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

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.
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.
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.
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,…

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.

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Details

Case: [2010] NSWCA 378
Decision Date: 13 December 2010

CaseChat Overview and Summary

In *Altaranesi v Administrative Decisions Tribunal*, the appellant sought to appeal a decision of the Appeal Panel of the Administrative Decisions Tribunal to the Court of Appeal. The core of the dispute concerned the scope of the appeal available to the appellant under section 119 of the *Administrative Decisions Tribunal Act 1997* (NSW).

The legal issue before the Court of Appeal was whether it possessed the jurisdiction to extend the scope of the appeal to include a review of the merits of the case, or whether its jurisdiction was limited to questions of law. The appellant also raised allegations of fraud in the decision-making process.

Campbell JA held that the right of appeal under section 119 of the *ADT Act* was confined to questions of law. While allegations of acting outside jurisdiction or breaching natural justice could arguably constitute questions of law, and certain procedural errors might also be matters of law, the Court of Appeal's jurisdiction did not extend to reviewing the merits of the case. The Court noted that allegations of fraud, being factually dependent, could not be agitated in an appeal under section 119. Instead, such claims must be pursued through an action in the original jurisdiction of the Supreme Court. Consequently, the application to extend the scope of the appeal to review the merits was rejected. The costs of the application were ordered to be costs in the appeal.

Orders

Orders of the court

Application to extend scope of appeal to review merits of cases is rejected.

Order the costs of the application be costs in the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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. 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. 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. 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. 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.**********

Ratio Decidendi

Legal Principle Established

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