the Commissioner wished to challenge the jurisdiction of the Tribunal to hear the Promotion Appeals on the basis that, pursuant to s21(1)(e) of the GREAT Act, Mr Walker was not entitled to appeal because, at the date of the decision to appoint Ms Kay and Mr Clapp to the vacant offices, Mr Walker was in receipt of the maximum salary applicable to those vacant offices. 16 On 25 October 2006 the Tribunal heard argument on what it described as "the preliminary question as to whether the Tribunal possesses jurisdiction to hear the appeal". 17 On 27 October 2006 Ms Elizabeth Ball, solicitor employed by the Commissioner received a phone call from an employee of the Tribunal, whose name was Michelle, who Ms Ball deposes, said words to the following effect: "The Tribunal has granted jurisdiction. The judgment can be picked up on Tuesday, 31 October 2006. The hearing on the merits will be on Tuesday 31 October 2006" (see affidavit of Ms Ball filed 18 January 2007 at para 4). 18 On 30 October 2006 matter number CA 40698/06 was commenced by the Commissioner filing the Notice of Appeal in this Court. 19 On 31 October 2006 the Senior Chairperson of the Tribunal, Ms P A Lynch, handed down a written decision dated that same day by which the Tribunal determined: "The respondent's application to strike out the appellant's appeal is disallowed" (Red, 23-29), such decision being advised as available to be picked up at the desk.

DISPOSITION 20 I deal below with: (a) the competency of the Commissioner's purported appeal under s54 of the Act against the Tribunal's decision that it had jurisdiction to hear and determine Mr Walker's appeals to the Tribunal against decisions of the Commissioner to appoint Messrs Kay and Clapp to a vacant office as Senior Correctional Officer at Long Bay in each case; and (b) judicial review in relation to the decision of the Tribunal that it had jurisdiction to hear the appeals of Mr Walker against the appointment of Messrs Kay and Clapp to the vacant office as Senior Correctional Officer, by recourse to orders in the nature of prerogative writs.

Competency of Appeal 21 I deal with the competency question first. The Court has already concluded that the relevant appeals were incompetent so that what follows represents my reasons for that conclusion. 22 At one level the reasons can be stated in the form of the simple syllogism that: (i) an appeal to the Supreme Court against any decision of the Tribunal on a question of law must under s55 of the GREAT Act be made within 21 days after the date of the Tribunal's decision on the question of law the subject of the appeal; (ii) the present proceedings purported to be such an appeal but failed to be an appeal made within the 21 days after the date of the Tribunal's decision on the relevant question of law the subject of the appeal but was instead purportedly made prior to the commencement of the 21 days; so therefore (iii) the purported appeal to this Court thus failed to be an appeal under the relevant provisions of the GREAT Act and so was incompetent. 23 The validity of that reasoning depends upon when the decision of the Tribunal was actually made for the 21 days to start to run. 24 The written reasons bore on their front cover the description "[D]ate of decision" with the stated date being "31 October 2006". The hearing had taken place on 25 October 2006 before a Senior Chairperson. Submissions were made and judgment reserved. It is not disputed the relevant "sitting" of the Tribunal was what the GREAT Act described as a "formal" one, as distinct from an "informal" one (see s34, s35 and also s38 dealing with the provisions relating to formal sittings), with written reasons being given. 25 The decision of the Tribunal in respect of the appeal to it was in the form of an instrument in writing signed by the Senior Chairperson and included reasons for the decision, as contemplated by s48 of the GREAT Act and in particular subs(4) thereof, quoted below: " 48 Decisions with respect to appeals (1) The Tribunal, in relation to an appeal under section 20, may decide to allow or disallow the appeal. (2) The Tribunal, in relation to an appeal under section 24, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (2A) Without limiting the generality of subsection (2), if in relation to an appeal under section 24 it appears to the Tribunal that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Tribunal:

(a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer.

(3) The decision of the Tribunal in respect of an appeal shall, except as provided by Part 5, be final and shall be given effect to by the employer against whose decision the appeal was brought. (4) The decision of the Tribunal in respect of an appeal shall be in the form of an instrument in writing signed by the Senior Chairperson or Chairperson before whom the appeal was heard and shall include the reasons for the decision." 26 It will be apparent from the language of s48 that what the Tribunal did was to disallow the appeal, within s48(2) this being "the decision of the Tribunal in respect of an appeal" within s48(4). 27 The affidavit from Ms Ball describes the events that preceded that decision. There was informal communication from someone purporting to be employed at the Tribunal, clearly not the Chairperson, who phoned Ms Ball as the solicitor employed in the Employment and Administrative Law Branch of the Department of Corrective Services. The person identifying herself only as Michelle said words to the effect: "The Tribunal had granted jurisdiction. The judgment can be picked up on Tuesday, 31 October 2006. The hearing on the merits will be on Tuesday 31 October 2006"; see para 4 of Ms Ball's affidavit of 17 January 2007 at Orange, 40. 28 In s48(4), "the decision of the Tribunal" undoubtedly includes the statement of the actual result, namely that "the respondent's application to strike out the appellant's appeal is disallowed". But s48(4) goes on to provide that the decision is to be "in the form of an instrument in writing" signed by the relevant Chairperson hearing the appeal and, importantly "shall include the reasons for the decision". There was thus no "decision of the Tribunal" constituted by the earlier informal oral communication. 29 "The decision of the Tribunal" only came into being when made available in the form of the written instrument dated and signed on 31 October 2006 containing both result and reasons. It was this which constituted "the decision of the Tribunal" within s48(4). 30 The appellant then sought to argue that a decision with respect to jurisdiction to hear an appeal was not a "decision with respect to the appeal" within s48(2). Rather it was a decision on a question anterior to it, namely whether jurisdiction should be assumed or not. 31 I do not accept that argument. This was a decision of a Tribunal as to whether it should or should not entertain the appellant's appeal, by reference to whether the appeal to the Tribunal was competent. Though it was essentially a decision as to jurisdiction, that to my mind is no less a decision of the Tribunal "in respect of an appeal" as would be a merits decision in relation to that appeal once jurisdiction was assumed. 32 It necessarily follows that whatever was said informally, there was never any delivery of the Tribunal's formal determination until the written reasons were handed down on 31 October 2006. 33 I would reach the same conclusion even were it the case that this was not a decision of the Tribunal "in respect of an appeal" within s48(4). To do so, I would draw on the analogy of the position in relation to inferior courts. Their jurisdiction is determined by the provisions of any relevant legislation insofar as that legislation purports to prescribe a particular method for the publication of the Tribunal's written opinions. The validity of the inferior court's judgment may however depend upon strict compliance with those provisions: Ex parte Currie; Re Dempsey [1970] 1 NSWR 617. 34 Here, if one assumes that s48(4) were not applicable, it is true that it could not be said that the Act lays down any specific mode or method for the publication of a written determination. Nonetheless, prima facie a judgment or indeed any determination of an inferior court or tribunal, should, with limited exceptions, occur in open court and with a degree of formality. That minimum formality would not be satisfied by a telephone call of some person identified only as "Michelle" who said she was employed at the Tribunal. There is no suggestion in the evidence that she was specifically authorised by the Chairperson of the Tribunal so to communicate on behalf of the Chairperson and Tribunal in relation to its impending decision. 35 This approach is consistent with that in Ex parte Currie (supra) as also an earlier decision by the same name Ex parte Currie; Re Dempsey and Others (1969) 91 W.N. 34 at 37. In the latter, in a joint judgment the Court upheld the submission that two out of three magistrates, though a majority, did not have committed to them the curial power to give judgment. While this applied to the Licensing Court, it emphasises the importance of adhering to any statutory requirement and to there being a minimum degree of formality required even absent statutory requirement to that effect. 36 Accordingly I am satisfied that what occurred here, whether a decision of the Tribunal within s48(4) or not, did not give rise to a decision of the Tribunal until after 27 October 2006, namely on 31 October 2006 when the written reasons were made available. Hence the purported appeal from that decision was incompetent as it failed to conform to the requirements of the Act for the time period to lodge an appeal under s55. 37 This conclusion is strengthened by the oppressive result that would follow were the time of earlier informal communication of an anticipated decision to be the point of time when the 21 days starts to run to lodge an appeal to this Court. This would mean that a prospective appellant to this Court would be forced to determine whether or not to appeal in advance of receiving the reasons which might be critical to determining whether or not to appeal.

Judicial Review 38 That still, however, leaves the possibility of judicial review in this Court by orders in the nature of prerogative writs; in particular by an order in the nature of certiorari or prohibition whereby, if made, the Tribunal's decision would be quashed or otherwise the Tribunal prohibited from hearing or otherwise dealing with the purported appeals by Mr Walker on their merits. I shall, for present purposes, assume recourse to an order in the nature of prohibition, so avoiding any issue as to whether there was an error of law on the face of the record as would allow an order in the nature of certiorari; see s69 of the Supreme Court Act 1970. 39 I have earlier referred to what s21 defines as "excluded circumstances" being, relevantly, those provided in s21(1)(e), quoted below: "(e) Unless the maximum salary applicable to the vacant office is greater than the salary paid, at the date of the decision of the employer, to the appellant in relation to the office held by the appellant at that date." 40 In other words, the employee is not entitled to appeal under s20 in respect of the decision of an employer relating to a vacant office where the circumstances fit the description of subs (e) quoted above. 41 It was not in dispute that the maximum salary, putting aside overtime and site allowance in the form of nightshift penalty rates was identical for the vacant office as for the office occupied by Mr Walker. That is to say, with those put to one side, the maximum salary was $55,550 plus an incidental allowance of $3,632 in each case; see para 4 of the Tribunal's reasons. 42 It is not necessary to determine whether an overtime allowance, being likely to arise more regularly in relation to the vacant office as compared to the office occupied by Mr Walker at Surry Hills, could constitute salary for purposes of s21(1)(e). What is clear is that: (a) what was described as " the B Watch - nightshift penalty rates " was to be paid to officers in respect to the vacant office at the Metropolitan Security Unit Long Bay; and (b) that remuneration would not have been received by Mr Walker in relation to his office at Surry Hills Cell Complex at the relevant date. 43 Paras 9 and 10 of the Tribunal decision, quoted below, make this clear: "9. The appellant contends that the daily roster for the Metropolitan Security Unit indicates that a Senior Correctional Officer Post exists at the B Watch (nightshift) - boom gate. 'It is apparent that an officer appointed to the vacant office will earn nightshift penalty rates. No Senior Correctional Officer posts exist on B Watch (nightshift) at Surry Hills Cell Complex.' (Exhibit 3)

It seems that the overtime allowance and the B Watch - nightshift penalty rates are to be paid to officers in respect of the vacant office at Metropolitan Security Unit, Long Bay. It is not remuneration that would have been received by the appellant in relation to his office at Surry Hills Cell Complex at 11 July 2006. In this respect there is a differential between the salary and the extra remuneration payable in relation to the vacant position and the salary payable in respect of the position held by the appellant." 44 The reasons of the Tribunal correctly note that the Commission made no submissions in regard to that matter; see para 12 of the reasons. Clearly the Commission had the onus of establishing that the exclusion was applicable and failed to do so. 45 It was not necessary for there to be any quantification of the additional B Watch (nightshift) penalty rates, once it be accepted that this was an increment to the amount applicable by way of salary for the vacant office and being in the nature of salary. That much is apparent. There was certainly no evidence to suggest that overtime paid at Surry Hills, if such were to be taken into account, was such as would render the exclusion applicable. It was not able to be submitted on the evidence that the overtime amount for Mr Walker's present position would have exceeded the amount of overtime applicable to the vacant office aggregated to the B Watch (nightshift) penalty rates. 46 It is not necessary to consider in any detail Metropolitan Water, Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720. I simply note that the expression salary paid "in relation to the office held" suggests a wider ambit to what constitutes salary than would be simply the salary of an office. For example it picks up an allowance for a skill which the employee possesses which constitutes part of the regular remuneration which he or she receives whilst in office.

OVERALL CONCLUSION 47 I consider that this appeal should be dismissed and the appellant should pay the respondent's costs. I propose orders as follows: (1) Appeal dismissed including appellant's summons dated 24 January 2007. (2) Appellant to pay respondent's costs of the appeal including in relation to the appellant's summons. 48 McCOLL JA: I agree with Santow JA. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Government and Related Employees Appeal Tribunal Act 1980(NSW)

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