Irvine v Temora Shire Council - [2025] NSWCATAD 59

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Irvine v Temora Shire Council [2025] NSWCATAD 59
Hearing dates: On the papers
Date of orders: 10 March 2025
Decision date: 10 March 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Riordan, Senior Member
Decision:
(1) I dispense with an oral hearing of the application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
(2) The application is dismissed for lack of jurisdiction.

Catchwords:
Administrative Law – government information - statutory interpretation – meaning of s 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW) – whether Tribunal has jurisdiction to entertain a new application for administrative review of a decision made by the respondent following remittal under s 63(3)(d)

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)

Cases Cited:
Irvine v Temora Shire Council [2024] NSWCATAD 202
Webb v Port Stephens Council [2020] NSWCATAP 152

Texts Cited:
None cited

Category: Principal judgment
Parties: Anthony Irvine (Applicant)
Temora Shire Council (Respondent)
Representation: Applicant (Self-Represented)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/00353322
Publication restriction: Nil

REASONS FOR DECISION

Background

The current proceedings concern an application for administrative review of a decision made by Temora Shire Council (the respondent) on 20 August 2024, under the Government Information (Public Access) Act 2009 (NSW) (the Act) which was lodged by Anthony Irvine (the applicant).
However, that decision was made by the respondent following a remittal order made by the Tribunal on 25 July 2024 (the remittal decision), in previous administrative review proceedings between the applicant and the respondent: Irvine v Temora Shire Council [2024] NSWCATAD 202.
The applicant sought administrative review of the remittal decision on the following grounds:

Please refer case number 2023/00454688.
I believe, when making the new decision as directed by NCAT in orders dated 25^th July, 2024, Temora Shire Council has failed to properly consider the recommendations set out in paragraph 103 of the decision attached. Were I to request an internal review, I have been advised that the review would be conducted by Temora Shire Council General Manager, Melissa Boxall. Based on comments made by Ms Boxall in a media release relative to these matters, I do not believe Ms Boxall would be able to consider the matter impartially or fairly.

On 21 October 2024, Senior Member Ziegler issued orders, which noted that an issue had been raised as to whether the Tribunal has jurisdiction to hear and determine this application. She referred the parties to the decision of the Appeal Panel in Webb v Port Stephens Council [2020] NSWCATAO 152 (Webb), particularly paras [20] to [38]. She ordered the respondent to file and serve submissions on jurisdiction by 18 November 2024. She ordered the applicant to file and serve submissions on this issue by 16 December 2024. She gave the respondent leave to file submissions in reply by 23 December 2024. She also ordered that…

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.

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Details

Case: [2025] NSWCATAD 59
Decision Date: 10 March 2025

CaseChat Overview and Summary

Irvine applied for administrative review of a decision made by the Temora Shire Council. The application was dismissed on the basis that the application was untimely. Following remittal of the matter, Irvine made a second application for review. The council opposed the application on the basis that it was an abuse of process and lacked jurisdiction. The Civil and Administrative Tribunal of New South Wales was required to decide whether it had jurisdiction to hear Irvine’s second application for review. The key issue was whether s 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW) precluded the Tribunal from entertaining a new application for administrative review of the decision.

In determining this, the Tribunal considered that the purpose of remittal was to allow the decision-maker to make a decision in accordance with the law, and not to give the applicant an opportunity to re-litigate the matter. The Tribunal also considered that allowing a second application would be an abuse of process, given that the same evidence and arguments were likely to be presented. Accordingly, the Tribunal held that it did not have jurisdiction to hear Irvine’s second application for review. The application was dismissed for lack of jurisdiction. The orders were that the Tribunal dispensed with an oral hearing and dismissed the application.

Orders

Orders of the court

(1) I dispense with an oral hearing of the application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The application is dismissed for lack of jurisdiction.

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.

Medium Neutral Citation:	Irvine v Temora Shire Council [2025] NSWCATAD 59
Hearing dates:	On the papers
Date of orders:	10 March 2025
Decision date:	10 March 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	(1) I dispense with an oral hearing of the application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) The application is dismissed for lack of jurisdiction.
Catchwords:	Administrative Law – government information - statutory interpretation – meaning of s 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW) – whether Tribunal has jurisdiction to entertain a new application for administrative review of a decision made by the respondent following remittal under s 63(3)(d)
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW)
Cases Cited:	Irvine v Temora Shire Council [2024] NSWCATAD 202 Webb v Port Stephens Council [2020] NSWCATAP 152
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Anthony Irvine (Applicant) Temora Shire Council (Respondent)
Representation:	Applicant (Self-Represented) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2024/00353322
Publication restriction:	Nil