AW v WW (No 2)

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.