Franks v Roads & Traffic Authority S180/1996 [1996] HCATrans 511 (13 December 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S180 of 1996

B e t w e e n -

GREGORY FRANKS

Applicant

and

ROADS & TRAFFIC AUTHORITY

Respondent

Application for special leave to appeal

DAWSON J

TOOHEY J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 1996, AT 11.30 AM

Copyright in the High Court of Australia

MR B.S. ROBISON: If the Court pleases, in this matter I appear with MS D.L. BENTLEY, as my junior, for the applicant. (instructed by Remington & Co)

MR A.M. COLEFAX: May it please the Court, I appear for the respondent. (instructed by Hunt & Hunt)

DAWSON J: Mr Robison.

MR ROBISON: Thank you, your Honours. This is a very short point, your Honours. It involves, as I have included in my amended submissions, the question of construction of section 48(2) of the relevant legislation which governs the Administrative Appeal Tribunal in the State of New South Wales, otherwise known as the Government and Related Employees Appeal Tribunal. I know your Honours are familiar with the facts. The situation is that - if I just partly refer to those facts - he was initially charged by the employer with certain misconduct as far as his office duties, if I can use that expression. At the same time there were investigations going on concerning possible criminal matters like the issuing of a licence under different names and things of that nature. An election was made to deal with the lesser of those two allegations which I might call the misconduct as an officer in the course of his duties.

KIRBY J: This is your client?

MR ROBISON: My client, yes.

KIRBY J: He was doing some cleaning allegedly under a false name.

MR ROBISON: He was dealt with and he received a demotion. It was seen fit to appeal against that and it came before the Government Related Appeals Tribunal. That sits in a quasi de novo capacity as the Act sets out and is a retrial in a sense. In that retrial evidence was introduced that related to these criminal matters of licences and things of that nature which had been elected not to use in initial proceedings.

TOOHEY J: You are not questioning that now.

MR ROBISON: I am not questioning it, no. I am only leading up to that point. There is no issue as to the finding by the tribunal of fact. The question is whether those words there gives the power to, as in this case, turn from a demotion which could be in any kind of scenario, even, say, a month's demotion or, to use another example, a man gets fined $100 or loses one year seniority, turn that into dismissal.

TOOHEY J: Can we just be clear about this. You accept, do you, that the tribunal's powers, whatever construction is put upon section 48, the orders that they may make really go back to section 42.

MR ROBISON: No, I say they do not have power to do that. I am saying that the initial department has those powers to do all kinds of things, including dismissal, ask to resign, et cetera, et cetera. The appeal relates to the disciplinary orders which are demotion.

KIRBY J: That is a section 24 proceeding?

MR ROBISON: The appeal is the vehicle of the applicant to, in a sense, review that demotion order only.

KIRBY J: That is right, but the powers that are given are very, very, broadly expressed as has been said many times in many cases.

MR ROBISON: I know that.

KIRBY J: To make such other decision with respect to the appeal as it thinks fit with respect to the appeal, a very broad wedge.

MR ROBISON: I know, your Honour. I know of your Honour Justice Kirby's decision - - -

KIRBY J: I do not think I was alone.

TOOHEY J: Really, your argument, Mr Robison, amounts to saying that the tribunal can order, "appeal allowed", "appeal dismissed".

MR ROBISON: That is one, yes.

TOOHEY J: Can it do anything else on the construction you seek to place on the section, or the subsection?

MR ROBISON: Well, before I answer that - to take a grammatical interpretation of the section: there are, in a sense, two alternatives. "The court may decide to allow or disallow the appeal", which is one, or the other, "or make such other decision with respect to the appeal as it thinks fit". So, obviously, the legislation conceives a power to order and dismiss as one concept, and another concept is to make an order with respect to the appeal.

TOOHEY J: I am sorry, I do not follow that at all. The tribunal would, first of all, have to come to grips with the appeal and say, even as a matter of form, that the appeal is being allowed or the appeal is being dismissed.

MR ROBISON: Well, the interesting - was it never made a final order about the appeal.

TOOHEY J: That may be but we are in the area of construction at the moment. I am still not - you said you would rather defer answering the question I put to you.

MR ROBISON: I am coming back to it now. The answer to your Honour's question is as the court must decide to allow or dismiss the appeal first, because it is an appeal that is before the court.

KIRBY J: The word is disjunctive, it is "or". It says, "or decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit".

MR ROBISON: That is why I was separating it into two parts, dismiss or uphold, or the second part, you might say, makes this other order. My first submission is - - -

KIRBY J: If there is a doubt, is it not desirable that the tribunal should, (a) have the large powers that Parliament seems to have given it and, (b) that the powers should be those of the employer? I mean, it is hearing an appeal from the employers - - -

MR ROBISON: That has been the construction put on by, not only the New South Wales Court of Appeal in this case, but other cases before the New South Wales Court of Appeal.

TOOHEY J: It is hard to know then what those words "or make such other decision with respect to the appeal" - what work they have to do other than as an adjunct to allowing or dismissing the appeal. I mean it is hardly likely that it would contemplate such a thing as a decision to adjourn the hearing or something of that sort.

MR ROBISON: To follow that concept, your Honour, is that - I am saying a prerequisite here is they have to decide to either allow or dismiss the appeal. They could dismiss the appeal and bury the order by dismissal, or allow the appeal. The allowing of the appeal only goes to the demotion.

KIRBY J: You know the line of territory in Parker's Case, did your client get a fair warning that this was - - -

MR ROBISON: No, your Honour, and I was referring to section 125 of the New South Wales Justices Act.

KIRBY J: That is a different issue. Have you said everything you want to say on the power of the tribunal to dismiss?

MR ROBISON: Yes, your Honour.

KIRBY J: It really comes down to 28(2) and whether the line of territory that has been confirmed, reconfirmed, and reconfirmed again and applied many times is right or whether we should visit it. So, I think we understand that point.

MR ROBISON: Yes. I have nothing further, your Honours.

KIRBY J: What about the - is there not a due process point that you had in - - -

MR ROBISON: That is abandoned, your Honour.

KIRBY J: Abandoned, is it? I see.

MR ROBISON: Because there were no proper objections taken at the time.

DAWSON J: The Court need not trouble you, Mr Colefax.

There is insufficient reason to doubt the correctness of the decision in the court below to warrant the grant of special leave to appeal. Special leave is accordingly refused.

MR COLEFAX: With costs, your Honour?

DAWSON J: Do you have anything to say about that, Mr Robison?

MR ROBISON: Yes, your Honour. This matter is one in which, as I understand, the Registrar of the Court saw fit to waive any filing fees because of the impecunious state of the appellant. He has suffered a consequence of the tribunal's decision totally disproportionate to what he was initially dealt with. He was never given a warning by the tribunal as in Parker's Case suggested should be done to be invited the chance to withdraw.

KIRBY J: That is not something that is before us.

MR ROBISON: No, I know, but I can assure your Honour - - -

MR COLEFAX: That is not true, your Honour.

MR ROBISON: As I understand it, no warning was ever given by the tribunal.

KIRBY J: That ought to have been raised and dealt with as a specific point. It cannot really be raised and dealt with on the issue of costs because we are disposing of costs in terms of the matter that has been argued before us.

MR ROBISON: I am only trying to put the brick wall - - -

KIRBY J: Of course, you can. Of course, whether costs can be recovered is another matter but in terms of principle there seems to be no reason why they should not be ordered.

MR ROBISON: That is all I have to say on the question of costs, your Honour.

DAWSON J: Special leave is refused with costs. The Court will now adjourn sine die.

AT 11.39 PM THE MATTER WAS CONCLUDED