Moloney v Taylor - [2016] NSWCA 199

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Moloney v Taylor [2016] NSWCA 199
Hearing dates: 2 August 2016
Date of orders: 02 August 2016
Decision date: 10 August 2016
Before: McColl JA; Simpson JA; Ball J
Decision:
1.   Grant leave to appeal.
2.   Direct the appellant to file a Notice of Appeal in the form of the Amended Notice of Appeal in the White Book subject to what is directed in relation to Order 3 within 7 days.
3.   Vary Order 3 made by the Appeal Panel of the Tribunal by substituting the following order: the proceedings, including the question whether the claim for compensation should be ordered under s 33, are remitted to a Member for determination.
4.   Order the respondent to pay the costs of the application for leave to appeal and of the appeal.
5. Respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW) if qualified.

Catchwords: ADMINISTRATIVE LAW – statutory appeals from administrative bodies – Civil and Administrative Appeal Panel – approach to be followed by Appeal Panel in determining an internal appeal
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Holiday Parks (Long-term Casual Occupation) Act 2000 (NSW)
Suitors’ Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Italiano v Carbone [2005] NSWCA 177
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) [2014] NSWCA 317; (2014) 86 NSWLR 645
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
Taylor v Moloney [2016] NSWCATAP 89
Zhang v Zemin [2010] NSWCA 255; (2010) 79 NSWLR 513
Category: Principal judgment
Parties: Charles James Moloney (Applicant)
Deborah Anne Taylor (Respondent)
Representation:
Counsel:
V Kerr (Applicant)
Submitting Appearance (Respondent)
Solicitors:
Kent Attorneys (Applicant)
Public Interest Advocacy Centre (Respondent)

File Number(s): 2016/147802
Publication restriction: Nil
Decision under appeal

Court or tribunal:

NSW Civil & Administrative Tribunal, Appeal Panel

Jurisdiction:

Appeal Panel

Citation:

[2016] NSWCATAP 89

Date of Decision:

15 April 2016

Before:

Marks ADCJ, Principal Member & D Goldstein, Senior Member

File Number(s):

AP 16/07292

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Judgment

THE COURT: The applicant sought leave to appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the CAT Act”) from part of the decision of an Appeal Panel of the New South Wales Civil and Administrative Tribunal (“the Appeal Panel”) in which the Appeal Panel refused to remit to the first instance Tribunal the applicant’s claim for compensation under the Holiday Parks (Long-term Casual Occupation) Act 2000 (NSW) (“the Act”). [1]
1. See Taylor v Moloney [2016] NSWCATAP 89.
The application for leave to appeal was heard concurrently with the substantive appeal. At the conclusion of the hearing, the Court made the following orders:

1.   Grant leave to appeal.
2.   Direct the appellant to file a Notice of Appeal in the form of the Amended Notice of Appeal in the White Book subject to what is directed in relation to Order 3 within 7 days.
3.   Vary Order 3 made by 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 Moloney v Taylor

Details

AGLC: Moloney v Taylor [2016] NSWCA 199
Case: [2016] NSWCA 199
Decision Date: 10 August 2016

CaseChat Overview and Summary

The appeal concerned a dispute between Moloney (appellant) and Taylor (respondent) before the Court of Appeal of the Supreme Court of New South Wales, constituted by McColl and Simpson JJA and Ball J. The core of the matter involved a statutory appeal from a decision of the Civil and Administrative Appeal Panel.

The Court was required to determine the appropriate approach for the Appeal Panel when considering an internal appeal. Specifically, the proceedings involved a claim for compensation under section 33, and the Appeal Panel's prior decision on this matter was under review.

The Court granted leave to appeal and directed the appellant to file a formal Notice of Appeal. Crucially, the Court varied the Appeal Panel's previous order, remitting the proceedings, including the question of whether compensation should be ordered under section 33, to a Member of the Tribunal for determination. The respondent was ordered to pay the costs of the application for leave to appeal and the appeal itself, with the possibility of a certificate under the Suitors’ Fund Act 1951 (NSW) for the respondent if qualified.

Orders

Orders of the court

1. Grant leave to appeal.

2. Direct the appellant to file a Notice of Appeal in the form of the Amended Notice of Appeal in the White Book subject to what is directed in relation to Order 3 within 7 days.

3. Vary Order 3 made by the Appeal Panel of the Tribunal by substituting the following order: the proceedings, including the question whether the claim for compensation should be ordered under s 33, are remitted to a Member for determination.

4. Order the respondent to pay the costs of the application for leave to appeal and of the appeal.

5. Respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW) if qualified.

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:	Moloney v Taylor [2016] NSWCA 199
Hearing dates:	2 August 2016
Date of orders:	02 August 2016
Decision date:	10 August 2016
Before:	McColl JA; Simpson JA; Ball J
Decision:	1. Grant leave to appeal. 2. Direct the appellant to file a Notice of Appeal in the form of the Amended Notice of Appeal in the White Book subject to what is directed in relation to Order 3 within 7 days. 3. Vary Order 3 made by the Appeal Panel of the Tribunal by substituting the following order: the proceedings, including the question whether the claim for compensation should be ordered under s 33, are remitted to a Member for determination. 4. Order the respondent to pay the costs of the application for leave to appeal and of the appeal. 5. Respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW) if qualified.
Catchwords:	ADMINISTRATIVE LAW – statutory appeals from administrative bodies – Civil and Administrative Appeal Panel – approach to be followed by Appeal Panel in determining an internal appeal
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Holiday Parks (Long-term Casual Occupation) Act 2000 (NSW) Suitors’ Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Italiano v Carbone [2005] NSWCA 177 Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) [2014] NSWCA 317; (2014) 86 NSWLR 645 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Taylor v Moloney [2016] NSWCATAP 89 Zhang v Zemin [2010] NSWCA 255; (2010) 79 NSWLR 513
Category:	Principal judgment
Parties:	Charles James Moloney (Applicant) Deborah Anne Taylor (Respondent)
Representation:	Counsel: V Kerr (Applicant) Submitting Appearance (Respondent) Solicitors: Kent Attorneys (Applicant) Public Interest Advocacy Centre (Respondent)
File Number(s):	2016/147802
Publication restriction:	Nil
Decision under appeal	Court or tribunal: NSW Civil & Administrative Tribunal, Appeal Panel Jurisdiction: Appeal Panel Citation: [2016] NSWCATAP 89 Date of Decision: 15 April 2016 Before: Marks ADCJ, Principal Member & D Goldstein, Senior Member File Number(s): AP 16/07292