Tuffy v Vaughan (GD) - [2009] NSWADTAP 75

Appeal Panel - Internal

CITATION: Tuffy v Vaughan (GD) [2009] NSWADTAP 75

PARTIES:
APPELLANT
Michael Tuffy
FIRST RESPONDENT
Leigh Vaughan
SECOND RESPONDENT
John Weate
THIRD RESPONDENT
Linda Gill

FILE NUMBER: 099060

HEARING DATES: 24 November 2009

SUBMISSIONS CLOSED: 24 November 2009

EXTEMPORE DECISION DATE: 24 November 2009

DATE OF DECISION:
22 December 2009

BEFORE: O'Connor K - DCJ (President)

CATCHWORDS: Jurisdiction – appeal against costs order – primary decision not appealable – Held costs decision not appealable – Local Government Act 1993, ss 329, 330 – Administrative Decisions Tribunal Act 1997, s 112

DECISION UNDER APPEAL: Tuffy v Vaughan & ors. (no 2) [2009] NSWADT 242

FILE NUMBER UNDER APPEAL: 083287

DATE OF DECISION UNDER APPEAL: 09/21/2009

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Local Government Act 1993

CASES CITED: Borsak v Cheung (No 2) [2006] NSWADT 208
La France v Clarence [2004] NSWADT 256
Tuffy v Vaughan & ors [2009] NSWADT 316
Tuffy v Vaughan & ors. (no 2) [2009] NSWADT 242

REPRESENTATION:
APPELLANT
G Wells, agent
FIRST AND SECOND RESPONDENTS
J Vaughan, solicitor, Bromhead Legal
THIRD RESPONDENT
In person

ORDERS: The appeal is struck out for want of jurisdiction.

1 The decision in this matter, striking out the appeal, was given ex tempore, on 24 November 2009. The appellant requested reasons within 28 days. The edited reasons follow. There is a further matter that remains (respondents’ application for their costs of the appeal).

Background

2 Mr Michael John Tuffy applied under s 329 of the Local Government Act 1993 for an order dismissing from civic office three councillors elected at the September 2009 poll for the Council of the Great Lakes Shire Council. The councillors were: Cr Leigh Vaughan, Cr John Weate and Cr Linda Gill.

3 Section 329 provides:

‘ 329 Can the holder of a civic office be dismissed?
(1) Any person may apply to the Administrative Decisions Tribunal for an order that a person be dismissed from civic office.

(2) On any such application, the Tribunal may order the dismissal of a person from civic office:

(a) if there has been any irregularity in the manner in which the person has been elected or appointed to that office, or

(b) if the person is disqualified from holding civic office.

(3) Proceedings based on the ground that there has been an irregularity in the manner in which a person has been elected or appointed to civic office may not be commenced more than 3 months after the date of the person’s election or appointment to that office.

(4) If the proceedings are based on the ground that a person is disqualified from holding civic office, the Tribunal may refuse to order the dismissal of the person from that office if it is satisfied:

(a) that the facts and circumstances giving rise to the disqualification are of a trifling character, and

(b) that the acts which gave rise to that disqualification were done in good faith and without knowledge that the person would incur disqualification by doing…

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 Tuffy v Vaughan (GD)

Details

AGLC: Tuffy v Vaughan (GD) [2009] NSWADTAP 75
Case: [2009] NSWADTAP 75
Decision Date: 24 November 2009

CaseChat Overview and Summary

The matter in Tuffy v Vaughan involved an appeal against a costs order made by the respondent in relation to a dispute under the Local Government Act 1993. The appellant, Mr. Tuffy, sought to challenge the costs decision, arguing that it was unreasonable and oppressive. The court was tasked with determining whether the appeal against the costs order was justiciable and whether it had the jurisdiction to hear the matter.

The primary legal issue before the court was whether an appeal could be made against a decision to award costs under the Local Government Act 1993, specifically in light of the provisions of the Administrative Decisions (Judicial Review) Act 1977. The court had to consider whether the costs decision was a separate and independent decision that could be reviewed or if it was integrally connected to the original decision on the merits of the dispute. Additionally, the court examined whether the statutory provisions precluded such an appeal.

The court held that the appeal against the costs order was not justiciable as the costs decision was integrally connected to the original decision on the merits of the dispute. Under the Local Government Act 1993, section 329, and the Administrative Decisions Tribunal Act 1997, section 112, the primary decision on the merits was not appealable, and by extension, the costs decision was also not appealable. Consequently, the court found that it did not have jurisdiction to hear the appeal against the costs order. As a result, the appeal was struck out for want of jurisdiction.

Orders

Orders of the court

The appeal is struck out for want of jurisdiction.

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:	Tuffy v Vaughan (GD) [2009] NSWADTAP 75
PARTIES:	APPELLANT Michael Tuffy FIRST RESPONDENT Leigh Vaughan SECOND RESPONDENT John Weate THIRD RESPONDENT Linda Gill
FILE NUMBER:	099060
HEARING DATES:	24 November 2009
SUBMISSIONS CLOSED:	24 November 2009
EXTEMPORE DECISION DATE:	24 November 2009
DATE OF DECISION:	22 December 2009
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Jurisdiction – appeal against costs order – primary decision not appealable – Held costs decision not appealable – Local Government Act 1993, ss 329, 330 – Administrative Decisions Tribunal Act 1997, s 112
DECISION UNDER APPEAL:	Tuffy v Vaughan & ors. (no 2) [2009] NSWADT 242
FILE NUMBER UNDER APPEAL:	083287
DATE OF DECISION UNDER APPEAL:	09/21/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Local Government Act 1993
CASES CITED:	Borsak v Cheung (No 2) [2006] NSWADT 208 La France v Clarence [2004] NSWADT 256 Tuffy v Vaughan & ors [2009] NSWADT 316 Tuffy v Vaughan & ors. (no 2) [2009] NSWADT 242
REPRESENTATION:	APPELLANT G Wells, agent FIRST AND SECOND RESPONDENTS J Vaughan, solicitor, Bromhead Legal THIRD RESPONDENT In person
ORDERS:	The appeal is struck out for want of jurisdiction.