AT v Commissioner of Police

The appeal concerned a decision of the Appeal Panel of the Administrative Decisions Tribunal (NSW) which affirmed a decision of a Judicial Member of the Tribunal. The appellant, identified as "AT", sought judicial review of the Appeal Panel's decision. The Commissioner of Police, New South Wales, was subsequently named as the respondent.

The primary legal issues before the Court of Appeal were whether the Appeal Panel had erred in law by failing to afford the appellant the opportunity to address the Panel on the basis of a legal test it ultimately applied, and whether the Appeal Panel was entitled to apply that test itself without such an opportunity. Further issues related to the Tribunal's power to make costs orders under section 120 of the *Administrative Decisions Tribunal Act 1997* (NSW), specifically whether this power extended to making an award of costs even if no costs order had been sought or made by the Tribunal, and whether an exception to the general no-costs regime, requiring the Tribunal to be satisfied an award was "fair", was engaged.

The Court of Appeal found that the Appeal Panel had erred in law by failing to afford the appellant procedural fairness. The Panel had applied a legal test that had not been the basis of the original decision or the subject of submissions, and had not given the appellant an opportunity to address this preferred test. The Court held that the Appeal Panel was not entitled to apply this test itself without providing such an opportunity. Regarding costs, the Court determined that section 120 of the Act did empower the Tribunal to make costs orders in certain circumstances, even if not initially sought, and that the exception for fairness could be engaged.

Consequently, the Court of Appeal allowed the appeal, set aside the Appeal Panel's order affirming the Tribunal's decision, and in its place, set aside the Tribunal's original decision. The Court remitted the matter to the Tribunal for further consideration according to law and ordered the respondent to pay the appellant's costs of the proceedings before the Judicial Member, the Appeal Panel, and the Court of Appeal.