(3) The applicant is to pay the respondent’s costs of this application
Catchwords:
Appeals — Leave to appeal — From the Appeal Panel of the New South Wales Civil and Administrative Tribunal — Where applicant alleged the Appeal Panel erred in adopting the finding that the respondent was “successful” — Whether it was open to find that the respondent was entirely or “somewhat” successful — Leave to appeal refused — Appeal dismissed
By Summons filed on 1 September 2022, Ms Nerida Mullally, the applicant on this application, seeks leave to appeal a decision of the New South Wales Civil and Administrative Tribunal Appeal Panel (the Appeal Panel), refusing leave to appeal and dismissing the appeal against the decision of the New South Wales Civil and Administrative Tribunal (the Tribunal) ordering the applicant to pay the respondent’s costs of application HB 19/48969.
“A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.”
Background
The background to the application involves two proceedings that commenced before the Tribunal which were heard together.…
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
AGLC
Mullally v Lucien [2023] NSWSC 373
Case
[2023] NSWSC 373
Decision Date
CaseChat Overview and Summary
Mullally v Lucien is a case involving an appeal against a decision made by the Appeal Panel of the New South Wales Civil and Administrative Tribunal. The applicant, Mullally, sought leave to appeal the finding that the respondent, Lucien, was successful in the proceedings. The appeal was dismissed by the Supreme Court of New South Wales.
The primary legal issue before the court was whether it was open to the Appeal Panel to find that the respondent was successful, given the circumstances of the case. The applicant argued that the Appeal Panel erred in its finding, as it was not supported by the evidence and the law. Mullally contended that the respondent could not be considered successful in the proceedings because they had not achieved the desired outcome.
The court considered the grounds of appeal and the evidence presented before the Appeal Panel. The court found that the Appeal Panel's decision was open to them, as it was supported by the evidence and the law. The court held that it was not necessary for the respondent to achieve the desired outcome to be considered successful in the proceedings. The court further found that the Appeal Panel had not erred in their finding, and that it was open to them to find that the respondent was successful. The applicant's appeal was dismissed, and leave to appeal was refused.