[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
McCOLL JA: Jason Wattie is a former Senior Correctional Officer with Corrective Services NSW. He worked in that Service from 11 April 1994. On 13 May 2016 he was dismissed from that employment as a result of three assaults he committed against three inmates on 13 September 2014, 19 December 2014 and 29 December 2014 respectively. Prior to these events, he had not been the subject of disciplinary investigation or action.
Mr Wattie was successful in an application for reinstatement to his employment in unfair dismissal proceedings brought against the respondent, the Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (the Secretary), before Commissioner Murphy in the Industrial Relations Commission New South Wales. [1] On 11 October 2016 the Commissioner held that while his dismissal was neither unjust nor unreasonable, in all the circumstances it was harsh. [2] However he also held that, based on Mr Wattie's inexcusable misconduct, he should not be paid any back pay for the period from the time of his dismissal until the date of effect of the order for reinstatement.
The Secretary was unsuccessful on 28 February 2017 in proceedings taken before the Full Bench of the IRC to seek leave to appeal against the reinstatement order. Pending the hearing of that application, the reinstatement order was stayed on the basis that Mr Wattie was paid and was not liable to repay any monies he received pending the leave application. The effect of the stay, however, was that Mr Wattie remained on special leave away from the workplace pending the application to the Full Bench.
After the decision of the Full Bench, Mr Wattie returned to active duty as a Senior Correctional officer at the Metropolitan Remand Centre receiving his fortnightly base salary on 16 May 2017 and continued in that position until 17 September 2017 when he broke his leg in a motorcycle accident. He then went on sick leave and, subject to the matters to which I refer below would have been fit to return to work on 1 February 2018.
By summons filed on 17 May 2017 the Secretary sought judicial review of the Commissioner's decision to reinstate Mr Wattie's employment; and of the Full Bench's decision to refuse leave to appeal. On 30 November 2017, Adamson J held that the Commissioner's decision was vitiated by jurisdictional error in that he had ignored relevant material (described by her Honour as "the regulatory context") and "reached a conclusion which was erroneous because it lacked an essential integer: an assessment of the seriousness of the misconduct which required consideration of the regulatory context". [3] Her Honour also held that the Commissioner's error made out jurisdictional error in the Full Bench's refusal of leave. [4]
Accordingly, her Honour set aside the decisions of both the Commissioner and the Full Bench and remitted Mr Wattie's unfair dismissal application to the Industrial Relations Commission to be determined according to law. [5]
Following the delivery of the primary judgment, Mr Wattie's employment was terminated on 30 November 2017.
[3]
The stay application
On 20 December 2017, Mr Wattie filed a summons seeking leave to appeal from the primary judge's decision. By notice of motion filed the same day, he sought a stay of the decision and orders made by her Honour until the determination of his appeal or further order of the Court.
In support of his application, Mr Wattie relied on an affidavit sworn by his solicitor, Mr Michael Jaloussis. In short Mr Jaloussis deposed that the consequences of Mr Wattie's employment being terminated left him in a precarious financial position with a monthly shortfall in his income (taking into account income he receives from a rental property) of $2,276.33.
Subsequent to his original termination, Mr Wattie was paid his accrued leave entitlements in an amount of $44,834.49. Following the Full Bench decision, Mr Wattie sought to "repurchase" that leave by paying the Secretary that amount. Consequent upon his termination in November 2017, the Secretary paid out his accrued leave entitlements again in an amount which (after deducting an incidental expense) came to $58,248.19 gross (second leave repayment).
Before turning to the substantive application, I should mention that the leave application and the appeal have been listed for hearing on a concurrent basis on 28 February 2018.
[4]
Draft Notice of Appeal
In his draft notice of appeal, Mr Wattie seeks to challenge the primary judge's conclusion that the "regulatory context" of his employment was a mandatory consideration, that her Honour erred, in any event in finding that the Commissioner failed to take that "regulatory context" into consideration and, too, in finding that it was sufficient to find jurisdictional error on the part of the Commissioner to conclude that the Full Bench's decision was also vitiated.
[5]
Mr Wattie's submissions
Mr Gibian, who appeared for Mr Wattie, submits that he has a strongly arguable case on appeal based on the absence of statutory basis (in a statutory-rich jurisdiction) of a mandatory requirement that the Commissioner consider the regulatory context, that, in any event, the Commissioner had referred to such matters (which it was arguable were not, in any event relied upon by the Secretary). He also contends that it was strongly arguable that the primary judge's conclusion that the Commissioner's jurisdictional error vitiated the Full Bench decision was not supported by Federal Court authorities in like context.
Mr Gibian also emphasised that while the Secretary had challenged before the Full Bench and the primary judge the Commissioner's decision that the dismissal was harsh, at no stage had the Secretary sought to challenge the reinstatement order.
Mr Gibian argued that the balance of convenience favoured a stay. He contended that a failure to grant a stay would cause Mr Wattie irreparable financial loss in that, if the primary judgment is set aside, he would not be able to recover the loss of earnings he would suffer pending the hearing of his leave application and appeal. He contended that Mr Wattie should not have to have recourse to the monies in the second repayment amount to finance his daily living as that eroded capital to which he was otherwise entitled.
Mr Gibian also relied upon the fact that during the period Mr Wattie returned to employment in 2017, there was no suggestion there had been any difficulty with his employment. Rather, the effect of the stay would be to return the position to that which had existed since May 2017. Accordingly the Service would suffer no hardship or inconvenience.
[6]
The Secretary's submissions
The Secretary relied upon an affidavit of Mr Julian Baker, a Legal Officer, within the Professional Standards Branch of Corrective Services NSW. He deposed that he "understood":
1. That the reinstatement of Mr Wattie to a position generally within CSNSW, whilst his appeal and leave to appeal is to be heard, is not supported by CSNSW. The position of CSNSW has always been, and remains, that the findings of misconduct against Mr Wattie justified the termination of his employment and that no other outcome was appropriate in the circumstances;
2. That it was "also the position of CSNSW that reinstatement of Mr Wattie to his role at the MRRC would not send a favourable message to other staff, or the public, that an officer who has been found guilty of three separate offences of assault against inmates and serious misconduct following from these assaults, continues to act as a custodian of inmates whilst he is awaiting the hearing of the appeal and leave to appeal by the Court of Appeal;" and
3. That, in the event that a stay is granted, and Mr Wattie's appeal is unsuccessful or if his application for unfair dismissal is not granted by the Industrial Relations Commission, CSNSW has concerns that Mr Wattie will unlikely be able to repay any salary payments received during the period of the stay.
In addition, Mr Menzies of Senior Counsel, who appeared, with Ms Douglas-Baker, for the Secretary, submitted that when one took into account, even on a net basis, the second leave repayment, Mr Wattie was in funds to the extent of an amount sufficient to cover the monthly expenses referred to in Mr Jaloussis' affidavit until approximately the end of April 2018.
As to Mr Wattie's prospects of success on appeal, Mr Menzies accepted that the Commissioner had referred to the "regulatory context" in his reasons, but contended it was open to the primary judge to conclude that those references warranted the inference her Honour drew "that he failed to take into account the regulatory context since the scant reference to such matters is almost exclusively confined to quotations from the plaintiff's correspondence" and that passages in the Commissioner's reasons were "too general for an inference to be drawn that the regulatory context was actually considered by the Commissioner". [6]
However, Mr Menzies properly accepted that he could not argue there was no basis for Mr Wattie's appeal, which I take as a concession he could not put that the appeal was without merit, albeit he did contend that the prospects of its success were low.
Mr Menzies accepted that if Mr Wattie's stay application was successful, such that he was reinstated pending the outcome of the appeal, there would be no issue of him repaying the amount paid to him by way of salary, as that amount would be received by Mr Wattie as wages for services rendered.
[7]
Consideration
The overriding principle on an application for a stay is to determine "what the interests of justice require". [7] The onus is upon Mr Wattie to demonstrate a proper basis for a stay. Although the Court will not generally speculate about the appellant's prospects of success, some preliminary assessment could be conducted about whether the appellant has an arguable case. Ultimately it is a matter of discretion whether the Court grants a stay and, if so, as to the terms which would be fair as part of the granting of a stay. What is important in considering whether or not a stay ought to be granted is the balance of convenience and the competing rights of the parties. [8]
The Secretary's concession as to the arguability of the appeal may in some circumstances be sufficient to relieve the Court of the necessity to form a preliminary view of the prospects of success. [9] Having read the Commissioner's reasons and the primary judgment, I am of the view that the Secretary's concession was properly and sensibly made. It also accorded with the Secretary's obligations to the Court as recently explained by Leeming JA in Traderight (NSW) Pty Ltd v Bank of Queensland Ltd. [10]
In my view, this is a case in which the interests of justice and the balance of convenience warrant a stay being granted. Although the Court has been able to grant an early hearing date for the appeal, failure to grant a stay will, as Mr Gibian argued, leave Mr Wattie in a precarious financial position, in circumstances where there is no suggestion that that position could be ameliorated by an order made in this Court even if the appeal is successful.
Granting a stay will restore the parties to the position they occupied, without any apparent trouble, during the period the Secretary's judicial review application was pending until ultimately heard by the primary judge.
I should not in reaching this conclusion be seen to be insensitive to the concerns of the Service communicated by Mr Baker. I would observe, however, that if the Secretary's views as expressed in Mr Baker's affidavit are somehow now more strongly held than they were in 2017 (although why that might be so is not apparent), it is open to the Secretary to ameliorate the effects of the orders I propose making by paying Mr Wattie on the same basis as was done pending the appeal to the Full Bench.
[8]
Orders
I make the following orders:
1. Stay the decisions and orders made by Adamson J on 30 November 2017 until the determination of the appeal or further order.
2. Costs of the stay application to be costs in the application for leave to appeal and, if leave be granted, in the appeal.
[9]
Endnotes
Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036.
Ibid (at [92] - [97]).
Industrial Relations Secretary v Wattie [2017] NSWSC 1662 (at [69]).
Ibid (at [38]), [70]).
Ibid.
Ibid (at [64]).
New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602 (at [83]) per Spigelman CJ (Meagher and Sheller JJA agreeing).
BM Sydney Building Materials Pty Ltd v AWT Building Pty Ltd; BM Sydney Building Materials Pty Ltd v AWT Building Group (AUST) Pty Ltd [2017] NSWCA 67 (at [15]); see also Jingalong Pty Ltd v Todd [2014] NSWCA 330 (at [58] ff).
See, for example, Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 (at 687).
[2014] NSWCA 304 (at [16]).
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Decision last updated: 01 February 2018