NSW Breeding & Racing Stables Pty Ltd v & X - [2005] NSWCA 114

CITATION:
NSW Breeding & Racing Stables Pty Ltd v V & X [2005] NSWCA 114

HEARING DATE(S):
1 April 2005

JUDGMENT DATE:

14 April 2005

JUDGMENT OF:
Spigelman CJ at 1; Handley JA at 53; Hodgson JA at 54

DECISION:
1 Appeal dismissed; 2 Appellant to pay the costs of the Respondents

CATCHWORDS:
ADMINISTRATIVE LAW - Judicial Review - Where Appeal Panel made factual error in determining whether to grant leave to appeal - Where Panel also considered merits of appeal - Whether any purpose to be served by remitting matter to Panel - WORDS & PHRASES: "authorised", "as an employee"

LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977: s53
Legal Aid Commission Act 1979

CASES CITED:
Deatons Pty Ltd v Flew (1949) 79 CLR 370
NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of NSW [2001] NSWSC 494; 53 NSWLR 559
Shellharbour Golf Club Limited v Wheeler (1999) 46 NSWLR 253
University of New South Wales v Moorehouse (1975) 133 CLR 1

PARTIES:
NSW Breeding & Racing Stables Pty Ltd (Appellant)
V (First Respondent)
X (Second Respondent)

FILE NUMBER(S):
CA 2003/40954

COUNSEL:
K Roser (Appellant)
A Healey (Respondent)

SOLICITORS:
Barwick Stevens (Appellant)
MBT Lawyers (Respondent)

LOWER COURT JURISDICTION:
NSW Administrative Decisions Tribunal Appeal Panel

LOWER COURT FILE NUMBER(S):
1998/19; 991030

LOWER COURT JUDICIAL OFFICER:
Deputy President Latham DCJ, Judicial Member Bitel, Member Greenhill

- 16 -

CA 40954/03

SPIGELMAN CJ
HANDLEY JA
HODGSON JA
Thursday 14 April 2005

NSW BREEDING & RACING STABLES PTY LTD v V & X

The conduct of one of the Appellant’s employees, Mr Z, was found to constitute unlawful discrimination against two of the Appellant’s employees by the Administrative Decisions Tribunal (the “Tribunal”). In both instances, the Appellant was deemed to have engaged in the conduct itself by force of s53 of the Anti-Discrimination Act 1977 (the “Act”), and was found jointly and severally liable with Mr Z. Within 28 days of the Tribunal’s decisions, the Appellant sought judicial review of both decisions in the Supreme Court of New South Wales, which relief was denied by Barrett J on the basis that adequate provision for appeal lay with the Administrative Decisions Tribunal Appeal Panel (the “Panel”). Within 28 days of the Supreme Court decision, the Appellant lodged a Notice of Appeal to the Tribunal, repeating the matters raised before Barrett J, and seeking leave to extend the appeal to a review of the merits. Subsequently, the Tribunal heard, and decided in favour of the Respondents, an application for costs in the original first instance proceedings.

The appeal was later heard, and the Panel refused leave to appeal out of time and dismissed the appeal. The Panel ordered the Appellant to pay costs and rejected its submission on contribution. The Panel’s published reasons explained why the Panel did not consider that the Tribunal had erred in law, but gave as one of the reasons for which it refused leave to appeal out of time the assertion that the Appellants…

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: [2005] NSWCA 114
Decision Date: 14 April 2005

CaseChat Overview and Summary

The NSW Breeding & Racing Stables Pty Ltd (the appellant) sought judicial review of a decision by an Appeal Panel. The dispute concerned the Appeal Panel's determination of whether to grant leave to appeal, and its subsequent consideration of the merits of the appeal itself. The matter came before the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the Appeal Panel had made a factual error in its assessment of the grounds for granting leave to appeal, and whether the Panel had impermissibly considered the merits of the substantive appeal when determining the application for leave. A further issue was whether, if errors were found, there was any practical purpose to be served by remitting the matter back to the Appeal Panel.

The Court of Appeal found that the Appeal Panel had indeed made a factual error in its assessment of the grounds for granting leave to appeal. Furthermore, the Court determined that the Panel had improperly considered the merits of the appeal when it should have been focused solely on the threshold question of whether leave should be granted. Given these errors, the Court considered whether remitting the matter would serve any useful purpose. The Court concluded that, in the circumstances, no purpose would be served by remitting the matter to the Appeal Panel.

Consequently, the Appeal was dismissed, and the Appellant was ordered to pay the costs of the Respondents.

Orders

Orders of the court

1 Appeal dismissed; 2 Appellant to pay the costs of the Respondents

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.

CITATION:	NSW Breeding & Racing Stables Pty Ltd v V & X [2005] NSWCA 114
HEARING DATE(S):	1 April 2005
JUDGMENT DATE:	14 April 2005
JUDGMENT OF:	Spigelman CJ at 1; Handley JA at 53; Hodgson JA at 54
DECISION:	1 Appeal dismissed; 2 Appellant to pay the costs of the Respondents

CATCHWORDS:	ADMINISTRATIVE LAW - Judicial Review - Where Appeal Panel made factual error in determining whether to grant leave to appeal - Where Panel also considered merits of appeal - Whether any purpose to be served by remitting matter to Panel - WORDS & PHRASES: "authorised", "as an employee"
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977: s53 Legal Aid Commission Act 1979
CASES CITED:	Deatons Pty Ltd v Flew (1949) 79 CLR 370 NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of NSW [2001] NSWSC 494; 53 NSWLR 559 Shellharbour Golf Club Limited v Wheeler (1999) 46 NSWLR 253 University of New South Wales v Moorehouse (1975) 133 CLR 1
PARTIES:	NSW Breeding & Racing Stables Pty Ltd (Appellant) V (First Respondent) X (Second Respondent)
FILE NUMBER(S):	CA 2003/40954
COUNSEL:	K Roser (Appellant) A Healey (Respondent)
SOLICITORS:	Barwick Stevens (Appellant) MBT Lawyers (Respondent)

LOWER COURT JURISDICTION:	NSW Administrative Decisions Tribunal Appeal Panel
LOWER COURT FILE NUMBER(S):	1998/19; 991030
LOWER COURT JUDICIAL OFFICER:	Deputy President Latham DCJ, Judicial Member Bitel, Member Greenhill