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AW v WW (No 2)

AW v WW (No 2)

Case [2024] NSWSC 146 23 February 2024

Judicial Review

Civil and Administrative Tribunal Act 2013 (NSW), Sch 6, Part 6, Cl 14(1)(b)

Administrative Law

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Supreme Court

New South Wales

Medium Neutral Citation: AW v WW (No 2) [2024] NSWSC 146
Hearing dates: 16 October 2023
Decision date: 23 February 2024
Jurisdiction: Equity
Before: Kunc J
Decision:
Appeal dismissed

Catchwords:
ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Findings of fact — Whether a “question of law” — Civil and Administrative Tribunal Act 2013 (NSW), Sch 6, Part 6, Cl 14(1)(b)

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW) sch 6, pt 6, cl 14(1)(b), 14(4)
Guardianship Act 1987 (NSW) ss 3(1), 14, 25G, 83
Powers of Attorney Act 2003 (NSW)

Cases Cited:
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680
AW v WW [2023] NSWSC 724
Bruce v Cole (1998) 45 NSWLR 163
Castro v Minister for Immigration and Ethnic Affairs [1997] FCA 40
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220
Re R [2000] NSWSC 886
Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40
Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62

Category: Principal judgment
Parties: AW (plaintiff)
WW (defendant)
Representation:
Counsel: C D Wood SC (plaintiff)
R L Seiden SC/N J Olson (defendant)
Solicitors:
Swan Lawyers (plaintiff)
Macrae Lawyers (defendant)

File Number(s): 2023/80280
Publication restriction: None
Decision under appeal

Court or tribunal:

Civil and Administrative Tribunal
New South Wales

Jurisdiction:

Guardianship Division

Date of Decision:

28 November 2022

Before:

R H Booby, Senior Member (Legal)
W E Blaxland, Senior Member (Professional)
A Healy, General Member (Community)

File Number(s):

NCAT 2021/286566

JUDGMENT

Summary

In law, as in life, simple questions are not always simple to answer. This appeal from a decision of the Guardianship Division of the NSW Civil and Administrative Tribunal turns on a simple question: what is a question of law? However, “the expression “question(s) of law” and cognate expressions are not deployed uniformly in the statute books and … there is no universal meaning or understanding of what is a question of law”: Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [40], per Bathurst CJ and Bell P; Johnson, Garling and Lonergan JJ agreeing).
The plaintiff AW is the only child of the defendant (Mrs W), an 89 year old widow whose husband died in 2015.
By Reasons for Decision delivered on 28 November 2022, the Tribunal in its Guardianship Division, constituted by R H Booby, Senior Member (Legal), W E Blaxland, Senior Member (Professional) and A Healy, General Member (Community) dismissed a guardianship application and a financial management application brought by AW in respect of Mrs W.
In 2021, Mrs W had appointed “KB” (a retired solicitor and cousin by marriage) and…

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.

Continue reading AW v WW (No 2)

Details

AGLC: AW v WW (No 2) [2024] NSWSC 146
Case: [2024] NSWSC 146
Decision Date: 23 February 2024

CaseChat Overview and Summary

The case of AW v WW (No 2) involved the appellant, AW, challenging a decision of the Civil and Administrative Tribunal (NCAT) that had dismissed their application for a declaration that a lease on a property was void. The dispute centred on whether the NCAT erred in its findings of fact and whether the errors amounted to a question of law warranting judicial review. The appeal was heard by the NSW Supreme Court.

The legal issues in this case centred around the grounds of review available under the Civil and Administrative Tribunal Act 2013 (NSW). Specifically, the court needed to determine whether the NCAT had made an error of law in its findings of fact, which would render the decision reviewable. The court examined whether the errors in question were of such a nature that they could be classified as a "question of law" under clause 14(1)(b) of the Act. The court also considered the principles surrounding irrelevant and relevant considerations in administrative decision-making.

In examining the NCAT's decision, the court identified several errors of fact but concluded that these did not reach the threshold of a question of law. The court emphasised that the determination of whether a fact-finding error is reviewable as a question of law is a nuanced inquiry. The court held that the errors did not involve a misapplication of the law or a fundamental failure to understand the relevant legal principles, but rather were errors in the assessment of evidence. Consequently, the court found that the decision did not constitute a question of law and dismissed the appeal.

The court's final orders affirmed the NCAT's decision, rejecting AW's appeal. The tribunal's findings of fact, despite their errors, did not amount to a question of law. This conclusion underscored the importance of distinguishing between factual errors and legal errors in administrative law, particularly in the context of judicial review.

Orders