Secretary of the Treasury v Public Service Association and Professional Officers' Association Amalgamated Union of NSW (No 2) [2014] NSWIRComm 20

Secretary of the Treasury v Public Service Association and Professional Officers' Association Amalgamated Union of NSW (No 2) [2014] NSWIRComm 20

The parliamentary privilege point was an arguable jurisdictional or legal issue and did not appear likely substantially to prolong the proceedings, so it warranted leave to amend. Although the evidentiary point conflicted with earlier assurances that the appeal was not a merits appeal and had potential to cause delay, the revised undertaking given by the appellants on 29 April 2014 significantly removed the real prejudice identified by the respondents concerning the operation of the regulation and remuneration increases from the first pay period on or after 1 July 2014. On balance, the dictates of justice permitted amendment of the appeal, with the existing stay lifted only pro tem and...

Jurisdiction
Australia
Judgment Date
30 April 2014
Procedural Posture
Interlocutory Application in an Appeal/application for Leave to Appeal / Notice of Motion to Lift a Stay, Amend the Application for Leave to Appeal and Appeal, and Reimpose the Stay Pending Related New South Wales Court of Appeal Proceedings
Outcome
Leave to amend granted; stay lifted pro tem to permit amendment and then reimposed on terms until determination of related New South Wales Court of Appeal proceedings.
Legal Topics
['amendment of Proceedings' 'stay of Appeal' 'delay and Prejudice' 'undertakings' 'parliamentary Privilege' 'jurisdictional Error' 'evidence in Industrial Proceedings']
['industrial Relations' 'civil Procedure' 'appellate Procedure'] ['amendment of Proceedings' 'stay of Appeal' 'delay and Prejudice' 'undertakings' 'parliamentary Privilege' 'jurisdictional Error' 'evidence in Industrial Proceedings']

Case Brief

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Procedural Posture

Interlocutory Application in an Appeal/application for Leave to Appeal / Notice of Motion to Lift a Stay, Amend the Application for Leave to Appeal and Appeal, and Reimpose the Stay Pending Related New South Wales Court of Appeal Proceedings

Legal Issues

  1. 1 ['Whether the stay of the appeal should be lifted pro tem to permit amendment of the appeal and then reimposed.' 'Whether leave should be granted to amend the application for leave to appeal and appeal to add a parliamentary privilege or jurisdictional point.' "Whether leave should be granted to amend the application for leave to appeal and appeal to add an evidentiary ground concerning the treatment of a Treasury official's evidence as not independent or impartial." "Whether delay and prejudice to respondents' members, including possible effects of cl 6(1)(e) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011, should preclude amendment or continuation of the stay." "Whether the appellants' undertaking sufficiently reduced or eliminated the asserted prejudice."]

Ratio Decidendi

The parliamentary privilege point was an arguable jurisdictional or legal issue and did not appear likely substantially to prolong the proceedings, so it warranted leave to amend. Although the evidentiary point conflicted with earlier assurances that the appeal was not a merits appeal and had potential to cause delay, the revised undertaking given by the appellants on 29 April 2014 significantly removed the real prejudice identified by the respondents concerning the operation of the regulation and remuneration increases from the first pay period on or after 1 July 2014. On balance, the dictates of justice permitted amendment of the appeal, with the existing stay lifted only pro tem and...

Court Disposition

Leave to amend granted; stay lifted pro tem to permit amendment and then reimposed on terms until determination of related New South Wales Court of Appeal proceedings.

Orders

  • ['On the basis of the undertaking provided by the appellants to the Commission on 29 April 2014, the stay presently in force is lifted pro tem so as to permit amendment of the appeal as set out in these orders.' 'Leave to amend the application for leave to appeal and appeal is granted in terms of par A. 2. of the...