(1) Grant the plaintiff leave to rely upon the further amended statement of claim filed in Court at the hearing.
(2) Grant the plaintiff leave to appeal from the decision of the Appeal Panel delivered on 28 August 2024.
(3) Allow the appeal and set aside the orders made by the Appeal Panel.
(4) Order that the defendants pay the plaintiff’s costs in this Court.
Catchwords:
APPEAL – question of law - Civil and Administrative Tribunal – internal appeal – claim of procedural unfairness – failure of Appeal Panel to identify claim as raising a question of law – application treated as requiring leave – refusal of leave did not mean there was no appeal – plaintiff party to an internal appeal – failure of Appeal Panel to identify appeal before it as of right constituted error on a question of law
[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 Donohoe v Albulario
Sign in free to access the full text
Details
AGLC
Donohoe v Albulario [2025] NSWSC 9
Case
[2025] NSWSC 9
Decision Date
CaseChat Overview and Summary
The appeal in Donohoe v Albulario concerned a dispute between the parties over an internal appeal process within the Civil and Administrative Tribunal (CAT). The appeal was brought by the plaintiff, Donohoe, against the decision of the Appeal Panel of the CAT, which had dismissed an internal appeal on the grounds of procedural unfairness. The issue before the court was whether the Appeal Panel had erred in treating the appeal as one that required leave and ultimately dismissing it for that reason.
The court was required to determine whether the Appeal Panel's failure to identify the appeal as one of right constituted an error of law. Specifically, the court needed to consider whether the plaintiff was entitled to appeal the Panel's decision as a matter of right, rather than one that required leave. The court also considered whether the Appeal Panel's failure to identify the appeal correctly had any impact on the outcome of the appeal.
The court found that the Appeal Panel had erred in treating the appeal as one that required leave, rather than one of right. The court held that the failure of the Appeal Panel to identify the appeal correctly constituted an error on a question of law. The court further held that the error did not render the appeal invalid, but rather meant that the Appeal Panel's decision should be set aside and remitted to the CAT for rehearing. The court concluded that the plaintiff was entitled to an internal appeal as a matter of right, and that the Appeal Panel's failure to identify the appeal correctly had no bearing on the outcome of the appeal.
The court ordered that the Appeal Panel's decision be set aside and remitted to the CAT for rehearing. The court further ordered that the CAT consider the appeal on its merits, without regard to any requirement for leave. The court did not make any orders as to costs.