Duffy v Da Rin

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.