Cheung v Administrative Decisions Tribunal - [2000] NSWSC 1062

Reported Decision: [2000] 111 LGERA 353

New South Wales

Supreme Court

CITATION: Cheung v The Administrative Decisions Tribunal of New South Wales [2000] NSWSC 1062

CURRENT JURISDICTION: Common Law Division
Administrative Law List

FILE NUMBER(S): SC 30039/00

HEARING DATE(S): 16 November 2000

JUDGMENT DATE: 16 November 2000

PARTIES :

Kwai Lin (Karin) Cheung (Plaintiff)
The Administrative Decisions Tribunal of New South Wales (1st Defendant)
Emma Dorothy Brooks Maher (2nd Defendant)

JUDGMENT OF: Dunford J

LOWER COURT
JURISDICTION : The Administrative Decisions Tribunal of New South Wales

LOWER COURT
FILE NUMBER(S) : 993289

LOWER COURT
JUDICIAL OFFICER : N Hennessy, A Britton, K Mapperson

COUNSEL : Mr C Birch SC (Plaintiff)
Mr C Johnstone (Solicitor) (2nd Defendant)

SOLICITORS: Pigott Stinson Ratner Thom (Plaintiff)
IV Knight, Crown Solicitor (Submitting) (1st Defendant)
Public Interest Advocay Centre (2nd Defendant)

CATCHWORDS: ADMINISTRATIVE LAW - certiorari or declaration sought re order of Administrative Decisions Tribunal of New South Wales

LEGISLATION CITED: Local Government Act 1993, s 329
Administrative Decisions Tribunal Act 1997, ss 40, 42, 44.

DECISION: See para 17

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST
DUNFORD J
Thursday, 16 NOVEMBER 2000
30039/00 - KWAI LIN (KARIN) CHEUNG v ADMINISTRATIVE DECISIONS TRIBUNAL OF NEW SOUTH WALES & ANOR
JUDGMENT

1 HIS HONOUR: The plaintiff seeks an order in the nature of certiorari or a declaration in relation to an order of the Administrative Decisions Tribunal ("the Tribunal") extending the time for lodgment by the second defendant of an application under s 329 of the Local Government Act 1993 ("the LG Act") against the plaintiff's election as a councillor of the Ashfield Municipal Council. The relevant election was held on 11 September 1999 and the poll declared on 17 September 1999. It is agreed that the latter is the relevant date. 2 The application was lodged with the Tribunal on 24 December 1999, more than 3 months after the date of the poll, and the Tribunal extended the time for lodgment of the application until that date. 3 The issue depends entirely on the construction of 4 statutory provisions which in logical, rather than numerical, order are s 329 of the LG Act and ss 42, 44 and 40 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 4 Section 329 of the LG Act provides for an application to the Tribunal for an order that a person be dismissed from civic office if there has been any irregularity in the manner in which the person has been elected or appointed to that office, or if the person is disqualified from holding office. 5 Subsection (3) is as follows:-

"Proceedings based on the ground that there has been an irregularity in the manner in which a person has been elected or appointed to civic office may not be more than 3 months after the date of the person's election or appointment to that office."

There is no provision in the section for an extension of…

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.

Keep reading for free

Create a free CaseChat account to read Cheung v Administrative Decisions Tribunal and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] NSWSC 1062
Decision Date: 16 November 2000

CaseChat Overview and Summary

In Cheung v Administrative Decisions Tribunal, the plaintiff sought to challenge an order made by the Administrative Decisions Tribunal of New South Wales. The dispute centred around the tribunal's decision to dismiss an appeal lodged by the plaintiff against an earlier administrative decision. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether the tribunal had acted outside its jurisdiction or made a decision based on an error of law. Specifically, the plaintiff argued that the tribunal had failed to consider relevant evidence and had misapplied the law in reaching its decision. The tribunal, in turn, asserted that it had acted within its jurisdiction and had correctly interpreted and applied the relevant legal principles.

The court held that the tribunal had indeed erred in its consideration of the evidence and the application of the law. The tribunal had failed to give proper weight to the evidence presented by the plaintiff and had misapplied the statutory provisions relevant to the case. As a result, the court granted the plaintiff's application for certiorari, quashing the tribunal's decision and remitting the matter back to the tribunal for reconsideration. The court's decision underscored the importance of tribunals adhering to proper legal and procedural standards when making their determinations.

Orders