Access to personal information, legal professional privilege - form of access - confidentiality - personal factor particular to the Applicant - internal deliberation
Access to government information - access application - reasonable searches - section 111 referral - whether systemic issue in relation to the determination of access application - whether bad faith - section 112 referral
Solicitor - Trust funds - failure to bank Trust funds as soon as practicable - paying Vendor's costs from Purchaser's deposit without Purchaser's authority - Trust accounts in debit - failure to keep accurate records in respect of Trust moneys - receipts, cash books, cash payments, ledger account, and failure to prepare bank reconciliation for Trust account and Trust trial balance within 15 days of end of each month.
Judgment of
Hon G Mullane - Judicial Member
M Riordan - Judicial Member
R Fitzgerald - Non-Judicial Member
Review of decision to place 3 year old black Anglo African child in long term foster care of white foster carers who have cared for him since 5 days after birth - Issues re proposals about African culture, Muslim religion, racism, benefits of placement in same household as brother and half-sister, and consequences for child of severing all his established attachments by moving him.
Judgment of
Hon G Mullane - Judicial Member
Dr J Green - Non-Judicial Member
Prof P FOREMAN - Non-Judicial Member
PROFESSIONAL DISCIPLINE - Accredited Certifier - Review of disciplinary decision - standards in relation to issuance of construction and occupation certificates - three allegations found proven - Board finding of unsatisfactory professional conduct -- orders of reprimand and fine - decision of Board affirmed: Building Professionals Act 2005, s 19
Judgment of
Judge K P O'Connor, President
P Friedmann, Non-judicial Member
PROFESSIONAL DISCIPLINE - accredited certifier - application for review of disciplinary decision - initial hearing confined to review of the disciplinary findings - Board findings of professional misconduct with respect to one project, affirmed with one qualification; Board findings of unsatisfactory professional conduct in respect of other three projects - set aside in respect of one project, otherwise affirmed. Further hearing to be held in relation to the disciplinary orders.
Judgment of
Judge K P O'Connor, President
P Hayward, Non-judicial Member
PROFESSIONAL DISCIPLINE - Accredited Certifier - Review of disciplinary decision - standards in relation to issuance of construction and occupation certificates - Board finding of unsatisfactory professional conduct - those allegations found proven - orders of reprimand and fine - decision of Board affirmed: Building Professionals Act 2005, s 19
Judgment of
Judge K P O'Connor, President
P Friedmann, Non-judicial Member
MERITS REVIEW - whether applicant has applied for review of a decision to charge a fee for the release of his vehicles - whether the Tribunal has power to extend the time for the making of the application
ANTI-DISCRIMINATION - application for summary dismissal - relevant test - applicant's evidence to be taken at its highest - complaint must be 'hopeless'
MERITS REVIEW - decision of Commissioner of Police to add a condition to the Blacktown Pistol Club's approval that there be "no live firing until such time as procedures are put in place to ensure no member of the public is within the range danger area whilst shooting is in progress"- whether Tribunal's decision was 'unreasonable' - whether Tribunal asked itself the wrong question -
Judgment of
Magistrate N Hennessy, Deputy President
P Molony, Judicial Member
M Bolt, Non-Judicial Member
ANTI-DISCRIMINATION - complaints of direct and indirect race discrimination in employment and victimisation - whether requirement of "demonstrated excellence" in at least one clinical specialty practice is an unreasonable requirement for promotion to Grade 3 pharmacist - whether head of department victimised applicant by convening selection panel when applicant had made a complaint of discrimination against him
Judgment of
Magistrate N Hennessy, Deputy President
Ms J Schwager, non-judicial member
Ms J McClelland, non-judicial member
FIREARMS LICENSING - revocation on ground of public interest - affirmed by Tribunal - licensee declined to be cross-examined - procedural fairness - adequacy of Tribunal's explanation - no error - leave to extend to merits refused - appeal dismissed
Judgment of
Judge K P O'Connor, President
P Molony, Judicial Member
M Bolt, Non-judicial Member
ANTI-DISCRIMINATION - leave requested to proceed with a declined complaint - alleged homosexuality discrimination against property owner and agent for not selecting applicant as tenant - whether fair and just for complaint to proceed - likelihood that complaint will be substantiated
CIVIC OFFICE - Application for dismissal of elected councillor - alleged irregularity in the manner of election - whether councillor a resident of the area at the time of nomination - application upheld - order for dismissal: Local Government Act 1993, s 329
Judgment of
Judge K P O'Connor, President
P Molony, Judicial Member
J Schwager, Non-judicial Member
Government information - access application - information contained in tender documents - whether public interest considerations against disclosure out weight the public interest considerations in favour of disclosure - prejudice the supply of confidential information that facilitates the effective exercise of an agency's functions - disclosure of information provided in confidence - reveal commercial-in-confidence provision in a government contract - diminish the competitive commercial value of any information to any person- prejudice any person's legitimate business, commercial and financial interests
VICTIMS SUPPORT - Appeal under Victims Compensation Act 1996 - Withdrawn - Retroactive change in law - Application to reinstate - Statutory Interpretation - Leave granted, Victims Rights and Support Amendment (Transitional Provisions) Regulation) 2013, cll 14, 16
Victims Rights and Support Act 2013 - retroactive application of legislation to claims lodged under Victim Support and Rehabilitation Act 1996 before Act introduced to Parliament
STATE REVENUE - Stamp duties -Trusts - Formation - Whether an express trust exists on transfer of two properties from vendors - Absence of any written declaration - Exemption from duty under Duties Act 1997, s 275.
OCCUPATIONAL LICENSING - Firearms - Whether administrator may have regard to spent conviction history - statutory interpretation - relationship of spent convictions law with firearms law - administrator must disregard history in relation to fitness - may have regard to history in exercising public interest discretion - appeal dismissed - matter remitted: Firearms Act 1996, s 11(3), s 11(7), s 16; Criminal Records Act 1991, s 12, s 13.
- Solicitor - Review of Law Society decision to suspend Practising Certificate - Show cause event - Debtor's Petition & Bankruptcy - Prior disposal of assets - Failure to establish Solicitor is a fit and proper person to hold Practising Certificate
Judgment of
Hon G Mullane, Judicial Member
D Fairlie, Judicial Member
J Tingle, Non-Judicial Member
- Solicitor - Review of Law Society decision to suspend Practising Certificate - Show cause event - Debtor's Petition & Bankruptcy - Prior disposal of assets - Failure to establish Solicitor is a fit and proper person to hold Practising Certificate -Tribunal not limited to grounds in reviewable decision
Judgment of
Hon G MULLANE, Judicial Member
D FAIRLIE, Judicial Member
J TINGLE, Non-Judicial Member
Property, Stock and Business Agents Act - Real Estate agent - refusal of licence application - disqualified person - fit and proper person to hold a licence
Disciplinary proceedings - solicitor - breach of section 255 Legal Profession Act - failure to hold trust money in a trust account exclusively for the person on whose behalf it is received and failure to disburse the trust money only in accordance with a direction given by the person - professional misconduct under section 496 Legal Profession Act - unsatisfactory professional conduct - purpose of the imposition of penalty orders including a fine.
Judgment of
J Currie, Judicial Member
M. Riordan, Judicial Member
E. Hayes, Non-Judicial Member
MERITS REVIEW - direction to Australian Vaccination Network Inc to adopt a new name - whether name is unacceptable because it is misleading, undesirable or suggests a connection with government -
FIREARMS LICENSING - Revocation - Public Interest - Affirmed by Tribunal - Appeal - Whether revocation invalid due to estoppel - rejected - no other question of law - application for leave to extend to merits - refused - observations favourable to the appellant made for administrator to take into account if further application
Judgment of
Judge K P O'Connor, President
P Molony, Judicial Member
M Bolt, Non-judicial Member
Solicitor - Disciplinary Proceedings Failure to attend court for hearing; Subsequent failure to attend on hearing date when Magistrate directed him to; Reprimand by legal Services Commission Review
Judgment of
G Mullane - Judicial Member
M Riordan - Judicial Member
J Butlin - Non-Judicial Member
APPEAL - decision of Guardianship Tribunal to make guardianship and financial management orders - whether applicant before Guardianship Tribunal had standing to made the applications and whether Guardianship Tribunal erred by relying on old medical evidence
Judgment of
Magistrate N Hennessy, Deputy President
P Molony, Judicial Member
Dr B Field, Non-judicial member
ANTI-DISCRIMINATION - whether fair and just for declined complaint of disability discrimination against doctor to proceed - whether doctor providing services to mother of 10 year old patient -
ANTI-DISCRIMINATION - whether fair and just for declined complaint of disability discrimination against doctor to proceed - whether doctor providing services to mother of 10 year old patient -
Solicitor - disciplinary application - failures to respond to correspondence from client - breach of Rule 8 of Revised Professional Conduct and Practice Rules
Judgment of
M Chesterman, Deputy President
J Wakefield, Judicial Member
J Butlin, Non-judicial Member
Victims Support and Rehabilitation - compensable injury - chronic psychological or psychiatric disorder - ARW reports - there must be a diagnosed psychological condition - expert report should clearly explain the basis on which diagnosis made
Solicitor- review (s 63 of Administrative Decisions Tribunal Act 1997) of summary disciplinary decision of Council ( s 540 of Legal Profession Act 2004).criticisms of procedure by Council irrelevant. Tribunal cannot compel Council to identify or produce documents relating to disciplinary decision- Secs 601 & 602 of Legal Profession Act
GOVERNMENT INFORMATION (PUBLIC ACCESS) - Application for disclosure of communications with council officer - refusal to disclose name of correspondent, and name of correspondent's organisation - Upheld by Tribunal - Appeal - Appeal allowed in respect of name of organisation - Not shown that disclosure of name of organisation would be likely to reveal identity of correspondent: Government Information (Public Access) Act 2009
Judgment of
Judge K P O'Connor, President
P Molony, Judicial Member
P Smith, Non-judicial Member
Victims Support and Rehabilitation - leave to rely on further evidence refused - special grounds - exceptional circumstances - chronic psychological disorder
APPEAL - appeal on question of law - whether Tribunal failed to take into account full period of complaint - whether Tribunal applied the correct test for summary dismissal - whether Tribunal breached procedural fairness
Judgment of
Magistrate N Hennessy, Deputy President
A Scahill, Judicial Member
J McClelland, Non-Judicial Member
MERITS REVIEW - whether decision to refuse applicant's application for a contractor's licence in the category of "general building work is correct and preferable decision - whether applicant has a minimum of two years relevant industry experience in a wide range of building construction work.
LEAVE - complaint of race discrimination on being evicted from accommodation declined by President of Anti-Discrimination Board - whether fair and just for complaint to proceed - defence where landlord lives in premises and premises is for no more than 6 people
EQUAL OPPORTUNITY - Complaint of unlawful discrimination because of disability of relative who was deceased at time of conduct in issue - respondent's application to dismiss for want of jurisdiction refused by Tribunal - interlocutory appeal - statutory interpretation - meaning of 'relative' not confined to a person who is alive at the time of the discriminatory conduct - 'disability' may refer to a condition affecting the body of a dead person - appeal dismissed
Judgment of
Judge K P O'Connor, President
R Wright SC, Judicial Member
Z Antonios, Non-judicial Member
OCCUPATIONAL REGULATION - Tow Truck Industry - Operator Licence - Driver certificate - Tribunal affirmed administrator's decisions to disqualify applicant from both authorities - reduced period of disqualification - Appeal - Operator decision affirmed - Fitness may vary having regard to nature of authority - Operator history not necessarily relevant to driver certificate - Conduct as driver during stay period to be taken into account - Leave granted to extend appeal to merits
Judgment of
Judge K P O'Connor, President
S Frost, Judicial Member
M Bolt, Non-judicial Member
ANTI-DISCRIMINATION - application for summary dismissal - whether complaint relating to compliance with Workplace Injury Management and Workers Compensation Act 1998 can constitute breach of Anti-Discrimination Act 1977 - COSTS - whether respondent's delay in applying for summary dismissal makes if fair to award costs
Payroll tax - notices under s 72 of Taxation Administration Act 1996 - Administrator's application to dismiss review applications as frivolous or vexatious. Whether applications for review of decisions are futile. Administrative Decisions Tribunal Act 1997, s 73(5)(g)(ii)
MERITS REVIEW - decision to refuse applicant's applications to be accredited as an animal research establishment and for a licence to supply guinea pigs for use in connection with the research - meaning and applicability of code of practice and guidelines - effect on guinea pigs of housing singly in cages of 900cm2 - scientific value of research
ANTI-DISCRIMINATION - leave - complaint of race discrimination by forensic patient against treating psychiatrist -complaint declined as lacking in substance -- whether fair and just to grant leave for complaint to proceed - whether treating doctor providing a service to applicant when giving expert evidence to the Mental Health Review Tribunal
shooting range approval - condition imposed - control over the use of the shooting range - no control over the Range Danger Area - decision to impose condition affirmed
ANTI-DISCRIMINATION - leave - complaint of race discrimination declined as lacking in substance by President of Anti-Discrimination Board - whether fair and just for complaint to proceed
Land tax - whether dominant use of land for primary production - standing of discharged bankrupt to whom assessments had been issued - different uses of land - whether finding activities undertaken as a hobby open - onus of proof
Judgment of
RL Seiden, Deputy President
A Verick, Judicial Member
J Schwager, Non-Judicial Member
STATE REVENUE - Duties Act 1997- transfer "in partial conformity with" the contract - meaning of "related person" -review on grounds of estoppel and "fairness".
Government information - public access - access sought to information relating to an investigation of a public interest/protected disclosure and action taken in regard thereto - refusal to deal with access application in part to the extent the information had previously been sought and determined by the agency Government information - public interest considerations against disclosure - personal information, disclosure of information provided to the agency in confidence - prejudice the effective exercise of the agency's functions
ANTI-DISCRIMINATION - leave - complaints of race discrimination and victimisation dismissed as lacking in substance - whether fair and just for complaints to proceed
Real estate licensing - whether disqualified person - whether fit and proper to hold a licence - whether "fit and proper person to be involved in the direction, management or conduct of the business of a licensee".
Government information Public Access - conclusive presumption against release of information subject to client legal privilege - litigation privilege - client legal privilege - waiver - without prejudice privilege
Payroll tax - grouping provisions - de-grouping of company - discretion of Chief Commissioner to de-group - nature of discretion under Payroll Tax Act 2007 (NSW) s 79 - independent and not connected - ability to influence management - ability to control - inter-company loans - carrying on of business - statutory interpretation - question of law or fact - task of Appeal Panel where error of law
Judgment of
RL Seiden, Deputy President
J Block, Judicial Member
C Bennett, Non Judicial Member
JURISDICTION - Application for Review - Second Respondent objects to the Tribunal considering application because it lacks jurisdiction - whether the application for review satisfies pre-conditions relating to internal review - held no application for internal review was duly made - however the application for review by the Tribunal is not outside jurisdiction given the Tribunal's broad power to dispense with the requirement for an application for internal review. CASE MANAGEMENT - powers of Tribunal - No utility in application for review proceeding while District Court proceedings on foot - Application for review stayed
JURISDICTION - Application for review of decision to take possession of goods invoking Tribunal's review jurisdiction under the Impounding Act - Objection by respondent - Contended that the decision was made under Uncollected Goods Act - Tribunal not satisfied that decision made under Impounding Act - Objection upheld. Impounding Act 1993, Uncollected Goods Act 1995
Duties - reassessment - power to reassess - legal interpretations and assessment practices of Chief Commissioner - delay by Chief Commissioner - market rate component of interest - whether decision was a final decision - leave to extend appeal to merits
Judgment of
RL Seiden, Deputy President
S Frost, Judicial Member
C Bennett, Non-Judicial Member
Costs - costs recoverable by self-represented individuals - costs incidental to the proceedings - whether Commissioner of Fair Trading's arguments untenable - whether Respondent's conduct of the proceeding vexatious
Non-Indigenous Animals - refusal of keepers licence - new Regulation made after commencement of application to review - whether the law at the time of the original decision or that in effect now applies - whether Regulation ultra vires of Act
APPEAL - appeal against decision of Guardianship Tribunal confirming the appointment of the NSW Trustee as AAE's financial manager - whether Guardianship Tribunal should have reviewed financial manager order as well as appointment; whether Guardianship Tribunal breached rules of procedural fairness by not allowing a non-party to speak at the hearing - whether appeal should be extended to grounds other than a question of law
Judgment of
Magistrate N Hennessy, Deputy President
Mr P Molony, Judicial Member
Ms A Wunsch, Non-Judicial Member
ANTI-DISCRIMINATION - complaints of sex and disability discrimination by applicant declined by Anti-Discrimination Board as lacking in substance - whether to grant leave for complaints to proceed - complaints lack merit
Government Information Public Access - expected expose a persons to risk of harm or of serious harassment or serious intimidation - balance of public interest considerations - personal information - sufficiency of search
Passenger transport - taxi driver authority - cancellation - complaints of sexually explicit comments by driver to passengers - driver's conviction for offensive behaviour - fitness and propriety - repute
FIREARMS LICENSING - Tribunal barred from reviewing revocations based on apprehended violence order - Order quashed on appeal - Whether Tribunal then has jurisdiction to review the revocation and set it aside - Statutory construction - Held no review jurisdiction - Firearms Act 1996, s 11(5), s 24, s 75(1)(c)
Government information - form of access - whether form of access requested by the applicant would interfere unreasonably with the operations of the agency - whether there is an overriding public interest against disclosure of the information in the way requested by the applicant - whether the considerations against disclosure of the information are relevant to the determination as to the form of access Government information - public access - public interest considerations against disclosure - prejudice the supply of confidential information - prejudice the effective exercise of the agency's functions - prejudice the effectiveness of the review conducted by the agency - reveal false or unsubstantiated allegations that are defamatory - expose a person to a risk of harm or serious harassment or serious intimidation - personal information
government information - personal information - personal factors of application - false or unsubstantiated allegations about a person that are defamatory
APPEAL - discretion to appoint suitable person or NSW Trustee as financial manager - whether discretion exercised lawfully - whether facts supported finding of 'major' conflict of interest
Judgment of
Magistrate N Hennessy, Deputy President
Ms S Leal, Judicial Member
Dr B Field, Non-judicial Member
APPEAL - decision to cancel appellant's taxi driver authority - no question of law identified - whether leave should be given to extend appeal to merits - witness evidence given by phone - further evidence foreshadowed but not adduced - whether further evidence would have been unlikely to have led to a different conclusion - .
Judgment of
Magistrate N Hennessy, Deputy President
S Montgomery, Judicial Member
M Bolt, Non-Judicial Member
Payroll tax - grouping provisions - companies with common controlling interest - ASIC certificates - whether individuals were validly appointed directors - de facto directors - errors of law - leave to extend appeal to the merits - unfair or unorthodox treatment of evidence
Judgment of
RL Seiden, Deputy President
GD Walker, Judicial Member
C Bennett, Non Judicial Member
ANTI-DISCRIMINATION - whether phone call by police officer to applicant inquiring about possible criminal offence constitutes sex or disability discrimination in the provision of services
LEAVE - complaint of race discrimination against correctional officers - alleged assault on the ground of Aboriginality - whether fair and just for complaint to proceed
FIREARMS LICENCE - Revocation affirmed by Tribunal - Appeal - Reliance by administrator at internal review on additional ground for revocation - permissible; statement by Tribunal as to possible future action - not unfair; failure to refer to review applicant's written submissions - not unfair - Appeal dismissed
Judgment of
Judge K P O'Connor, President
S Higgins, Deputy President
J McClelland, Non-judicial Member
APPEAL - Guardianship Tribunal decision to appoint NSW Trustee as financial manager of woman with brain injury - whether Tribunal made an error of law by not suggesting an adjournment - by not following principles for appointment of financial manager or by giving inadequate reasons - whether to grant leave to appeal on other grounds
Judgment of
Magistrate N Hennessy, Deputy President
L Goodchild, Judicial Member
A Wunsch, Non-Judicial Member
Appeal - application for dismissal of appeal - non appearance of appellant at hearing - failure by appellant to comply with orders - want of prosecution Appeal - application to adjourn hearing - no appearance by the appellant
Judgment of
S Higgins, Deputy President
P Molony, Judicial Member
J Butlin, Non-Judicial Member
JURISDICTION - PRIVACY - Disclosure by Police of complainant's old criminal record to another person - Whether Privacy and Personal Information Protection Act 1998 applicable to Police Force - Tribunal held not - Appeal - Construction and application of section 27 - Appeal dismissed. Privacy and Personal Information Protection Act 1998, s 27
Judgment of
Judge K P O'Connor, President
P Molony, Judicial Member
Z Antonios, Non-judicial Member
Covenant for quiet enjoyment, retail shop lease section 3, compensation for disturbance section 34 and abatement of rent section 36 of Retail Leases Act 1994
COSTS - applicant failed to appear at hearing and provided no explanation - no proof that applicant received any of the correspondence - whether fair to order costs
ANTI-DISCRIMINATION - Application by NSW Police Force to summarily dismiss complaint under Anti-Discrimination Act 1977 - Whether deed of release prevents applicant from making the complaint - Application to amend complaint - Whether deed of release applies and/or application misconceived - Whether fair to award costs
OCCUPATIONAL LICENSING - Motor Vehicle Repairers Licence - Tribunal affirmed cancellation order, but set aside disqualification orders - Appeal by Administrator seeking reinstatement of disqualification orders - Tribunal misunderstood period of disqualification and did not address the disqualification relating to involvement in management - Tribunal decision set aside - Appeal extended to merits - Disqualification orders reinstated
Judgment of
Judge K P O'Connor, President
S Leal, Judicial Member
P Goudie, Non-judicial Member
Privacy - personal information held by an agency - review of conduct of agency alleged to be a contravention of the use and disclosure information protection principles concerning personal information - alleged unlawful access, use and disclosure of the applicant's personal information by an officer of the agency - whether conduct by the officer of the agency was for a non-agency purpose - whether alleged loss or damage suffered because of the alleged contravention by the agency
Costs - applications withdrawn/dismissed - whether conduct of party disadvantaged the other party - unmeritorious interlocutory applications - delay - application of para 5(1)(b) of the Community Services (Complaints, Review and Monitoring) Act 1993 - failure to particularise claim and orders sought