Greig v Director General, Department of Education and Communities

Consideration 11Section 197B(1) of the IR Act provides: (1) A party to proceedings under Part 7 of Chapter 2 may, subject to this Part, appeal to the Commission in Court Session against any decision of the Commission in the proceedings on a question of law. 12The foregoing provision is the result of an amendment to the IR Act by the Industrial Relations Amendment (Industrial Courts) Act 2013 ("the Amendment Act"). The amendment took effect from 31 October 2013. Prior to the amendment s 197B(1) read: (1) A party to proceedings under Part 7 of Chapter 2 may, subject to this Part, appeal to the Full Bench of the Commission in Court Session against any decision of the Commission in the proceedings on a question of law. 13Sections 191(1) and (2) of the IR Act provide: (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. 14The foregoing provisions refer to proceedings before a Full Bench. As a consequence of the amendments to the IR Act by the Amendment Act the appeal under s 197B(1) is to a single member of the Commission in Court Session, that is, the Industrial Court: see s 151A of the IR Act. That this is so is confirmed by the second reading speech in respect of the Amendment Act (Hansard, Legislative Council, 30 October 2013) where it was stated: [T]he amendments would enable proceedings for contempt, appeals from the Local Court, and promotional and disciplinary appeals to be heard by a single Industrial Court judge sitting alone. 15The question arises, however, whether the provisions of Pt 7 of Ch 4 of the IR Act dealing with appeals to the Full Bench apply to appeals to a single member of the Industrial Court. More particularly in these proceedings, do the provisions of ss 191(1) and 191(2) apply? 16Because the parties in their submissions did not initially address this question, the Court directed the parties to file further submissions on it. 17The respondent contended that applying the rules of statutory interpretation, the provisions of Pt 7 of Ch 4 apply to proceedings under s 197B except where such matters are directly inconsistent with the terms of s 197B: see, for example, s 192(1). The appellant provided a short written submission, but indicated he felt "in many ways inadequately qualified to respond to such a technical issue..." Nevertheless, the appellant attempted in a broad and general way to address the issue. He appeared to submit the provision of Pt 7 of Ch 4 applied. 18The issue does not lend itself to an easy or obvious solution. On the one hand, if it were held that the provisions of Pt 7 of Ch 4 do not apply to an appeal under s 197B then the IR Act would provide no statutory instruction as to such matters as the time and procedure for making appeals, the power to stay a decision appealed against or whether leave to appeal was required. On the other hand, it is difficult to see how one could construe the reference to "Full Bench" in ss 191(1) and 191(2) as referring to a single member of the Court. A Full Bench of the Commission "consists of at least 3 members who are constituted as a Full Bench by the President for the purposes of a proceeding": s 156(1) of the IR Act. The Court cannot be constituted as a Full Bench, but only by one judicial member: see ss 151 and 155(1). It is arguable it would be giving "Full Bench" a construction strained beyond breaking point to regard it as referring to a single member of the Court. 19Notwithstanding the further submissions that have been filed in relation to this issue I am not satisfied I have received full argument on the matter. That is not to be critical of the appellant. As he conceded, he is a self-represented litigant and not a lawyer and the issue is not without some legal complexity. 20In any event, I do not need to decide the issue because whether or not the provisions of Pt 7 of Ch 4 apply to this appeal no proper basis has been made out upon which the Court should receive the new evidence proposed by the appellant. 21It must be kept steadily in mind that Mr Greig's appeal is an appeal under s 197B of the IR Act. In Rail Corporation New South Wales v Brown [2012] NSWIRComm 14 the Full Bench had to consider s 23A of the Transport Appeals Board Act 1980. Section 23A(1) provided: A party to a promotion or disciplinary appeal may, subject to sub-section (3), appeal to the Full Bench of the Commission in Court Session against any decision of a Board in the proceedings on a question of law. 22Section 197A(1) of the IR Act and s 23A(1) of the Transport Appeals Board Act may be regarded as relevantly the same. At [19]-[21] the Full Bench stated: [19]The appeal to the Industrial Court pursuant to s 23A of the TAB Act is in almost identical terms to the appeal to the Supreme Court under s 54 of the GREAT Act. This is not surprising as both pieces of legislation deal with promotion and disciplinary appeal rights of public sector employees. The appeal provided by s 23A is, therefore, to be distinguished from the type of appeal available under s 142N of the District Court Act 1973 ("DC Act") as highlighted in the judgment of Commissioner of Police v Dalziel [2011] NSWCA 290. In that case, however, the Court of Appeal noted the distinction between a question of law and a question of fact in circumstances where s 142N provided to an aggrieved party an appeal "in point of law." The judgment of Handley AJA in particular focused upon the distinction between errors of law and errors of fact noting that the central issue in the appeal was whether the conclusions of the judge below evidenced any error "in point of law" - a more general right of appeal. Although the DC Act itself confined the right of appeal, as acknowledged by Basten JA at [17], that is not the same type of appeal as is available under s 23A of the TAB Act. [20] An appeal under s 23A is not an exercise involving a search for any errors in point of law that arise in the proceedings but requires attention to a more precise issue, requiring the identification of a decision of the TAB in the proceedings "on a question of law." In this respect the judgment of Basten JA in Lambert at [70] is of particular relevance where his Honour quotes from the judgment of the Court in Grygiel v Baine [2005] NSWCA 218 at [29] citing the judgment of Bryson JA in Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [38]-[58] that the terms of the Act there under consideration required "that an appellant must identify with precision a decision of the Tribunal with respect to a matter of law, in order to invoke the jurisdiction of the Court." We would respectfully agree with that statement, as relevant to the operation of s 23A. [21] The cases considered above dealing with provisions similar to s 23A provide the following guidance in identifying the scope of the appeal available under the Act: (a) an appeal from a decision on a question of law is a more limited appeal than that available on a question of law or involving a question of law; (b) it is not sufficient, therefore, to merely establish that an error of law has occurred in the course of the appeal; (c) while it must be shown that the Tribunal has made a decision on a question of law that is challenged on appeal, it is not necessary for the Tribunal to have, itself, expressly identified that question. It will be sufficient if the appeal identifies any decision of the Tribunal that is a decision on a question of law. Thus, where the Tribunal reaches a conclusion with respect to some matter that requires for its determination the identification of a relevant matter of law and error is alleged with respect to that matter of law, the jurisdiction of this Court under s 23A is invoked; (d) the appellant, nevertheless, is required to identify with some precision the decision of the Tribunal on a matter of law in order to invoke the jurisdiction of the Court under s 23A; (e) where the questions raised on appeal involve an assessment of the proper scope of the Tribunal's power and jurisdiction, there is an implied decision on a question of law. 23The decision in Brown was overturned on appeal to the Court of Appeal (Rail Corporation of New South Wales v Brown [2012] NSWCA 296). However, nothing in the Court of Appeal's decision affects the validity of what the Full Bench stated at [19]-[21] of its decision. 24Thus, an overarching consideration is that the proposed new evidence must be relevant to the Court's task under s 197B, which is to determine whether there was a decision on a question of law in respect of which error occurred. The Court is not concerned with facts (except for instance, if there was no evidence to support a factual finding or where relevant factual findings are not made by the tribunal, which may amount to relevant error) or the merits of the case. Therefore, it would need to be shown that the new evidence was relevant to the matter the Court is required to determine, that is, whether the tribunal erred in making a decision on a question of law. 25The reference by the appellant to Attachment A to his affidavit would, on one view, appear to be an attempt to show that his transfer was part of the disciplinary measures imposed by the respondent. On the evidence Newall C found it was not (I note that a decision to transfer is not an appealable decision (see ss 91, 97(1) and 98(1) of the IR Act) and could not be the subject of appeal before the Commissioner). 26Commissioner Newall's finding that the appellant was not transferred as part of any disciplinary action taken against him was largely based on the evidence of Mr Kevin Schipp who stated that the transfer was not discipline related, but arose out of the fact that, once Mr Greig had been demoted, there was no vacancy at Monaro High School for a teacher. I am unable to see how the Commissioner's decision in this respect amounted to a decision on a question of law. It seems to me it was wholly a question of fact. 27The appellant appears to further contend, however, the letter in Attachment A is now relevant in light of Attachment C indicating a risk to Mr Greig's mental health if he continues in a distant education teaching role, which is the role he claims he was transferred into as part of the disciplinary measures taken against him. He submitted that: The placement of the appellant in a Distance Education position an (sic) its resultant effect is well beyond what is allowed in DEC guidelines to discipline a teacher. Any transfer under the DEC guidelines should have been to a face to face classroom teaching position. 28I do not know what guidelines the appellant is referring to. I do note that s 93B(1)(c) of the Teaching Service Act 1980 defines disciplinary action as relevantly including "reduction of the officer's salary or demotion to a lower position in the Teaching Service". The provision makes no distinction between classroom teaching and distance education teaching. 29The appellant's contention then, as I understand it, is that Attachment C should be received in evidence on the appeal because it shows the harm caused by the transfer, such transfer being an aspect of the disciplinary action taken against him as evidenced by Attachment A, resulting in unfairness. 30It must follow that not being independently admissible as I have earlier found, the letter in Attachment A could only be relevant if Attachment C is to be admitted as evidence in the appeal proceedings. However, Attachment C could only be evidence of the appellant's mental health post the decision of Newall C. It has nothing to do with any alleged error made by the Commissioner in connection with a decision by him on a question of law. No grounds exist for the Court to receive Attachment C and consequently none exist in respect of Attachment A. 31In relation to Attachment B - the chain of emails - the point seems to be that Mr Greig was told he was being transferred to a classroom teacher position, but subsequently found his role was to be that of distance education teaching. 32I am unable to see how the information in Attachment B is relevant to any decision of Newall C on a question of law. The appellant failed to show how this was so. 33In written submissions filed in the proceedings before Newall C the only relevant reference made by the appellant to the distance education role was in the following terms: I would ask that if the decision to demote me is overturned that the decision to transfer is also overturned. If the decision does not go for me then I ask that a transfer be negotiated where I am teaching Drama and English in a classroom. My current position at Karabar Distance Ed is a sedentary desk job. It is unhealthy and not suited to me (sic) skills truing (sic) ir (sic) experience. 34Newall C had no power to order the respondent to negotiate on the terms proposed by the appellant. 35The appellant makes the same argument about Attachment B now being relevant as he did regarding Attachment A, namely, a relevant connection with Attachment C. The same response applies: Attachment C could have no bearing on a decision by Newall C on a question of law given the letter that is Attachment C was provided to Mr Greig in February 2014. That is, nearly three months after Newall C handed down his decision. As Attachment C has no relevance, neither could Attachment B have any relevance. 36Attachments D and E concern the production by the respondent of backup tapes. Apparently, the appellant had a summons for production issued seeking the backup tapes. Production was declined on the basis of the respondent's belief the request was a fishing expedition and oppressive given the extraordinary cost of meeting the request. If the appellant considered the backup tapes were essential for his case he could have sought appropriate orders from the Commission. I am not aware of any attempt by the appellant to press for production of the backup tapes before the Commission. 37Moreover, the appellant failed to show how the evidence of the backup tapes was such that it was relevant to the Court's task of determining whether the Commissioner erred in making a decision on a question of law. 38Attachment F is an extract from the Teachers Handbook. The appellant submitted that Attachment F "was discussed in the cross-examination of Kevin Schipp". Further, that it "was also referenced by the Appellant in his final submission, but for reasons that are not made clear was not referenced and appears to have been ignored in the findings of the Commissioner." The appellant submitted it was not his responsibility to tender Attachment F, but rather the respondent's responsibility. 39If the appellant wished to rely on the Teachers Handbook the onus fell on him to tender it into evidence. It would have been open to the appellant to use Attachment F at the trial and it seems that in some way it was although apparently the document was not tendered. The relevance of Attachment F was said to be Mr Greig's belief that: [I]t is important for the official policy of the DEC to be part of this case. I had assumed it would have been automatically incorporated into the hearing. I ask that it is now included. 40That submission provides no basis for it to be received by the Court. Not only was Attachment F available to be used by the appellant at the trial, but also it has not been shown that the extract is relevant to any asserted error in respect of a decision on a question of law.

Orders 41The Court makes the following orders: (1)The appellant's notice of motion is dismissed. (2)Costs are reserved.

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. Decision last updated: 27 May 2014