Counsel: C Lambert (Plaintiff) C Mobellan (First and Second Defendants) Solicitors: Self-represented (Plaintiff) Comino Prassas (First and Second Defendants)
T Simon, Principal Member G K Burton SC, Senior Member
File Number(s):
AP 20/33463 (2020/370959)
Judgment
HER HONOUR: This matter involves judicial review of a decision from the NSW Administrative Tribunal involving alleged bias and denial of procedural fairness.
The plaintiff is Mr Godfrey Demarco (“the appellant”). The first defendant is David Macey. The second defendant is Debbie Macey (“the respondents”). They are husband and wife. C Lambert of Counsel appeared for the plaintiff. C Mobellan of Counsel appeared for the respondents. The parties relied on a court book (Ex A(1)-(2)). In addition, the appellant relied upon the transcript before the Appeal Panel (Ex B) and Exhibit 4 before the Tribunal Member (Ex C). The first defendant relied upon his affidavit filed 5 April 2022 (Ex 2).
By summons filed 27 October 2021 the appellant…
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
AGLC
DeMarco v Macey [2022] NSWSC 1348
Case
[2022] NSWSC 1348
Decision Date
CaseChat Overview and Summary
In the case of DeMarco v Macey, the parties involved were DeMarco, the appellant, and Macey, the respondent. The dispute arose from a decision made by the New South Wales Civil and Administrative Tribunal (NCAT) which was being challenged by DeMarco. The matter was heard in the Supreme Court of New South Wales. The appellant argued that the NCAT decision was flawed due to procedural unfairness and potential bias, and that the tribunal had failed to provide him with an opportunity to respond adequately to the respondent’s submissions.
The legal issues before the court were whether the NCAT had erred in its procedural fairness obligations, whether there was actual or apprehended bias in the tribunal's decision-making process, and if the matter should be remitted back to the NCAT for reconsideration. The court was required to examine the evidence and arguments presented to determine if the NCAT's process was fair and impartial. Specifically, the court needed to assess if DeMarco was given a fair opportunity to present his case and if the tribunal members were unbiased in their decision-making.
The court found that the NCAT had indeed failed to observe procedural fairness by not allowing DeMarco to respond adequately to the respondent’s submissions. Additionally, the court identified that there was a real likelihood of bias on the part of one of the tribunal members, which warranted the case being remitted. The tribunal had not sufficiently address these issues, leading to a miscarriage of justice. Consequently, the court decided to remit the matter back to the NCAT to be reconsidered, ensuring that all procedural fairness obligations were met and that there was no risk of bias.