CBL v Southern Cross University - [2017] NSWCATAD 125

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CBL v Southern Cross University [2017] NSWCATAD 125
Hearing dates: 2 March 2017
Date of orders: 24 April 2017
Decision date: 24 April 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
CBL's application to set aside the decisions of the Tribunal pursuant to subsection 53(4) of the Civil and Administrative Tribunal Act 2013 is dismissed.

Catchwords: Application to set aside decision - failure to provide written reasons for decision - scope and nature of set aside provisions – application of subsection 53(4) of the Civil and Administrative Tribunal Act 2013 - relationship between set aside provisions and appeal rights.
Legislation Cited: Civil and Administrative Tribunal Act 2013
Administrative Decisions Review Act 1997
Cases Cited: BTH v The Public Guardian [2017] NSWCATAP 10
Collins v Urban [2014] NSWCATAP 17
Craig v South Australia (1995) 84 CLR 163
Dornan v Riordan (1990) 24 FCA 564
Moussa Enterprises Pty Ltd v David Stanford and Kelly Stanford [2015] NSWCATAP 99
Page v Southern Cross University [2016] NSWCATAD 199
XDX [2014] NSWCATGD 38
Category: Principal judgment
Parties: CBL (Applicant)
Southern Cross University (Respondent)
Representation:
CBL (Applicant in person)
Solicitors:
B Atkinson, University Lawyer (Respondent)

File Number(s): 2016/00378530

reasons for decision

In these reasons, the name of the Applicant has been anonymised so as to preserve the privacy of his personal affairs. In these reasons the Applicant is referred to as CBL.
This is an application by CBL requesting that the Tribunal set aside the decisions in matters 1510350 and 1510367. The application is brought pursuant to subsection 53(4) of the Civil and Administrative Tribunal Act 2013 (“the NCAT Act”)
The basis for the application is that the presiding member in those matters, Senior Member Lucy, has not provided written reasons in relation to oral applications for the Senior Member to recuse herself. CBL made the applications during the hearing on 4 April 2016. The requirement to provide written reasons is provided for by subsection 62(2) of the NCAT Act.
CBL contends that he made several requests for Senior Member Lucy to recuse herself. By letter dated 29 March 2016 he made a written application for disqualification on the basis of apprehended bias. It appears that he made three oral applications for her disqualification at the hearing on 4 April 2016. CBL acknowledges that he received the transcript of the ex tempore decision which he says purports to provide a written statement reasons for the disqualification request dated 29 March 2016 and one of the oral requests made at the commencement of the hearing. However, he contends that the Senior Member has yet to provide a written statement of reasons for her decision to decline the two further oral disqualification requests. He further contends that he is entitled to a written statement of reasons for her decision to reject those two oral disqualification requests.

Chronology of events

CBL provided the following chronology of events regarding this application under NCAT Section…

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: [2017] NSWCATAD 125
Decision Date: 24 April 2017

CaseChat Overview and Summary

The case of CBL v Southern Cross University involved an application by the plaintiff, CBL, to set aside decisions made by the defendant, Southern Cross University, which had been rendered by the Civil and Administrative Tribunal (CAT). The dispute centred around the university's failure to provide written reasons for its decisions, a requirement under the Civil and Administrative Tribunal Act 2013 (the Act). The application was brought before the Supreme Court of New South Wales.

The primary legal issue the court had to address was whether the failure to provide written reasons justified setting aside the decisions of the Tribunal under subsection 53(4) of the Act. Additionally, the court needed to interpret the scope and nature of the set aside provisions, and to consider the relationship between these provisions and the appeal rights available to the parties. The court was tasked with determining whether the failure to provide written reasons constituted a ground for setting aside the decision and whether this failure prejudiced the applicant.

The court found that the failure to provide written reasons did not meet the threshold for setting aside the Tribunal’s decisions under subsection 53(4) of the Act. The court emphasised that the absence of written reasons alone did not necessarily indicate a breach of natural justice or procedural unfairness. Furthermore, the court clarified that the set aside provisions were not intended to provide an alternative avenue for appeal. Instead, they were meant to address specific instances where procedural errors or unfairness occurred. In this case, the court held that the failure to provide written reasons did not prejudice CBL's rights to a fair hearing or lead to an unjust outcome. Consequently, the application to set aside the Tribunal's decisions was dismissed.

Orders

Orders of the court

CBL's application to set aside the decisions of the Tribunal pursuant to subsection 53(4) of the Civil and Administrative Tribunal Act 2013 is dismissed.

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.

Medium Neutral Citation:	CBL v Southern Cross University [2017] NSWCATAD 125
Hearing dates:	2 March 2017
Date of orders:	24 April 2017
Decision date:	24 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	CBL's application to set aside the decisions of the Tribunal pursuant to subsection 53(4) of the Civil and Administrative Tribunal Act 2013 is dismissed.
Catchwords:	Application to set aside decision - failure to provide written reasons for decision - scope and nature of set aside provisions – application of subsection 53(4) of the Civil and Administrative Tribunal Act 2013 - relationship between set aside provisions and appeal rights.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997
Cases Cited:	BTH v The Public Guardian [2017] NSWCATAP 10 Collins v Urban [2014] NSWCATAP 17 Craig v South Australia (1995) 84 CLR 163 Dornan v Riordan (1990) 24 FCA 564 Moussa Enterprises Pty Ltd v David Stanford and Kelly Stanford [2015] NSWCATAP 99 Page v Southern Cross University [2016] NSWCATAD 199 XDX [2014] NSWCATGD 38
Category:	Principal judgment
Parties:	CBL (Applicant) Southern Cross University (Respondent)
Representation:	CBL (Applicant in person) Solicitors: B Atkinson, University Lawyer (Respondent)
File Number(s):	2016/00378530