DeMarco v Macey

Case [2022] NSWSC 1348


Supreme Court


New South Wales

Medium Neutral Citation: DeMarco v Macey [2022] NSWSC 1348
Hearing dates: 24 June 2022
Date of orders: 5 October 2022
Decision date: 05 October 2022
Jurisdiction:Common Law
Before: Harrison AsJ
Decision:

(1) Leave to extend the time to file the summons up to and including 27 October 2021 is granted.

(2) Leave is granted to appeal.

(3) The decision of the Appeal Panel dated 28 September 2021 is set aside.

(4) The matter is remitted to a differently constituted Appeal Panel according to law.

(5) The defendants are to pay the plaintiff’s costs.

Catchwords:

ADMINISTRATIVE LAW – Judicial Review of NCAT decision –Self-Represented Litigants – Denial procedural fairness – Actual or Apprehended bias – Matter remitted

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW) s 83(1)

Cases Cited:

Antonio Di Liristi v NSW Public Trustee and Anor [2021] NSWSC 1347

BHP Billiton Ltd v Dunning [2013] NSWCA 421

Choi v Secretary, Department of Justice and Communities [2022] NSWCA 172

Collier v Country Women’s Association of New South Wales [2018] NSWCA 36

Collins v Urban [2014] NSWCATAP 17

Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577

Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240

Galea v Galea (1990) 19 NSWLR 263

Isbester v Knox City Council [2015] HCA 20: 255 CLR 135

Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68

Polsen v Harrison [2021] NSWCA 23

R v Watson; Ex parte Armstrong [1976] HCA 39; 136 CLR 248

Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141

VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; 131 FCR 102

Wootten v Godfrey [2019] NSWCATAP 255

Category:Procedural rulings
Parties: Godfrey DeMarco (Plaintiff)
David Macey (First Defendant)
Debbie Macey (Second Defendant)
Representation: Counsel:
C Lambert (Plaintiff)
C Mobellan (First and Second Defendants)
Solicitors:
Self-represented (Plaintiff)
Comino Prassas (First and Second Defendants)
File Number(s): 2021/304835
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
NSW Civil and Administrative Tribunal
Jurisdiction:
Appeal Panel
Citation:

[2021] NSWCATAP 291

Date of Decision:
28 September 2021
Before:
T Simon, Principal Member
G K Burton SC, Senior Member
File Number(s):
AP 20/33463 (2020/370959)

Judgment

  1. HER HONOUR: This matter involves judicial review of a decision from the NSW Administrative Tribunal involving alleged bias and denial of procedural fairness.

  2. 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).

  3. By summons filed 27 October 2021 the appellant…

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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.

Orders

Orders of the court

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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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