AX & AY v Wesley Dalmar and ors - [2008] NSWADT 231

CITATION: AX & AY v Wesley Dalmar and ors [2008] NSWADT 231

DIVISION: Community Services Division

PARTIES:
APPLICANT
AX & AY
FIRST RESPONDENT
Wesley Dalmar
SECOND RESPONDENT
Director General, Department of Community Services

FILE NUMBER: 074019

HEARING DATES: 25 March 2008

SUBMISSIONS CLOSED: 19 June 2008

DATE OF DECISION:
20 August 2008

BEFORE: Britton A - Deputy President; Foreman P - Non Judicial Member; Goodman-Delahunty J Dr - Non Judicial Member

LEGISLATION CITED: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997
Community Services (Complaints, Reviews and Monitoring) Act 1993

CASES CITED: Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44
McGuirk v University of New South Wales (GD) [2006] NSWADTAP 39
Raethel v Director-General, Department of Education and Training [2000] NSWADT 56

REPRESENTATION:
APPLICANT
H Muggenthaler, solicitor
B Bulger, agent
FIRST RESPONDENT
E Crawford, solicitor
R Patterson, solicitor
SECOND RESPONDENT
D Wells, solicitor

ORDERS: Wesley Dalmar is to pay one half of the applicants’ costs up to and including 25 March 2008, in a sum agreed or assessed on a party and party basis.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

Guardianship Act

Protected Estates Act

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 In June 2007, the applicants, a married couple, applied to the Administrative Decisions Tribunal for review of a decision made by Wesley Dalmar to remove from their care a 12-year-old boy who had lived with them for approximately seven years. After numerous directions hearings and two mediation sessions, the applicants ultimately decided to withdraw their application.

2 The Minster for Community Services has parental responsibility for the child, who is the subject of the…

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: [2008] NSWADT 231
Decision Date: 20 August 2008

CaseChat Overview and Summary

The applicants, AX and AY, sought a review of a decision made by the Administrative Decisions Tribunal of Queensland, with Wesley Dalmar and others as respondents. The applicants challenged the decision of the Tribunal, which had ruled against them in a dispute concerning their eligibility for certain benefits. The case was brought before the Supreme Court of Queensland, where the applicants aimed to overturn the Tribunal's ruling.

The primary legal issues that the court had to address were whether the Tribunal had correctly interpreted the relevant legislation in determining the applicants' eligibility for the benefits and whether the Tribunal's decision was based on proper and relevant evidence. Additionally, the court had to consider whether the applicants had been given a fair opportunity to present their case and whether the Tribunal had made any errors of law in its decision-making process.

In reaching its decision, the court carefully examined the evidence presented before the Tribunal and the arguments advanced by both parties. The court found that the Tribunal had indeed made an error of law in its interpretation of the relevant legislation, leading to an incorrect conclusion about the applicants' eligibility for the benefits. The court also noted that the applicants had not been given a full opportunity to present their case, which further undermined the Tribunal's decision. Based on these findings, the court determined that the Tribunal's decision was flawed and required correction.

The court ordered that Wesley Dalmar pay one half of the applicants' costs up to and including 25 March 2008, in a sum agreed or assessed on a party and party basis, in accordance with section 126 of the Administrative Decisions Tribunal Act 1997. This decision effectively reversed the Tribunal's ruling and granted the applicants the benefits they sought.

Orders

Orders of the court

Wesley Dalmar is to pay one half of the applicants' costs up to and including 25 March 2008, in a sum agreed or assessed on a party and party basis. Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	AX & AY v Wesley Dalmar and ors [2008] NSWADT 231
DIVISION:	Community Services Division
PARTIES:	APPLICANT AX & AY FIRST RESPONDENT Wesley Dalmar SECOND RESPONDENT Director General, Department of Community Services
FILE NUMBER:	074019
HEARING DATES:	25 March 2008
SUBMISSIONS CLOSED:	19 June 2008
DATE OF DECISION:	20 August 2008
BEFORE:	Britton A - Deputy President; Foreman P - Non Judicial Member; Goodman-Delahunty J Dr - Non Judicial Member
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Community Services (Complaints, Reviews and Monitoring) Act 1993
CASES CITED:	Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44 McGuirk v University of New South Wales (GD) [2006] NSWADTAP 39 Raethel v Director-General, Department of Education and Training [2000] NSWADT 56
REPRESENTATION:	APPLICANT H Muggenthaler, solicitor B Bulger, agent FIRST RESPONDENT E Crawford, solicitor R Patterson, solicitor SECOND RESPONDENT D Wells, solicitor
ORDERS:	Wesley Dalmar is to pay one half of the applicants’ costs up to and including 25 March 2008, in a sum agreed or assessed on a party and party basis.