(1) An extension of time is granted to seek leave to appeal from the orders of the Appeal Panel of the New South Wales Civil and Administrative Tribunal of 25 March 2022, but the summons seeking leave to appeal filed 8 September 2023 is dismissed.
(2) Extensions of time for seeking judicial review, where needed, are otherwise refused.
(3) The amended summons seeking judicial review filed 8 September 2023 is dismissed.
Catchwords:
ADMINISTRATIVE LAW – jurisdictional error – where Residential Tenancy Agreement terminated by consent orders – where plaintiff alleged Residential Tenancy Agreement had already been terminated prior to consent orders being made
ADMINISTRATIVE LAW – remedies – discretionary factors – where judicial review proceedings lack utility – relief refused
APPEALS – right of appeal – relationship with judicial review – where plaintiff had the available and effective alternative remedy of a right of appeal – relief refused
COURTS AND JUDGES – bias – apprehended bias – application for recusal – where plaintiff alleged association with Attorney General – application rejected
[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
Shapkin v Lorenzato [2024] NSWSC 1620
Case
[2024] NSWSC 1620
Decision Date
CaseChat Overview and Summary
In the matter of Shapkin v Lorenzato, the Federal Court of Australia was tasked with addressing several issues arising from a terminated Residential Tenancy Agreement (RTA). The plaintiff, Shapkin, alleged that the RTA had been terminated prior to the entry of consent orders and sought judicial review on this basis, among others. The defendant, Lorenzato, argued that the consent orders had lawfully terminated the RTA and that any claims were without merit.
The court was required to determine whether the consent orders had resulted in a jurisdictional error by terminating the RTA after it had already been terminated. Additionally, the court needed to assess whether the judicial review proceedings were appropriate or if an alternative remedy, such as an appeal, would be more suitable. The plaintiff also sought to have the judge recuse themselves due to an alleged association with the Attorney General.
In its decision, the court found that the plaintiff's claims of jurisdictional error were unfounded, as the consent orders effectively terminated the RTA. The court further determined that the judicial review proceedings were not appropriate, as the plaintiff had an available and effective alternative remedy through an appeal. Consequently, the court dismissed the application for judicial review and the application for the judge's recusal. The court held that the plaintiff's allegations of bias were not substantiated, and therefore, the application for recusal was rejected.