Dismiss the summons filed on 26 July 2024, with costs.
Catchwords:
APPEALS — Leave to appeal — Where statutory right to appeal confined to “a question of law” — Where applicants contend that the application for leave to appeal is brought under “a question of fact, law and jurisdiction” — Where no error or question of law is clearly identified
ADMINISTRATIVE LAW — Supervisory jurisdiction — Where summons also sought certiorari for error of law on the face of the record — Conduct of judicial review refused where applicants also sought leave to appeal
M Harrowell, Deputy President G Sarginson, Senior Member
File Number(s):
2024/155225
JUDGMENT
THE COURT: On 26 July 2024, the applicants filed a summons seeking leave to appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The effect of that provision is that a party to an Appeal Panel decision may appeal to the Supreme Court on a question of law, but only with leave granted by the Court. The summons relates to a decision dated 28 June 2024 by an Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT) (see Dokas v Gallagher [2024] NSWCATAP 129) (“AP Decision”). In brief, the Appeal Panel dismissed the applicants’ appeal against an earlier NCAT decision dated 27 March 2024 by General…
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
Dokas v Gallagher (No 2) [2024] NSWCA 236
Case
[2024] NSWCA 236
Decision Date
CaseChat Overview and Summary
The applicants, Dokas and Gallagher, sought leave to appeal from a decision of the primary judge. The dispute concerned the applicants' contention that their application for leave to appeal was brought under a question of "fact, law and jurisdiction," while the statutory right to appeal was confined to a "question of law." The matter came before the Court of Appeal of New South Wales, constituted by Kirk JA and Griffiths AJA.
The primary legal issues before the Court of Appeal were whether the applicants had identified a clear error or question of law sufficient to ground an application for leave to appeal under the relevant statutory provisions, and whether the Court should exercise its supervisory jurisdiction to grant certiorari for an alleged error of law on the face of the record, particularly when an application for leave to appeal was also being pursued.
The Court reasoned that the applicants had failed to clearly identify any error or question of law that would permit an appeal under the statutory limitation. Consequently, the Court determined that the application for leave to appeal was not properly before it. Furthermore, the Court declined to exercise its supervisory jurisdiction for judicial review, noting that the applicants were simultaneously seeking leave to appeal, which indicated a preference for the appellate route rather than a separate supervisory intervention.
The summons filed on 26 July 2024 was dismissed, with costs awarded to the respondent.
Orders
Orders of the court
Dismiss the summons filed on 26 July 2024, with costs.