Duffy v Da Rin

Case [2014] NSWCA 270

Court of Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Duffy v Da Rin [2014] NSWCA 270
Hearing dates:1 July 2014
Decision date: 15 August 2014
Before: Basten JA at [1];
Meagher JA at [69];
Ward JA at [70]
Decision:

(1) Set aside order 1 made by the Administrative Decisions Tribunal on 9 December 2013, ordering that Mr Duffy be dismissed from the civic office of Councillor, Orange City Council.

(2) Set aside the order of the Civil and Administrative Tribunal (NCAT) made on 10 June 2014, ordering that Mr Duffy pay Mr Da Rin's costs from 12 March 2013 as agreed or assessed.

(3) Remit the matter to NCAT with a direction that the application be dismissed and to consider any application for consequential orders.

(4) Order the respondent to pay the appellant's costs in this Court.

(5) Direct that, if filing fees have been paid with respect to the summons seeking to review the decision of NCAT made on 10 June 2014 with respect to the costs of the proceedings in the Tribunal, the fees be remitted to the appellant.

(6) In the event of an application by the respondent, grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - relevant and irrelevant considerations - need to consider purpose for which said to be relevant - statement of principle in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 discussed

LOCAL GOVERNMENT - elections - application to tribunal to dismiss councillor for irregularity in manner of election - councillor alleged not to have been a "resident" at the time of nomination - councillor had relocated to local government area shortly before nominating - order to dismiss councillor made by tribunal for failure to comply with residency requirements - whether tribunal misunderstood nature of inquiry - meaning of "place of living" - whether tribunal impermissibly relied upon subjective considerations when determining "place of living" - whether tribunal erred in determining "place of living" by reference to other places of living - Local Government Act 1993 (NSW), ss 269, 329

PRACTICE AND PROCEDURE - costs - parties to bear own costs in proceedings unless ordered otherwise - power of former Administrative Decisions Tribunal to order costs if satisfied "that it is fair to do so" - Administrative Decisions Tribunal replaced by Civil and Administrative Tribunal (NCAT) - NCAT ordered costs in favour of the respondent - whether a right of appeal exists against the costs - Administrative…

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AGLC
Duffy v Da Rin [2014] NSWCA 270
Case
[2014] NSWCA 270
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Court of Appeal of New South Wales by Mr Duffy against orders made by the Administrative Decisions Tribunal (ADT) and subsequently the Civil and Administrative Tribunal (NCAT). The dispute arose from an application to the ADT to dismiss Mr Duffy from his civic office as Councillor for Orange City Council, on the grounds that he was not a "resident" of the local government area at the time of his nomination, thereby failing to comply with residency requirements under the *Local Government Act 1993* (NSW). The ADT had made an order dismissing Mr Duffy, and NCAT had subsequently made an order regarding costs.

The primary legal issues before the Court of Appeal were whether the ADT had misunderstood the nature of its inquiry when determining Mr Duffy's "place of living" and whether it had impermissibly relied upon subjective considerations or erred by referencing other places of living. Additionally, the court considered whether a right of appeal existed against the costs order made by NCAT, given the ADT's former powers to order costs if it was satisfied that it was fair to do so. The court also had to determine whether the ADT had failed to consider relevant considerations or had considered irrelevant ones in reaching its decision, referencing the principles established in *Minister for Aboriginal Affairs v Peko-Wallsend Ltd*.

The Court of Appeal found that the ADT had erred in its determination of Mr Duffy's "place of living" by applying an incorrect legal standard and by impermissibly considering irrelevant factors. The court held that the ADT had misunderstood the nature of the inquiry, particularly concerning the meaning of "resident" and "place of living" under the *Local Government Act 1993*. The court reasoned that the ADT's approach involved an erroneous application of the law, leading to an incorrect conclusion regarding Mr Duffy's residency. Consequently, the court set aside the ADT's order dismissing Mr Duffy and the subsequent costs order made by NCAT.

The Court of Appeal ordered that the ADT's order dismissing Mr Duffy from his civic office be set aside, and that the costs order made by NCAT in favour of the respondent also be set aside. The matter was remitted to NCAT with a direction that the application be dismissed, and NCAT was to consider any consequential orders. The respondent was ordered to pay the appellant's costs in the Court of Appeal, with provisions for the remission of filing fees and a certificate under the *Suitors' Fund Act 1951* (NSW) if an application was made by the respondent.

Orders

Orders of the court

(1) Set aside order 1 made by the Administrative Decisions Tribunal on 9 December 2013, ordering that Mr Duffy be dismissed from the civic office of Councillor, Orange City Council.

(2) Set aside the order of the Civil and Administrative Tribunal (NCAT) made on 10 June 2014, ordering that Mr Duffy pay Mr Da Rin's costs from 12 March 2013 as agreed or assessed.

(3) Remit the matter to NCAT with a direction that the application be dismissed and to consider any application for consequential orders.

(4) Order the respondent to pay the appellant's costs in this Court.

(5) Direct that, if filing fees have been paid with respect to the summons seeking to review the decision of NCAT made on 10 June 2014 with respect to the costs of the proceedings in the Tribunal, the fees be remitted to the appellant.

(6) In the event of an application by the respondent, grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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