Cocks v O'Malley - [2006] NSWADT 150

CITATION: Cocks v O'Malley [2006] NSWADT 150

DIVISION: General Division

PARTIES: APPLICANT
Neil Cocks
RESPONDENT
Michael David O'Malley

FILE NUMBER: 053397

HEARING DATES: 13/03/06

SUBMISSIONS CLOSED: 03/13/2006

DATE OF DECISION:
05/22/2006

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Jurisdiction

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Rules (Transitional) Regulation 1998
Environmental Planning and Assessment Regulation 2000
Interpretation Act 1987

CASES CITED: Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151
Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212 (20 August 2003)
New South Wales Bar Association v Sahade [2004] NSWADT 151 (27 July 2004)

REPRESENTATION:
APPLICANT
A Grey, solicitor
RESPONDENT
T Howard, counsel

ORDERS: The application by the respondent to dismiss the application for lack of jurisdiction is dismissed; Directions; 1. The applicant is to file and serve any further evidence and submissions in support of the application within 28 days of the date of these reasons; 2. The respondent is to file and serve any further evidence and submissions in reply within a further 28 days; 3. The Registrar will arrange a date for hearing suitable to the Tribunal and the parties.

Introduction

1 The issue dealt with in this judgment is whether the applicant has lodged an application for a disciplinary finding against the respondent within the statutory time limit allowed for the filing of such an application. On 11 November 2005, Mr Neil Cocks, Director Building Professionals Branch, Department of Planning, applied to the Tribunal for certain disciplinary findings to be made against Mr Michael O’Malley who is an accredited certifier. Under the Administrative Decisions Tribunal Act 1997 (ADT Act), a person may apply to the Tribunal for a disciplinary finding (which is an “original” decision under the ADT Act) if the application is made within the time prescribed by the rules of the Tribunal, or by or under the enactment under which the application is made: ADT Act, s 42(b). The enactment under which the application was made is the Environmental Planning and Assessment Act 1979 (EP&A Act). That Act does not prescribe any time limit for the making of an application to the Tribunal for a disciplinary finding. However the rules of the Tribunal require that an application be made “within 28 days from the day on which the applicant became entitled under the enactment to make the application”: Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 (ADT Rules), cl 14(3).

2 The respondent submitted that the event that triggers an accreditation body’s entitlement to make an application is the completion of an investigation. According to the respondent that date was 21 May 2004 when the State Assessment Committee (SAC) made its recommendations to the applicant with respect to the complaint. The applicant submits that the relevant date is the date the applicant decided to apply to the Tribunal for a disciplinary finding. That date was 17 October 2005 and 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: [2006] NSWADT 150
Decision Date: 05/22/2006

CaseChat Overview and Summary

In the matter of Cocks v O'Malley, the Federal Circuit and Family Court of Australia was tasked with determining the jurisdictional scope of its authority in relation to a particular application. The applicant sought a specific remedy from the court, while the respondent contested the court's ability to grant such a remedy, arguing that it lacked jurisdiction. The nature of the dispute centred around the interpretation and application of jurisdictional principles within the context of the court's statutory framework.

The primary legal issue before the court was whether it had the requisite jurisdiction to hear and determine the applicant's application. The respondent argued that the court was without jurisdiction due to certain statutory limitations or the specific nature of the relief sought. The court needed to examine the relevant legislation and case law to ascertain whether the application fell within the court's jurisdictional boundaries.

After considering the submissions from both parties and the relevant legal authorities, the court found that it did indeed possess the necessary jurisdiction to hear and determine the application. The court reasoned that the statutory provisions and precedents supported its authority to grant the relief sought by the applicant. Consequently, the court dismissed the respondent's application to dismiss the case for lack of jurisdiction. The court then issued directions for the parties to file and serve any further evidence and submissions within specified timeframes, and scheduled a hearing date.

Orders

Orders of the court

The application by the respondent to dismiss the application for lack of jurisdiction is dismissed; Directions; 1. The applicant is to file and serve any further evidence and submissions in support of the application within 28 days of the date of these reasons; 2. The respondent is to file and serve any further evidence and submissions in reply within a further 28 days; 3. The Registrar will arrange a date for hearing suitable to the Tribunal and the parties.

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:	Cocks v O'Malley [2006] NSWADT 150
DIVISION:	General Division
PARTIES:	APPLICANT Neil Cocks RESPONDENT Michael David O'Malley
FILE NUMBER:	053397
HEARING DATES:	13/03/06
SUBMISSIONS CLOSED:	03/13/2006
DATE OF DECISION:	05/22/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Environmental Planning and Assessment Regulation 2000 Interpretation Act 1987
CASES CITED:	Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212 (20 August 2003) New South Wales Bar Association v Sahade [2004] NSWADT 151 (27 July 2004)
REPRESENTATION:	APPLICANT A Grey, solicitor RESPONDENT T Howard, counsel
ORDERS:	The application by the respondent to dismiss the application for lack of jurisdiction is dismissed; Directions; 1. The applicant is to file and serve any further evidence and submissions in support of the application within 28 days of the date of these reasons; 2. The respondent is to file and serve any further evidence and submissions in reply within a further 28 days; 3. The Registrar will arrange a date for hearing suitable to the Tribunal and the parties.