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DEF v Trappett

DEF v Trappett

Case [2017] NSWCA 163 4 July 2017

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DEF v Trappett [2017] NSWCA 163
Hearing dates: 19 June 2017
Decision date: 04 July 2017
Before: Beazley ACJ;
Simpson JA;
Sackville AJA
Decision:
1. Confirm order made 19 June 2017 refusing leave to appeal;
2. No order as to costs.
Catchwords: APPEALS – leave to appeal – application for judicial review of decision of private body – applicant alleged denial of procedural fairness – relevance of review process which may “cure” any failure to afford procedural fairness in the initial determination
Cases Cited: Agricultural Societies Council of New South Wales v Christie [2016] NSWCA 331
Australian Football League v Carlton [1998] 2 VR 546
Calvin v Carr [1979] 1 NSWLR 1
Collier v Lancer (No 2) [2013] NSWCA 186
Hill v Green; Jarvis v Buckley; Wood v Buckley; Young v Buckley (1999) 48 NSWLR 161; [1999] NSWCA 477
La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2015] NSWCA 254
Lee v New South Wales Crime Commission [2012] NSWCA 262
Mitchell v Royal New South Wales Canine Council (2001) 52 NSWLR 242; [2001] NSWCA 162
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22
Rodi v Gelonesi [2012] NSWCA 424
Twist v Randwick Municipal Council (1976) 136 CLR 106
Category: Principal judgment
Parties: DEF (Applicant)
Scott Trappett (First Respondent)
Dan-Phuong Nguyen (Second Respondent)
Mark Eustance (Third Respondent)
The Hon John Dunford QC (Fourth Respondent)
The Most Reverend Archbishop Mark Coleridge (Fifth Respondent)
Representation:
Counsel:
W Muddle SC; M McAuley (Applicant)
R P L Lancaster SC; T J Boyle (Third Respondent)
P Skinner (Fifth Respondent)
Solicitors:
McAuley Hawach Lawyers (Applicant)
Unsworth Legal (First, Second, Third and Fourth Respondents)
Mullins Lawyers (Brisbane) by their agents Carroll & O’Dea Lawyers (Fifth Respondent)

File Number(s): 2016/381736
Decision under appeal

Court or tribunal:

Supreme Court

Citation:

[2016] NSWSC 1698

Date of Decision:

2 December 2016

Before:

Beech-Jones J

File Number(s):

2014/374692

Judgment

THE COURT: On 2 December 2016, Beech-Jones J dismissed proceedings brought by the applicant, who is a Catholic priest in the Brisbane Diocese, against the respondents for declaratory and injunctive relief in respect of an assessment process (the Assessment Report) undertaken in accordance with a procedure entitled Towards Healing. Towards Healing encompasses the “principles and procedures in responding to complaints of abuse against personnel of the Catholic Church in Australia”.
The defendants to the action brought by the applicant were: the two assessors appointed pursuant to the Towards Healing protocol (the first and second defendants); the Director of the Office of Professional Standards (Queensland) Catholic Church (the third defendant); the chairperson of the National Review Panel (the fourth defendant); and the Catholic Archbishop of Brisbane (the fifth defendant). At the hearing at first instance, the first to fourth defendants had the same legal representation. The fifth defendant was separately represented.
The applicant’s claim against the defendants, in essence, was that he had…

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 DEF v Trappett

Details

AGLC: DEF v Trappett [2017] NSWCA 163
Case: [2017] NSWCA 163
Decision Date: 04 July 2017

CaseChat Overview and Summary

The applicant, DEF, sought leave to appeal from a decision of the Supreme Court of New South Wales, which had refused to grant leave to appeal from a decision of a private body. The dispute concerned allegations by DEF that it had been denied procedural fairness in the initial determination made by the private body.

The central legal issue before the Court of Appeal was whether the availability of a subsequent review process, which might have the capacity to remedy any procedural unfairness in the initial determination, was a relevant consideration in determining whether to grant leave to appeal from a decision refusing judicial review of that initial determination.

The Court of Appeal confirmed the order made by the primary judge refusing leave to appeal. The Court reasoned that the availability of a review process that could cure any defect in the initial decision was a significant factor in assessing whether there was a “fairly arguable” case for leave to appeal. In this instance, the Court found that the prospect of a complete review of the merits of the decision meant that the applicant had not demonstrated a fairly arguable case for leave to appeal.

Accordingly, the Court of Appeal confirmed the order refusing leave to appeal and made no order as to costs.

Orders

Orders of the court

1. Confirm order made 19 June 2017 refusing leave to appeal;

2. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

DEF v Trappett [2017] NSWCA 163

Most Recent Citation

Live Group Pty Ltd v Rabbi Ulman [2017] NSWSC 1759

Cases Citing This Decision

Emde v State of New South Wales [2025] NSWCA 41
Citation 1 (Para 24)

…ollier v Lancer (No 2) [2013] NSWCA 186 at [7] (citations omitted); see also Rodi v Gelonesi [2012] NSWCA 424 at [24]; DEF v Trappett [2017] NSWCA 163 at [25]. There are no ‘rigid and exhaustive criteria’ as the ‘circumstances of different cases are infinitely various’: Adam P Brown Male Fashions Pty Ltd v Philip M…
State of New South Wales v Meredith [2024] NSWCA 287
Citation 2 (Para 24)

…Collier v Lancer (No 2) [2013] NSWCA 186 at [7] (citations omitted); see also Rodi v Gelonesi [2012] NSWCA 424 at [24]; DEF v Trappett [2017] NSWCA 163 at [25]. There are no “rigid and exhaustive criteria” as the “circumstances of different cases are infinitely various”: Adam P Brown Male Fashions Pty Ltd v Philip…
Michael Wilson & Partners v Emmott [2024] NSWCA 269
Citation 3 (Para 24)

…Collier v Lancer (No 2) [2013] NSWCA 186 at [7] (citations omitted); see also Rodi v Gelonesi [2012] NSWCA 424 at [24]; DEF v Trappett [2017] NSWCA 163 at [25]. There are no “rigid and exhaustive criteria” as the “circumstances of different cases are infinitely various”: Adam P Brown Male Fashions Pty Ltd v Philip…
Press v iSam Securities (UK) Ltd [2024] NSWCA 260
Citation 4 (Para 24)

…Collier v Lancer (No 2) [2013] NSWCA 186 at [7] (citations omitted); see also Rodi v Gelonesi [2012] NSWCA 424 at [24]; DEF v Trappett [2017] NSWCA 163 at [25]. There are no “rigid and exhaustive criteria” as the “circumstances of different cases are infinitely various”: Adam P Brown Male Fashions Pty Ltd v Philip…
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Citation 5 (Para 25)

…Collier v Lancer (No 2) [2013] NSWCA 186 at [7] (citations omitted); see also Rodi v Gelonesi [2012] NSWCA 424 at [24]; DEF v Trappett [2017] NSWCA 163 at [25].…
LH v Al Faisal College Limited [2022] NSWSC 1480
Citation 6 (Para 97)

…The College also submitted that the principle referred to in DEF v Trappett [2017] NSWCA 163 at [41] was applicable to the present case, that principle being that it is well recognised that the availability of an appeal or review process may answer any deficiency in procedural fairness that occurred at the initial…
Live Group Pty Ltd v Rabbi Ulman [2017] NSWSC 1759
Citation 7 (Para 84)

…Leave to appeal DEF was refused in DEF v Trappett [2017] NSWCA 163 on grounds separate to the question of jurisdiction. However the Court of Appeal (Beazley ACJ, Simpson JA and Sackville AJA) observed at [55]:…

See all citing cases →

Cases Cited

DEF v Trappett [2016] NSWSC 1698
Citation 1

…Carroll & O’Dea Lawyers (Fifth Respondent) File Number(s): 2016/381736 Decision under appeal Court or tribunal: Supreme Court Citation: [2016] NSWSC 1698 Date of Decision: 2 December 2016 Before: Beech-Jones J File Number(s): 2014/374692…
Agricultural Societies Council of NSW v Christie [2016] NSWCA 331
Citation 2 (Para 4)

…n such decisions, and that his analysis was consistent with this Court’s decision in Agricultural Societies Council of New South Wales v Christie [2016] NSWCA 331 at [186]-[187]. His Honour thus ordered that the proceedings be dismissed.…
La La Land Byron Bay Pty Limited v The Independent Liquor and Gaming Authority [2015] NSWCA 254
Citation 3 (Para 7)

…ns are more abbreviated than is required after a fully contested appeal: La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2015] NSWCA 254 at [8]-[9]. However, as there was extended argument on the question of leave, these reasons are more detailed than is usually required on the determina…
Collier v Lancer (No 2) [2013] NSWCA 186
Citation 4 (Para 25)

…l only be granted where there are substantial reasons to allow an appellate review: Rodi v Gelonesi [2012] NSWCA 424 at [24]; Collier v Lancer (No 2) [2013] NSWCA 186 at [7]. In Lee v New South Wales Crime Commission [2012] NSWCA 262, Bathurst CJ (Macfarlan and Barrett JJA agreeing) said, at [12], that in the usual…
Rodi v Gelonesi [2012] NSWCA 424
Citation 5 (Para 25)

…Leave to appeal will only be granted where there are substantial reasons to allow an appellate review: Rodi v Gelonesi [2012] NSWCA 424 at [24]; Collier v Lancer (No 2) [2013] NSWCA 186 at [7]. In Lee v New South Wales Crime Commission [2012] NSWCA 262, Bathurst CJ (Macfarlan and Barrett JJA agreeing) said, at [12]…
Lee v New South Wales Crime Commission [2012] NSWCA 262
Citation 6 (Para 25)

…ppellate review: Rodi v Gelonesi [2012] NSWCA 424 at [24]; Collier v Lancer (No 2) [2013] NSWCA 186 at [7]. In Lee v New South Wales Crime Commission [2012] NSWCA 262, Bathurst CJ (Macfarlan and Barrett JJA agreeing) said, at [12], that in the usual case:…
GKD v Director of Department of Family & Community Service [2012] NSWCA 219
Citation 7 (Para 10)

…v Sewell [2011] NSWCA 56 at [22]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service [2012] NSWCA 219 at [10]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[34].”…
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Citation 8 (Para 10)

…ombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service [2012] NSWCA 219 at [10]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[34].”…
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Citation 9 (Para 22)

…the primary judge was in error: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Zelden v Sewell [2011] NSWCA 56 at [22]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service [2012] NSWCA 219 at [10]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[34].”…
Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56
Citation 10 (Para 22)

…of going beyond it being reasonably arguable that the primary judge was in error: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Zelden v Sewell [2011] NSWCA 56 at [22]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service [2012] NSWCA 219 at [10]; Be Fina…
Mitchell v Royal New South Wales Canine Council Ltd [2001] NSWCA 162
Citation 11 (Para 4)

…sidered that neither Australian Football League v Carlton [1998] 2 VR 546, nor Mitchell v Royal New South Wales Canine Council (2001) 52 NSWLR 242; [2001] NSWCA 162 expanded the basis on which the courts may intervene in such decisions, and that his analysis was consistent with this Court’s decision in Agricultural…
Re Minister for Immigration and Multicultural Affairs; Ex parte MIAH [2001] HCA 22
Citation 12 (Para 51)

…In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22, the High Court confirmed that, in some circumstances, a court may grant relief in respect of the initial decision-making stage despite the availability of a right of appeal.…
Hill v Green [1999] NSWCA 477
Citation 13 (Para 33)

…third respondent referred to the observation of Fitzgerald JA in Hill v Green; Jarvis v Buckley; Wood v Buckley; Young v Buckley (1999) 48 NSWLR 161; [1999] NSWCA 477, at [157], that “ an adequate right of appeal ordinarily provides the appropriate remedy for a denial of procedural fairness at the stage of an initi…
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Citation 14

…as been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Zelden v Sewell [2011] NSWCA 56 at [22]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service…
Twist v Randwick Municipal Council [1976] HCA 58
Citation 15 (Para 36)

…ral fairness that occurred at the initial hearing or decision making stage. The principle was stated by Mason J in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 in the following terms:…

Legislation Cited

Teaching Services Act 1980 (NSW)
1 mention (from Para 49)

Medium Neutral Citation:	DEF v Trappett [2017] NSWCA 163
Hearing dates:	19 June 2017
Decision date:	04 July 2017
Before:	Beazley ACJ; Simpson JA; Sackville AJA
Decision:	1. Confirm order made 19 June 2017 refusing leave to appeal; 2. No order as to costs.
Catchwords:	APPEALS – leave to appeal – application for judicial review of decision of private body – applicant alleged denial of procedural fairness – relevance of review process which may “cure” any failure to afford procedural fairness in the initial determination
Cases Cited:	Agricultural Societies Council of New South Wales v Christie [2016] NSWCA 331 Australian Football League v Carlton [1998] 2 VR 546 Calvin v Carr [1979] 1 NSWLR 1 Collier v Lancer (No 2) [2013] NSWCA 186 Hill v Green; Jarvis v Buckley; Wood v Buckley; Young v Buckley (1999) 48 NSWLR 161; [1999] NSWCA 477 La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2015] NSWCA 254 Lee v New South Wales Crime Commission [2012] NSWCA 262 Mitchell v Royal New South Wales Canine Council (2001) 52 NSWLR 242; [2001] NSWCA 162 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 Rodi v Gelonesi [2012] NSWCA 424 Twist v Randwick Municipal Council (1976) 136 CLR 106
Category:	Principal judgment
Parties:	DEF (Applicant) Scott Trappett (First Respondent) Dan-Phuong Nguyen (Second Respondent) Mark Eustance (Third Respondent) The Hon John Dunford QC (Fourth Respondent) The Most Reverend Archbishop Mark Coleridge (Fifth Respondent)
Representation:	Counsel: W Muddle SC; M McAuley (Applicant) R P L Lancaster SC; T J Boyle (Third Respondent) P Skinner (Fifth Respondent) Solicitors: McAuley Hawach Lawyers (Applicant) Unsworth Legal (First, Second, Third and Fourth Respondents) Mullins Lawyers (Brisbane) by their agents Carroll & O’Dea Lawyers (Fifth Respondent)
File Number(s):	2016/381736
Decision under appeal	Court or tribunal: Supreme Court Citation: [2016] NSWSC 1698 Date of Decision: 2 December 2016 Before: Beech-Jones J File Number(s): 2014/374692