Altaranesi v Administrative Decisions Tribunal

[2010] NSWCA 378

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Altaranesi v Administrative Decisions Tribunal [2010] NSWCA 378

FILE NUMBER(S):
299162/2010

HEARING DATE(S):
13 December 2010

JUDGMENT DATE:
13 December 2010

EX TEMPORE DATE:
13 December 2010

PARTIES:
Tareq Altaranesi (Applicant)
Sydney South West Area Health Service (Respondent)

JUDGMENT OF:
Campbell JA     

LOWER COURT JURISDICTION:
Administrative Decisions Tribunal - Appeal Panel

LOWER COURT FILE NUMBER(S):
109025; 109028; 109029

LOWER COURT JUDICIAL OFFICER:
O'Connor K - DCJ (President); Isenberg N - Judicial Member; LeBreton J - Non-Judicial Member

LOWER COURT DATE OF DECISION:
2 September 2010

LOWER COURT MEDIUM NEUTRAL CITATION:
KT v Sydney South West Area Health Service (GD) [2010] NSWADTAP 60

COUNSEL:
In person (Applicant)
A Britt (Respondent)

SOLICITORS:
In person (Applicant)
B Woolley, Sydney South West Area Health Services (Respondent)

CATCHWORDS:
APPEAL AND NEW TRIAL - appeal on a question of law to Court of Appeal from Appeal Panel of Administrative Decisions Tribunal under s 119 Administrative Decisions Tribunal Act 1997 - no jurisdiction of Court of Appeal to extend appeal to the merits

LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997

CATEGORY:
Consequential orders

CASES CITED:

TEXTS CITED:

DECISION:
Application to extend scope of appeal to review merits of cases is rejected.
Order the costs of the application be costs in the appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2010/299162

CAMPBELL JA

MONDAY 13 DECEMBER 2010

TAREQ ALTARANESI v ADMINISTRATIVE DECISIONS TRIBUNAL

Judgment

1. HIS HONOUR:  This is the hearing of a notice of motion filed by the appellant on 30 November 2010.  The appellant took some proceedings in the Administrative Decisions Tribunal relating to the circumstances in which some information relating to the appellant’s health had been disclosed by governmental authorities.

2. On 2 September 2010 the Appeal Panel dismissed the allegations in matters 109025, 109028 and 109029.  It confirmed a decision that the Tribunal had given at first instance that the appellant should pay costs in an amount to be assessed.  As a result of the decision of 2 September 2010 the respondent has sought the costs of the appeal to the Appeal Panel.  That application is listed for mention on 4 February 2011 before the Appeal Panel. 

3. On 8 September 2010 the appellant filed a notice of intention to appeal to this Court against the decision of the Appeal Panel.  A notice of appeal has been filed since that time.

4. The notice of motion with which I am presently dealing seeks two classes of order.  One, arising as orders 1 and 2 in the appellant’s notice of motion, relates to the costs that the appellant has been ordered to pay in the Tribunal and that he might be ordered to pay by the Appeal Panel if the Appeal Panel were to make an order for costs against him following the proceedings that are listed for mention on 4 February 2011.  Those matters are able to be dealt with adequately, and in a way that the appellant accepts would protect his position concerning costs, by the giving of some undertakings that have been proffered by the respondent to the appeal.

5. The undertakings, as I understand them, are that the respondent undertakes:

   (1)not to enforce any costs order that the appellant has already been ordered to pay in the proceedings from which the present appeal is brought until the determination of the appeal;

   (2)not to enforce any costs orders that the appellant might be ordered to pay by any decision of the Appeal Panel resulting from or listed at the directions hearing of the Appeal Panel on 4 February 2011 pending the determination of the appeal, and

   (3)not to oppose the amendment of the notice of appeal to include an appeal against any costs orders that might be obtained at a hearing in the Appeal Panel resulting from the directions hearing on 4 February 2011. 

   When those undertakings are proffered, and I accept them, there is no need for the Court to make any order concerning the first two prayers for relief in the notice of motion.

6. The third prayer for relief in the appellant’s notice of motion is said to be, “Extension, to review the merits of the cases.”  It appears that the submissions that the appellant would like to make concerning inadequacies in the hearing below are of several kinds.  One type is that the decision appealed from was given outside the jurisdiction of the Appeal Panel.  Another is that there was a denial of natural justice in the hearing in the Appeal Panel.  Another kind is that there were procedural errors.

7. The right of appeal that the appellant has from the decision of the Appeal Panel is to have an appeal on a question of law pursuant to s 119 of the Administrative Decisions Tribunal Act1997 (“ADT Act”).  Insofar as a submission is advanced that the Appeal Panel has acted outside its jurisdiction or that it has acted in breach of natural justice, that is, or is at least arguably, a question of law able to be agitated on an appeal.

8. Insofar as procedural errors are alleged, it would depend upon the particular errors involved as to whether they were, or exhibited, errors of law.  Thus, to the extent to which the contentions of error in the Appeal Panel to which I have referred so far are matters of law, they are matters with which the Court of Appeal can deal.

9. There is another type of allegation that the appellant wishes to make. It is an allegation that the decision below was obtained by fraud. That allegation is an allegation that is dependent upon a factual base that has not at present been established. It is not the sort of allegation that can be made in an appeal brought under s 119 ADT Act. While the Appeal Panel has a discretionary power under s 113(2)(b) ADT Act sometimes to extend the scope of an appeal to it, so that the appeal extends to the merits, this Court has no corresponding power.  It has the appellate jurisdiction that Parliament has conferred on it and that appellate jurisdiction does not contain any analogue of the power of the Appeal Panel to extend an appeal to the merits.

10. It is correct, as the appellant has submitted to me, that there is an interest that the law recognises in decisions not being able to be obtained by fraud.  However, the method by which any decision is attacked, on the ground that it was obtained by fraud, is by action in the original jurisdiction of the Supreme Court, which would ordinarily be assigned to the Equity Division.

11. Under those circumstances, I reject the application made to extend the scope of the appeal to review the merits of the cases.  I order that the costs of today’s application be costs in the appeal.

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LAST UPDATED:
21 February 2012