BTH v BTI, BTJ

Case [2016] NSWSC 533


Supreme Court

New South Wales

Case Name: 

BTH v BTI, BTJ & Ors

Medium Neutral Citation: 

[2016] NSWSC 533

Hearing Date(s): 

5 April 2016

Date of Orders:

27 April 2016

Decision Date: 

27 April 2016

Jurisdiction: 

Common Law

Before: 

Wilson J

Decision: 

(1) Leave is granted to the plaintiff to rely upon the Further Amended Summons.
 
(2) Leave to appeal the decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales of 15 January 2016 is refused.
 
(3) The Further Amended Summons is dismissed.
 
(4) Costs awarded against the plaintiff, in favour of the second defendant.

Catchwords: 

ADMINISTRATIVE LAW – judicial review – interlocutory decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales in guardianship matter – issue concerning legal representation of first defendant - s 69 of the Supreme Court Act 1970 (NSW) – r 32 of the Civil and Administrative Tribunal Rules 2014 (NSW) – ss 45 and 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) - Cl 14(1)(a) of Schedule 6 of the Civil and Administrative Tribunal Act 2013 (NSW) – Further Amended Summons dismissed

Legislation Cited: 

Supreme Court Act 1970 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited: 

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
BTH v NSW Public Guardian [2016] NSWCATAP 12
C v W [2015] NSWSC 1774
Carolan v AMF Bowling Pty Limited [1995] NSWCA 69
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561
NSW Breeding and Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales [2001] NSWSC 494; 53 NSWLR 559
Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69
Prince Jefri Bolkiah v KPMG [1999] 2 AC 222
Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63
Re R [2000] NSWSC 886
Rodger v de Gelder [2015] NSWCA 211
Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56

Category: 

Principal judgment

Parties: 

BTH (Plaintiff)
BTI (First Defendant)
BTJ (Second Defendant)
Appeal Panel of the Civil and Administrative Tribunal of NSW (Third Defendant)
Public Guardian of NSW (Fourth Defendant)

Representation: 

E Romaniuk SC/ E Grotte (Plaintiff)
B Katekar/ GP GEE (Second Defendant)

File Number(s): 

2016/00033571

Publication Restriction: 

None

JUDGMENT

  1. By Further Amended Summons (“FA Summons”) dated 1 April 2016 and upon which leave is sought to rely, the plaintiff, given the pseudonym of BTH, seeks the following orders:

    (1)A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the orders made by the third defendant on 22 December 2015 and the decision and statement of reasons issued by the third defendant on 15 January 2016 are void and of no effect;

    (2)An order setting aside the orders made by the third defendant on 22 December 2015 and the decision and statement of reasons issued by the third defendant…

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Details
AGLC
BTH v BTI, BTJ [2016] NSWSC 533
Case
[2016] NSWSC 533
Decision Date

CaseChat Overview and Summary

The case of BTH v BTI, BTJ involved a judicial review of an interlocutory decision made by the Appeal Panel of the Civil and Administrative Tribunal of New South Wales (CAT) in a guardianship matter. The plaintiff, BTH, sought to challenge the Panel’s decision on several grounds, including procedural fairness, consideration of relevant material, and adequacy of reasons. The defendants, BTI and BTJ, were involved in the guardianship matter before the CAT. The primary dispute centred around the legal representation of BTI and the Panel's handling of this issue.

The key legal issues the court needed to address were whether the Appeal Panel's decision contained errors of law that warranted judicial review and whether the plaintiff had demonstrated sufficient grounds to warrant leave to appeal. Specifically, the court had to determine if the Panel's failure to consider certain relevant matters constituted a constructive failure of jurisdiction, and if the reasons provided for the decision were adequate. Furthermore, the court examined whether the plaintiff had shown that the Panel's decision was unreasonable or unsupported by evidence.

The court found that while the errors alleged by the plaintiff could indeed be considered questions of law, the plaintiff had not demonstrated the necessity for judicial intervention. The court noted that ordinarily, an applicant for leave to appeal must show more than mere disagreement with the primary decision maker's conclusion. The court emphasised the importance of finality and proportionality in deciding whether to grant leave to appeal. Given the circumstances, the court determined that the plaintiff had not met the required threshold to warrant judicial review at that stage. Consequently, the Further Amended Summons was dismissed.

The court made an order dismissing the Further Amended Summons filed by the plaintiff. This decision underscored the high threshold that must be met for leave to appeal to be granted in such matters, highlighting the need for compelling reasons beyond mere disagreement with the tribunal's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Another equally effective remedy available by leave to the plaintiff is provided by s 83 of the CAT Act. The relevant provision is s 83(1) which is set out as follows,“83 Appeals against appealable decisions(1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.” Perhaps cognisant of the general principle relating to the s 69 jurisdiction, the plaintiff subsequently filed the FA Summons, adding (in the alternative) the relief claimed at prayers 6 – 10, extracted in [1] above, and seeking orders pursuant to s 83 of the CAT Act. Proceedings brought pursuant to s 83 require the Court’s leave to appeal on a question of law. In the grounds set out in the FA Summons the plaintiff asserts that the NCAT Appeal Panel made a number of errors of law, being (in summary form),(a)A constructive failure to exercise jurisdiction by a failure to take into account a relevant consideration, or a failure to respond to a substantial argument on the exercise of the Panel’s discretion pursuant to s 45(3)(b) and s 45(4)(c) of the CAT Act. This is asserted to be an error of procedural fairness as discussed in Rodger v de Gelder [2015] NSWCA 211 at [88] – [96] and [98] – [109].(b)Failure to take into account relevant material, being whether BTI had given informed consent to the solicitor continuing to act for her, when considering whether to exercise the discretions pursuant to s 45(3)(b) and s 45(4)(c), as referred to above.(c)Failure to take into account relevant material, being the NCAT decision of 27 May 2014, when considering whether to exercise the discretions pursuant to s 45(3)(b) and s 45(4)(c) as referred to above.(d)Failure to take into account relevant material, being the issue of confidentiality, when considering whether to exercise the discretions pursuant to s 45(3)(b) and s 45(4)(c) as referred to above.(e)Failure to provide adequate reasons.(f)Failure to take into account relevant material and apply correct legal principles, such that the findings of the NCAT Appeal Panel were unreasonable, unsupported by the evidence, and not open to it. It is accepted by the second defendant that errors of the nature asserted by the plaintiff to have been made by the Appeal Panel are capable of being regarded as questions of law, consistent with what was outlined by Lindsay J in C v W [2015] NSWSC 1774 at [43], referring to ReR [2000] NSWSC 886 at [24]-[25] per Young J, and Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [11] - [13]. Whether leave should be granted to bring an appeal of this nature is dependent upon a number of factors. Ordinarily, an applicant for leave must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at: Carolan v AMF Bowling Pty Limited [1995] NSWCA 69; Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. Questions of finality are important, as are questions of proportionality.

Ratio Decidendi

Legal Principle Established

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