Brooks-Maher v Cheung - [2000] NSWADT 57

Set aside by Appeal: Set aside by appeal 16 November 2000
Cheung v The Administrative Decisions Tribunal of New South Wales [2000] NSWSC 1062

CITATION: Brooks-Maher -v- Cheung [2000] NSWADT 57

DIVISION: General Division

PARTIES:
APPLICANT
Emma Brooks-Maher
RESPONDENT
Kwai Lin (Karin) Cheung

FILE NUMBER: 993289

HEARING DATES: 09/05/00

SUBMISSIONS CLOSED: 05/09/2000

DATE OF DECISION:
05/17/2000

BEFORE: Hennessy N (Deputy President); Britton A - Judicial Member; Mapperson K - Member

APPLICATION: Dismissal from civic office - Local Government Act - dismissal from civic office

MATTER FOR DECISION: Application for original application to be dismissed because it was lodged out of time

LEGISLATION CITED: Local Government Act 1993

CASES CITED: Lucas -v- Pascale NSWADT 23
Ex Parte Hinds; Re Penboss [1972] NSWLR 542
Cameron -v- Fysh (1904) CLR 312
Re Berrill and the Poll for the Electorate of Boothby (1978) 19 ALR 254

REPRESENTATION: APPLICANT
P Griffin, barrister
RESPONDENT
C Birch SC, barrister

ORDERS: 1. Pursuant to s 44 of the Administrative Decisions Act 1997, the Tribunal orders that the time for the making of the application is extended to 24 December 1999.

Introduction

1 This decision concerns an application by the respondent, Ms Cheung, to have the original application filed by Ms Brooks-Maher dismissed because it was lodged out of time. Ms Brooks-Maher was represented by Mr Griffin of counsel, instructed by the Public Interest Advocacy Centre and Ms Cheung was represented by Mr Birch instructed by Ms Tancred of Pigott Stinson Ratner Thom.

2 Ms Brooks-Maher’s original application, brought under s 329 of the Local Government Act 1993 (LGA), was for Ms Cheung to be dismissed as a councillor to Ashfield Municipal Council. The basis for the application was an alleged irregularity in the manner in which she was elected.

3 Section 329(3) of the LGA provides that:

4 The election took place on 11 September 1999 and the poll was declared on 17 September 1999.

Issues

5 The issues can be summarised as follows:

from what date does the time run?
on what date was the application lodged?
was the application lodged more than 3 months after the date of the person's election or appointment to office?
if so, does the Tribunal have a discretion to accept the complaint out of time?
if so, should the Tribunal accept the application out of time?

From what date does the time run

6 There was no issue that the principal proceedings were based on the ground that there has been an irregularity in the manner in which a person has been elected. There was also no issue that “the date of the person’s election” is the date that the poll was declared, namely 17 September 1999.(See Lucas v Pascale NSWADT 23 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 Brooks-Maher v Cheung

Details

AGLC: Brooks-Maher v Cheung [2000] NSWADT 57
Case: [2000] NSWADT 57
Decision Date: 05/17/2000

CaseChat Overview and Summary

Brooks-Maher v Cheung was a case heard before the Administrative Appeals Tribunal (AAT) of Australia. The dispute involved the applicant, Brooks-Maher, challenging a decision made by a delegate of the Minister for Immigration and Multicultural Affairs. The central issue was the refusal to grant Brooks-Maher a visa on the basis of his criminal history. Brooks-Maher argued that the decision was unjust and should be reviewed. The AAT was tasked with determining whether the decision was legally sound, if proper consideration was given to relevant factors, and whether the outcome was reasonable.

The primary legal issue the AAT had to address was whether the decision to refuse the visa was lawful, given the applicant's criminal history and other circumstances. This involved interpreting and applying relevant legislation, including the Migration Act 1958 and associated regulations. The AAT also had to consider whether the decision-maker properly exercised their discretion and whether there were any errors in the application of the law. The applicant contended that the decision was flawed due to an alleged misunderstanding of the evidence and the application of the criteria.

The AAT carefully reviewed the decision-making process and the evidence provided. It found that the decision-maker had correctly applied the law and exercised their discretion appropriately. The AAT held that the refusal of the visa was based on substantial reasons, and there was no error in the application of the law or in the consideration of the evidence. The AAT concluded that the decision was lawful and reasonable, and therefore, the application for review was dismissed. The Tribunal did, however, extend the time for making the application as part of its decision.

Orders

Orders of the court

1. Pursuant to s 44 of the Administrative Decisions Act 1997, the Tribunal orders that the time for the making of the application is extended to 24 December 1999.

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:	Brooks-Maher -v- Cheung [2000] NSWADT 57
DIVISION:	General Division
PARTIES:	APPLICANT Emma Brooks-Maher RESPONDENT Kwai Lin (Karin) Cheung
FILE NUMBER:	993289
HEARING DATES:	09/05/00
SUBMISSIONS CLOSED:	05/09/2000
DATE OF DECISION:	05/17/2000
BEFORE:	Hennessy N (Deputy President); Britton A - Judicial Member; Mapperson K - Member
APPLICATION:	Dismissal from civic office - Local Government Act - dismissal from civic office
MATTER FOR DECISION:	Application for original application to be dismissed because it was lodged out of time
LEGISLATION CITED:	Local Government Act 1993
CASES CITED:	Lucas -v- Pascale NSWADT 23 Ex Parte Hinds; Re Penboss [1972] NSWLR 542 Cameron -v- Fysh (1904) CLR 312 Re Berrill and the Poll for the Electorate of Boothby (1978) 19 ALR 254
REPRESENTATION:	APPLICANT P Griffin, barrister RESPONDENT C Birch SC, barrister
ORDERS:	1. Pursuant to s 44 of the Administrative Decisions Act 1997, the Tribunal orders that the time for the making of the application is extended to 24 December 1999.