Tu v University of Sydney

The appellant, Tu, appealed to the Supreme Court of New South Wales against decisions of the Appeal Panel of the Administrative Decisions Tribunal. The dispute concerned the reconstitution of the Tribunal, which the appellant argued was improperly constituted, and the subsequent dismissal of her complaint. The Appeal Panel had dismissed the appellant's appeal against the Tribunal's decisions.

The primary legal issues before the Supreme Court were whether the Administrative Decisions Tribunal was validly constituted when it made its decisions, and whether the Appeal Panel erred in law by failing to consider this issue and by dismissing the appellant's appeal. Specifically, the court considered whether the Acting President had the power to reconstitute the Tribunal under section 79 of the *Administrative Decisions Tribunal Act 1997* (NSW) when a member was only temporarily unavailable, and whether the Tribunal's failure to grant an adjournment to consider the reconstitution was an error of law.

The Supreme Court reasoned that section 79 of the *Administrative Decisions Tribunal Act 1997* (NSW) required specific preconditions to be met before the Acting President could reconstitute a Tribunal, particularly when a member's unavailability was temporary. The court found that the unavailability of Judicial Member Lees for only one week was insufficient to warrant reconstitution under section 79, and therefore the Tribunal constituted by Mr Bartley and his colleagues was improperly constituted. The Appeal Panel had erred by not addressing this fundamental issue and by dismissing the appellant's appeal.

The Supreme Court allowed the appeal, dismissed the respondent's notice of motion, and set aside the orders of the Appeal Panel. The court ordered that the appeal to the Appeal Panel be upheld, the orders of the Tribunal dismissing the appellant's complaint and any consequential costs orders be set aside, and that the complaint be remitted to the Administrative Decisions Tribunal for determination. The respondent was ordered to pay the appellant's costs of the appeal and the appeal to the Appeal Panel.