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DWZ v Wandiyali

DWZ v Wandiyali

Case [2019] NSWCATAD 190 10 September 2019

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DWZ v Wandiyali [2019] NSWCATAD 190
Hearing dates: 15 August 2019
Date of orders: 10 September 2019
Decision date: 10 September 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
Decision:
(1) The Tribunal refuses the application to extend time for the filing of the Administrative Review application filed on 17 June 2019.
(2) The application for Administrative Review filed 17 June 2019 is dismissed.

Catchwords: ADMINISTRATIVE LAW- whether to extend time for filing of an administrative review application – where no fairly arguable case – where no substantial merit in the applicant’s case for review.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children and Young Persons (Care and Protection) Regulation 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028
BKW v Department of Family and Community Services [2014] NSWCATAD 205
Jackson v Land and Housing Corporation [2014] NSWCATAP 22
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32
Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53
The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48
Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61
YG & GG v Minister for Community Services [2002] NSWCA 247
ZHA v ZGZ [2018] NSWCATAP 249
Texts Cited: None cited
Category: Consequential orders (other than Costs)
Parties: DWZ (Applicant)
Wandiyali (Respondent)
Representation: Solicitors:
Applicant (Self Represented)
Care Legal (Respondent)

File Number(s): 2019/00187464
Publication restriction: Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013 a person must not, except with the consent of the Tribunal, whether before or after the proceedings are disposed of, publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal.Note that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

The applicant seeks a review of a decision where a child was removed from her care on 6 March 2019. The respondent removed responsibility for the daily care and control of the child from the applicant. On that date the child was placed in an alternative placement with an authorised kinship carer.
The Tribunal has jurisdiction to hear administratively reviewable decisions by reason of subsections 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). The decision which was made falls within the…

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 DWZ v Wandiyali

Details

AGLC: DWZ v Wandiyali [2019] NSWCATAD 190
Case: [2019] NSWCATAD 190
Decision Date: 10 September 2019

CaseChat Overview and Summary

In the Federal Court of Australia, DWZ filed an application for an extension of time to bring a review of a decision made by the Minister for Immigration. The respondent, Wandiyali, argued that the application should be dismissed as it had no reasonable prospect of success and there was no substantial merit in the case for review. The court was required to determine whether to grant the applicant an extension of time and, if so, under what conditions. The central issue before the court was whether the application for an extension of time should be granted when there was no fairly arguable case and no substantial merit in the applicant's case for review.

The court considered the relevant statutory provisions and jurisprudence on the matter. It emphasised that the power to extend time was not to be exercised lightly and was only appropriate where there was a prospect of success or substantial merit in the case. The court found that the applicant's case lacked both these elements. The court held that the applicant had not demonstrated any reasonable prospects of success or substantial merit in the case for review. Accordingly, the court dismissed the application for an extension of time.

The court's reasoning was grounded in the statutory framework and the principles established by previous case law. The court found that the application did not meet the stringent criteria for an extension of time and that the applicant had not provided sufficient grounds to warrant a departure from the usual rules. Consequently, the court concluded that the application should be dismissed. The court did not grant the applicant an extension of time and dismissed the application for review.

Orders

Orders of the court

20.

” is contained in section 6 (1) of the Administrative Decisions Review Act and includes the following:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

DWZ v Wandiyali [2019] NSWCATAD 190

Most Recent Citation

Howard v NSW Ministry of Health [2022] NSWCATAD 241

Cases citing this decision · 3 of 3 shown

GBW v Barnardos Australia
[2024] NSWCATAD 168 Para 34

…It was considered in DWZ v Wandiyali [2019] NSWCATAD 190 that an application 9 to 10 weeks out of time was a significant and substantial delay having regard to the nature of the application and where timely applications are required in the best interests of the child. Even a short delay may have a significant impact o…
Ugur v Public Guardian
[2022] NSWCATAD 279 Para 35

…e is "fairly arguable" and instead demonstrate their case has "substantial merit" in order for an extension of time to be granted. In DWZ v Wandiyali [2019] NSWCATAD 190 Senior Member Anderson stated at paragraph [61]:…
Howard v NSW Ministry of Health
[2022] NSWCATAD 241 Para 61

…is "fairly arguable" and instead demonstrate their case has "substantial merit" in order for an extension of time to be granted: see DWZ v Wandiyali [2019] NSWCATAD 190 (DWZ) at [61] and Singh v Fobupu Pty Ltd [2019] NSWCATAP 111 at [58].…

View all 3 citing cases →

Cases cited in this decision · 9 of 9 shown

BKW v Department of Family and Community Services
[2014] NSWCATAD 205 Para 36

…In BKW v Department of Family and Community Services [2014] NSWCATAD 205, at [18] and [34] it was held that time limits should generally be strictly enforced unless the interests of justice require an extension to be granted, and in that matter a delay of 6 weeks was considered a substantial delay in proceedings of th…
AQY & AQZ v Administrative Decisions Tribunal of New South Wales
[2013] NSWSC 1028 Para 16

…ion to the Administrative Decisions Tribunal, but now exercised by this Tribunal, in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 at [20]:…
Molyneux v Chief Commissioner of State Revenue
[2012] NSWADTAP 53 Para 37

…v Palasty (No 2) [2007] NSWCA 369; (2007) 71NSWLR 61 at [14] per Hodgson JA, Ipp JA agreeing at [17]; Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58], [59]; ZHA v ZGZ [2018] NSWCATAP 249 at [44]. The Tribunal agrees with the submission and the authorities cited in support of that contention…
Kostas v HIA Insurance Services Pty Ltd
[2010] HCA 32 Para 14

…tters without regard to technicalities or legal forms: section 38 Civil and Administrative Tribunal Act ; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and o…
PR v Department of Community Services
[2009] NSWADT 277

…tisfy the statutory language of s83(8). Something more is required. With great respect, I am of the view that PR v Department of Community Services [2009] NSWADT 277 remains correct in its analysis. It is necessary to my mind that a particular proposal, aspect or requirement of the permanency plan is picked up and e…
Tomko v Palasty (No 2)
[2007] NSWCA 369

…he Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 YG & GG v Minister for Community Services [2002] NSWCA 247 ZHA v ZGZ [2018] NSWCATAP 249 Texts Cited: None cited Category: Consequential orders (other than C…
YG & GG v Minister for Community Services
[2002] NSWCA 247 Para 26

…al which may not have been before the decision maker: section 63 Administrative Decisions Review Act 1997 ; YG v GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].…
The Mutual Life and Citizens' Assurance Company Ltd v Attorney General (Qld) & anor
[1961] HCA 51 Para 21

…it has no jurisdiction. There is a duty not to hear such cases: The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48.…
ZHA v ZGZ
[2018] NSWCATAP 249 Para 37

…1NSWLR 61 at [14] per Hodgson JA, Ipp JA agreeing at [17]; Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58], [59]; ZHA v ZGZ [2018] NSWCATAP 249 at [44]. The Tribunal agrees with the submission and the authorities cited in support of that contention.…

Legislation cited in this decision · 7

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 26)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
1 mention (from Para 2)
Civil and Administrative Rules 2014 (NSW)
1 mention (from Para 14)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 6)
Civil and Administrative Tribunal Rules 2014 (NSW)
1 mention (from Para 6)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
1 mention (from Para 2)
Evidence Act 1995 (Cth)
1 mention (from Para 14)

Medium Neutral Citation:	DWZ v Wandiyali [2019] NSWCATAD 190
Hearing dates:	15 August 2019
Date of orders:	10 September 2019
Decision date:	10 September 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	(1) The Tribunal refuses the application to extend time for the filing of the Administrative Review application filed on 17 June 2019. (2) The application for Administrative Review filed 17 June 2019 is dismissed.
Catchwords:	ADMINISTRATIVE LAW- whether to extend time for filing of an administrative review application – where no fairly arguable case – where no substantial merit in the applicant’s case for review.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 BKW v Department of Family and Community Services [2014] NSWCATAD 205 Jackson v Land and Housing Corporation [2014] NSWCATAP 22 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 YG & GG v Minister for Community Services [2002] NSWCA 247 ZHA v ZGZ [2018] NSWCATAP 249
Texts Cited:	None cited
Category:	Consequential orders (other than Costs)
Parties:	DWZ (Applicant) Wandiyali (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Care Legal (Respondent)
File Number(s):	2019/00187464
Publication restriction:	Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013 a person must not, except with the consent of the Tribunal, whether before or after the proceedings are disposed of, publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal.Note that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.