AF v Roads and Maritime Services (GD) - [2012] NSWADTAP 45

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: AF v Roads and Maritime Services (GD) [2012] NSWADTAP 45
Hearing dates: 30 October 2012
Decision date: 09 November 2012
Before: Judge K P O'Connor, President
Decision:
Leave to appeal is refused.

Catchwords: INTERLOCUTORY APPEAL AND CAPACITY - Effect of appointment of a litigation representative - whether affected person can appeal directly - procedure in relation to appeals relating to a decision to appoint a representative - appeal not treated as incompetent in the circumstances - discretion as to leave - Leave refused
Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Cases Cited: AF v Roads and Maritime Services (No 2) [2012] NSWADT 210
Murray v Williams [2010] NSWSC 1243
NZ v NSW Land and Housing Corporation [2007] NSWADTAP 126
Slaveski v State of Victoria & Ors [2009] VSC 423
Slaveski v State of Victoria & Ors [2009] VSC 596
Category: Interlocutory applications
Parties: AF (Appellant)
Roads and Maritime Services (Respondent)
Representation: Counsel
M Robinson SC (Respondent)
In person (Appellant)
F Walmsley, King & Wood Mallesons (Respondent)

File Number(s): 129035
Decision under appeal

Citation:

AF v Roads and Maritime Services (No 2) [2012] NSWADT 210

Date of Decision:

2012-10-16 00:00:00

Before:

General Division

File Number(s):

073135 and 073275

REASON FOR DECISION

This decision deals with a purported interlocutory appeal and related interlocutory order applications lodged with the Appeal Panel by a person for whom a representative has been appointed by the Tribunal at first instance.

Section 71 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) provides as relevant to this case:

71 Representation of parties

(1) A party to proceedings before the Tribunal may:

(a) appear without representation, or

(b) be represented by an Australian legal practitioner, or

(b1) with the leave of the Tribunal given under subsection (2), be represented by an agent who is not an Australian legal practitioner, or

(c) if the party is an incapacitated person-be represented by such other person as may be appointed by the Tribunal under subsection (4).

...

(4) If it appears to the Tribunal that a party is an incapacitated person, the Tribunal may appoint any other person the Tribunal thinks fit to represent the party.

...

(5) Anything done or omitted to be done by a member of the Guardian Ad Litem Panel who is appointed by the Tribunal under subsection (4) to represent a party to the proceedings who is an incapacitated person does not subject the member personally to any action, liability, claim or demand if the thing was done, or omitted to be done, in good faith for the purpose of representing the incapacitated person.

(5A) However, any such liability attaches instead to the Crown.

...

(7) In this section:

Guardian Ad Litem Panel means the panel constituted as the Guardian Ad Litem Panel by the Director-General of the Department of Justice and Attorney General.

incapacitated person means:

(a) a minor, or

(b) a person who is totally or partially incapable of representing himself…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read AF v Roads and Maritime Services (GD) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWADTAP 45
Decision Date: 09 November 2012

CaseChat Overview and Summary

The case before the court involved a party identified as AF, who sought to appeal a decision of the Administrative Decisions Tribunal (ADT). The dispute centred on the appointment of a litigation representative by the ADT for AF, and the implications this had on AF's capacity to directly appeal a decision. The Roads and Maritime Services (RMS) was the other party in this matter. The case was heard in the Supreme Court of New South Wales, General Division.

The central legal issues for the court to determine were whether the appointment of a litigation representative effectively barred AF from appealing directly and, if so, what procedural steps should be followed for any such appeals. Additionally, the court needed to assess the circumstances under which the appointment of a litigation representative might be considered in relation to an appeal's competence and the appropriate exercise of discretion concerning leave to appeal.

The court examined the relevant provisions of the ADT Act and other pertinent legislation, concluding that the appointment of a litigation representative did not automatically invalidate AF's capacity to appeal. The court found that while the representative could manage the appeal process, AF retained the right to directly appeal certain decisions. The court emphasised the importance of ensuring that any appeal related directly to the decision to appoint a representative, and it retained discretion over granting leave to appeal. In this instance, the court exercised its discretion and refused leave to appeal, finding that the appeal did not meet the necessary criteria for proceeding.

Orders

Orders of the court

Leave to appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	AF v Roads and Maritime Services (GD) [2012] NSWADTAP 45
Hearing dates:	30 October 2012
Decision date:	09 November 2012
Before:	Judge K P O'Connor, President
Decision:	Leave to appeal is refused.
Catchwords:	INTERLOCUTORY APPEAL AND CAPACITY - Effect of appointment of a litigation representative - whether affected person can appeal directly - procedure in relation to appeals relating to a decision to appoint a representative - appeal not treated as incompetent in the circumstances - discretion as to leave - Leave refused
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
Cases Cited:	AF v Roads and Maritime Services (No 2) [2012] NSWADT 210 Murray v Williams [2010] NSWSC 1243 NZ v NSW Land and Housing Corporation [2007] NSWADTAP 126 Slaveski v State of Victoria & Ors [2009] VSC 423 Slaveski v State of Victoria & Ors [2009] VSC 596
Category:	Interlocutory applications
Parties:	AF (Appellant) Roads and Maritime Services (Respondent)
Representation:	Counsel M Robinson SC (Respondent) In person (Appellant) F Walmsley, King & Wood Mallesons (Respondent)
File Number(s):	129035
Decision under appeal	Citation: AF v Roads and Maritime Services (No 2) [2012] NSWADT 210 Date of Decision: 2012-10-16 00:00:00 Before: General Division File Number(s): 073135 and 073275