The Secretary of the Department of Education, acting in their capacity as... [2025] NSWIRComm 1009 | Case summary

Industrial Relations Commission (NSW)|2025-03-21|Before: O'Connor J

These proceedings involve two different entities of the NSW State Government, to which the guidelines contained in the memorandum "M1997-26 Litigation Involving Government Authorities" ("the Guidelines") apply. The Guidelines are based on the general principle that litigation between government authorities is undesirable and should be avoided whenever possible. They further stipulate that the conduct of such proceedings should be consistent with model litigant obligations, with costs to the public purse kept to a minimum and the Court's time spent on the matter minimised. These are sound principles and otherwise consistent with the parties' obligations as model litigants.
Twice during these proceedings, the Commission has been required to adjourn proceedings due to late applications by the parties concerning interlocutory matters. These delays have resulted in a postponement of the ultimate resolution of the proceedings, as well as increased costs for the parties and a waste of the Commission's time and resources. These are costs incurred by the public purse. In addition, the Commission was required to list the matter the day before the first hearing day (adjourned to allow the Preliminary Issues to be determined) to resolve an application for a witness to appear virtually, due to SafeWork's failure to respond to correspondence from the Registry within the requested timeframe on its position with respect to the application. If it is indeed necessary for the parties to litigate this matter, having exhausted the processes outlined in the Guidelines to avoid this, it is expected that the parties will take all reasonable steps to conduct the proceedings efficiently and in accordance with their model litigant obligations.

27 March 2025 - Typographical amendments to the decision at [20], [39], [47], and [52].

[1] [6] of the Department's Outline of Submissions filed 6 December 2024 ("DOS")

[3] see [12]-[25] of the Department's Outline of Submission in Reply filed 12 February 2025 ("DOSR").

[4] PCBU, meaning "person conducting a business or undertaking" as defined by s 5 of the WHS Act.

[6] [70] of SafeWork's Outline of Submissions filed 24 January 2025 ("SOS").

Personal Information Protection Act 1998

Australian Wine and Brandy Corporations Act 1980(Cth)

Health and Safety Act 2011

Wine and Brandy Corporations Act 1980

Commissioner of Police, New South Wales Police Force v Fine (2014) 87 NSWLR 1; [2014] NSWCA 327

Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877; (2000) 32 AAR 169

Henroth Investments Pty Ltd v Sydney North Planning Panel [2019] NSWCA 68; (2019) 239 LGERA 304

Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 422; [2008] VSCA 45

Mahenthirarasa v State Rail Authority (2008) 72 NSWLR 273; [2008] NSWCA 201

Re New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 12 ALD 1; [1987] AATA 151

Re Tascone and Australian Community Pharmacy Authority [2011] AATA 724; (2011) 59 AAR 376

Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association [2022] NSWSC 1178; (2022) 320 IR 249

The Queen v The Australian Broadcasting Tribunal and Others; Ex parte Hardiman and Others (1980) 144 CLR 13; [1980] HCA 13

TXU Electricity Ltd v Office of the Regulator-General (2001) 3 VR 93; [2001] VSC 4

XX v Attorney General of New South Wales [2011] NSWSC 658

"Whilst his Honour encouraged representatives of a decision-maker in future cases to play an active role as a party in cases where the only parties before the Tribunal were the applicant for review and the decision-maker, it is plain from his Honour's observations, read in their entirety, that the situation would be different where there were other parties before the Tribunal who it could be expected would adopt the role of contradictor, and who could be expected to add whatever evidence was necessary to the "T documents" to fully inform the Tribunal on relevant matters. That distinction was drawn by Brennan J in Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666 at 681-682. Mansfield J in Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Another [1998] FCA 3; (1998) 152 ALR 182 at 207 said that the role to be fulfilled by a decision-maker where that decision is under review is a question to be decided in the circumstances of each case and in the context of the legislation then under consideration." (emphasis added)

(2019) 239 LGERA 304

The Secretary of the Department of Education, acting in their capacity as such v SafeWork NSW [2025] NSWIRComm 1009

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