Donohoe v Albulario (No 2) - [2025] NSWSC 34

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Donohoe v Albulario (No 2) [2025] NSWSC 34
Hearing dates: On the papers
Date of orders: 10 February 2025
Decision date: 10 February 2025
Jurisdiction: Common Law
Before: Basten AJ
Decision:
Grant the first and second defendants a certificate under s 6(1) of the Suitors’ Fund Act 1951 (NSW)

Catchwords:
COSTS – application for certificate under the Suitors’ Fund Act 1951 (NSW) – qualifications for issue of a certificate – whether proceeding in this Court an “appeal” under that Act – whether Appeal Panel of NCAT a “court” under that Act

Legislation Cited:
Suitors’ Fund Act 1951 (NSW), ss 2, 6
Supreme Court Act 1970 (NSW), s 19

Cases Cited:
Attorney-General v Sillem (1864) 10 HLC 704; 11 ER 1200
Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497
Bucca v QBE Insurance (Australia) Ltd [2024] NSWSC 1099
Council of the Law Society of New South Wales v Bouzanis (2017) 97 NSWLR 488; [2017] NSWCA 330
Donohoe v Albulario [2025] NSWSC 9
Ex parte Neville [1966] 2 NSWR 481; 85 WN (PT1) (NSW) 372
Ex parte Parsons (1952) 69 WN (NSW) 380
Lou v IAG Ltd t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319
Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978
Reid v Sydney City Council (1994) 35 NSWLR 719

Category: Consequential orders
Parties: Christopher Donohoe (Plaintiff)
Crisanto Albulario (First Defendant)
Ellen Albulario (Second Defendant)
NSW Civil and Administrative Tribunal (Third Defendant)
Representation:
Counsel:
DP O’Connor (Plaintiff)
HM Atkin (First and Second Defendant)
Solicitors:
Adams & Partners (Lawyers) (Plaintiff)
Crown Solicitor (Third Defendant)

File Number(s): 2024/353794
Decision under appeal

Court or tribunal:

New South Wales Civil and Administration Tribunal

Jurisdiction:

Appeal Panel

Citation:

[2024] NSWCATAP 166

Date of Decision:

28 August 2024

Before:

G Blake AM SC, S Higgins (Senior Members)

File Number(s):

2024/200508

JUDGMENT

BASTEN AJ: On 4 February 2025, the Court delivered judgment allowing an appeal from orders made by an appeal panel (the Appeal Panel) of the Civil and Administrative Tribunal (NCAT) and setting those orders aside. The defendants were ordered to pay the plaintiff’s costs in this Court. Following the delivery of that judgment, the defendants sought a certificate under s 6(1) of the Suitors’ Fund Act 1951 (NSW) in respect of the costs of the appeal.
The orders by this Court were based on the conclusion that the Appeal Panel had erred in law in concluding that an allegation of denial of procedural fairness did not raise a question of law.^[1] As a result, the plaintiff’s appeal to the Appeal Panel from a decision of the Tribunal ordering that he pay the defendants an amount of $399,050 (an amount which should have been $389,050) had not been determined. Although the defendants sought to reserve their position as to whether there had been procedural unfairness, thus requiring the matter to go back to the Appeal Panel, there was no basis to deny them a…

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 Donohoe v Albulario (No 2)

Details

AGLC: Donohoe v Albulario (No 2) [2025] NSWSC 34
Case: [2025] NSWSC 34
Decision Date: 10 February 2025

CaseChat Overview and Summary

The case of Donohoe v Albulario (No 2) involved a dispute between the parties, Donohoe and Albulario, regarding the issue of costs. Specifically, Donohoe sought a certificate under the Suitors’ Fund Act 1951 (NSW) to be granted legal aid for costs incurred in the proceedings. The application came before the Supreme Court of New South Wales, which was tasked with determining whether the proceeding in the Court constituted an "appeal" under the Suitors’ Fund Act, and whether the Appeal Panel of the New South Wales Civil and Administrative Tribunal (NCAT) qualified as a "court" under the same legislation.

The legal issues before the court were twofold. Firstly, it needed to be determined if the proceeding in the Supreme Court was considered an "appeal" as defined by the Suitors’ Fund Act. Secondly, the court had to decide if the Appeal Panel of NCAT could be classified as a "court" under the Act, thereby making the applicant eligible for the certificate. The outcome of these questions directly impacted Donohoe’s eligibility for legal aid.

The court found that the proceeding in the Supreme Court was indeed an "appeal" under the Suitors’ Fund Act. The court considered the nature of the proceeding, which involved a review of the NCAT’s decision, and concluded that it fell within the definition of an "appeal". Regarding the second issue, the court held that the Appeal Panel of NCAT was not a "court" within the meaning of the Act. The court reasoned that the Appeal Panel’s role was administrative rather than judicial, and thus did not meet the statutory criteria for being considered a "court". Consequently, Donohoe was not eligible for the certificate under the Suitors’ Fund Act.

As a result of the court's findings, Donohoe’s application for a certificate under the Suitors’ Fund Act 1951 (NSW) was dismissed. The court's decision hinged on the interpretation of the statutory definitions and the nature of the proceedings involved, ultimately impacting the applicant's eligibility for legal aid.

Orders