X (a pseudonym) v Secretary, Department of Education [2022] NSWIRComm 1041

X (a pseudonym) v Secretary, Department of Education [2022] NSWIRComm 1041

It was not in the interests of justice to allow the respondent to recall SLSO C. Although there was an agreement that the appellant would not object to the respondent recalling SLSO C subject to leave, the application was made late after the evidentiary cases had closed, the relevant matters were available by the end of the hearing, SLSO C had already been cross-examined by both parties over two days on the relevant topics, the respondent was on notice of broad inconsistencies in the evidence, and neither the respondent nor SLSO C would suffer prejudice under Browne v Dunn if leave were refused.

Jurisdiction
Australia
Judgment Date
10 June 2022
Procedural Posture
Appeal Against a Decision to Dismiss the Appellant Pursuant to S 98 of the Industrial Relations Act 1996 (nsw); Notice of Motion to Recall a Witness for Further Cross Examination / Procedural Ruling After Evidentiary Cases Had Closed and Before Final Submissions
Outcome
Notice of motion dismissed
Legal Topics
['notice of Motion to Recall Witness' 'further Cross Examination' 'interests of Justice' 'browne V Dunn' 'public Sector Disciplinary Proceedings']
['employment and Industrial Law' 'industrial Relations Procedure' 'evidence'] ['notice of Motion to Recall Witness' 'further Cross Examination' 'interests of Justice' 'browne V Dunn' 'public Sector Disciplinary Proceedings']

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Procedural Posture

Appeal Against a Decision to Dismiss the Appellant Pursuant to S 98 of the Industrial Relations Act 1996 (nsw); Notice of Motion to Recall a Witness for Further Cross Examination / Procedural Ruling After Evidentiary Cases Had Closed and Before Final Submissions

Legal Issues

  1. 1 ['Whether the Commission should grant leave to recall SLSO C for further cross-examination after the parties had closed their evidentiary cases.' 'Whether an agreement between the parties about SLSO C being called once meant the appellant would not object to the respondent seeking to recall SLSO C, subject to leave of the Commission.' 'Whether fairness, including the rule in Browne v Dunn, required SLSO C to be given a further opportunity to respond to evidence said to be inconsistent with her evidence.']

Ratio Decidendi

It was not in the interests of justice to allow the respondent to recall SLSO C. Although there was an agreement that the appellant would not object to the respondent recalling SLSO C subject to leave, the application was made late after the evidentiary cases had closed, the relevant matters were available by the end of the hearing, SLSO C had already been cross-examined by both parties over two days on the relevant topics, the respondent was on notice of broad inconsistencies in the evidence, and neither the respondent nor SLSO C would suffer prejudice under Browne v Dunn if leave were refused.

Court Disposition

Notice of motion dismissed

Orders

  • ['The notice of motion is dismissed.']