Ekermawi v Administrative Decision Tribunal - [2011] NSWSC 1503

Supreme Court

New South Wales

Medium Neutral Citation: Ekermawi v Administrative Decision Tribunal [2011] NSWSC 1503
Hearing dates: 1 December 2011
Decision date: 01 December 2011
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Proceedings commenced by summons of 20 October 2011 is dismissed.
2. The Plaintiff is to pay the Second, Third and Fourth Defendants' costs on the ordinary basis up to and including 9 November 2011 and thereafter on an indemnity basis

Catchwords: ADMINISTRATIVE LAW - appeal from Administrative Decisions Tribunal - whether right of appeal to Supreme Court - appeal from Appeal Panel of ADT - appeal to Court of Appeal.
Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Supreme Court Act 1970
Cases Cited: AVS Group of Companies v Commissioner of Police [2010] NSWCA 81
Ekermawi v Harbour Radio; Ekermawi v Nine Network [2010] NSWADT 145
Ekermawi v Harbour Radio; Ekermawi v Nine Network (No 2) 2010, NSWADT 198
Ekermawi v Harbour Radio, Ekermawi v Nine Network (EOD) [2011] NSWADTAP 44
Category: Principal judgment
Parties: Sam Ekermawi (Plaintiff)
Administrative Decision Tribunal (First Defendant)
Alan Jones (Second Defendant)
Harbour Radio Pty Ltd (Third Defendant)
Nine Network Australia Pty Ltd (Fourth Defendant)
Representation: Sam Ekermawi (Plaintiff - in person)
Submitting appearance (First Defendant)
K Eastman (Second - Fourth Defendants)
Sam Ekermawi (Plaintiff - in person)
Crown Solicitor's Office (First Defendant)
Baker & McKenzie (Second - Fourth Defendants)

File Number(s): 2011/335510
Decision under appeal

Jurisdiction:

9113

Citation:

Ekermawi v Harbour Radio Pty Ltd, Ekermawj v Nine Network Television Pty Ltd [2010] NSWADT 145
Ekermawi v Harbour Radio Pty Ltd & Ekermawi v Nine Network Television Pty Ltd
(No 2) [2010] NSWADT 198

Date of Decision:

2010-06-10 00:00:00

Before:

Chesterman M - Deputy President Kelleghan D - Non-Judicial Member Schneeweiss J - Non-Judicial Member

Judgment

These proceedings commenced by a summons dated 20 October 2011 entitled 'Leave to Appeal Part 50'. They name as Defendants, the Administrative Decisions Tribunal, Alan Jones, Harbour Radio Pty Limited and Nine Network Television Pty Limited.

The Court below is said to be the Administrative Decision Tribunal, the dates of hearing are given as 31 November, 1 and 2 December, 2009 and 21 July 2010. The material dates are said to be 10 June 2010, 4 August 2010. The decision makers are said to be Deputy President Chesterman, Member Kelleghan and Member Schneeweiss.

The orders sought are for leave to extend the time of appeal from the whole of the decision below, that the appeal be allowed, that the judgments of the Court below be set aside, that the matter be remitted to the Administrative Decision Tribunal, and that Alan Jones be joined to the proceedings. The last order appears to be sought on the basis that Mr Jones was not in fact a party in the Administrative Decisions Tribunal.

The Tribunal has filed a submitting appearance. The other Defendants seek by Notices of Motion dated 2 November 2011 to have the proceedings dismissed on the basis that this Court has no jurisdiction…

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.

Keep reading for free

Create a free CaseChat account to read Ekermawi v Administrative Decision Tribunal and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NSWSC 1503
Decision Date: 01 December 2011

CaseChat Overview and Summary

In the case of Ekermawi v Administrative Decision Tribunal, the plaintiff sought to appeal a decision made by the Administrative Decisions Tribunal. The plaintiff, Ekermawi, had applied to the Administrative Decisions Tribunal for a review of an administrative decision, and subsequently, the Appeal Panel of the Tribunal had dismissed the appeal. Ekermawi sought to further appeal this decision to the Supreme Court, arguing that the Tribunal's decision was erroneous or unjust. The primary legal issue before the court was whether Ekermawi had the right to appeal the Tribunal's decision to the Supreme Court.

The court considered the statutory framework governing appeals from the Administrative Decisions Tribunal. The relevant legislation provided that appeals from decisions of the Tribunal could only be made to the Court of Appeal, not directly to the Supreme Court. The court found that the Appeal Panel's decision was a final determination under the relevant legislation and that the Supreme Court did not have jurisdiction to hear an appeal from such a decision. The court emphasised that the statutory scheme established a clear hierarchy of appeals, and any appeal from a decision of the Appeal Panel must follow the prescribed path to the Court of Appeal.

Given the court's determination that the Supreme Court lacked jurisdiction to hear the appeal, the court dismissed Ekermawi's application. The court held that the correct forum for Ekermawi to seek further review of the Tribunal's decision was the Court of Appeal, in accordance with the statutory provisions. This decision underscored the importance of adhering to the statutory procedures for appeals from administrative decisions and highlighted the limited role of the Supreme Court in such matters.

The court's decision reinforces the principle that appeals from the Administrative Decisions Tribunal must follow the specific pathways set out by legislation, and that direct appeals to the Supreme Court are not permissible. The ruling serves as a reminder to litigants and practitioners of the importance of understanding and complying with the statutory framework governing administrative law appeals.

Orders