ADMINISTRATIVE LAW - Access to information – Client legal privilege – Whether privilege established – Whether the client was the department or the Secretary of the department - Whether the client had authorised Departmental officers to provide instructions on client’s behalf – Whether solicitors purporting to act for Crown Solicitor had authority to do so – Whether legal professional privilege lost on account of fraud
ADMINISTRATIVE REVIEW- Decision by Public Guardian as guardian under guardianship order- application by Public Guardian for dismissal- application misconceived and lacking in substance; want of prosecution. Civil and Administrative Tribunal Act, 2013 (NSW); s55(1)(b) and (d). Dismissal order.
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch -No reasonable cause of action disclosed
ANTI-DISCRIMINATION – Discrimination on the ground of race in the provision of services – Whether general practitioner provided services to the mother of a child patient, when the mother accompanied the child at the consultation.
PRACTICE AND PROCEDURE –Summary dismissal – Application for removal of a party to the proceedings.
CHILD protection – Working with children – Cancellation of Working with Children Check Clearance - Diagnosis of Paedophilic Disorder – Medical treatment management - No criminal record –Reasonable Person Test – Cancellation decision affirmed.
ADMINISTRATIVE LAW – Child Protection – Whether respondent decided to remove care responsibility for a child from the applicant - Late application for internal review – Whether respondent unreasonably refused to consider the applicant’s late application for internal review - Stay application – Decisions to remove care responsibility for children from foster carer and to cancel foster carer’s authorisation – Interests of persons affected by decision – Whether stay appropriate to secure the effectiveness of the determination of the application
Administrative Law – Freedom of Information – access application – excluded information – meaning of “complaint handling and investigative functions” – whether consent to release – consent must be in relation to access application and not release otherwise
ADMINISTRATIVE LAW – Freedom of Information – access to information – secrecy provision in other legislation – whether overriding public interest against disclosure – form of access – provision of alternative form of access
Administrative Law – Civil and Administrative Tribunal – administrative review jurisdiction – enabling legislation - no jurisdiction to review a decision with respect to a planning approval made under Part 1 of Chapter 7 of the Local Government Act 1933 – no jurisdiction to review a decision made with respect to an Application for Heritage Exemption under the Mosman Local Environmental Plan 2012.
ADMINISTRATIVE LAW – review under section 27(1) Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work
CHILD protection – Working with children – No real and appreciable risk – Criminal record – Assaults – Apprehended Violence Orders – Traumatic upbringing – Health worker – Support by Children’s Guardian for applicant.
HUMAN RIGHTS – Discrimination - Grounds – Sexual-orientation discrimination – Whether complaint of suspected drug use was made against applicant police officers on the ground of their homosexuality – Identification of relevant comparator – Whether officers were subjected to a detriment – Anti-Discrimination Act 1977 s 49ZG, s 49ZH
HUMAN RIGHTS – Legislation – Anti-Discrimination Act 1977 (NSW) – Vicarious liability – Whether Police officers “employees” for the purposes of the Act – Whether Commissioner of Police liable for discriminatory acts of Police officer – Anti-Discrimination Act 1977 s 4B, s 53
HUMAN RIGHTS – Legislation – Anti-Discrimination Act 1977 (NSW) – Defences – Whether Police officer under statutory obligation to lodge discriminatory complaint – Anti-Discrimination Act 1977 s 54
HUMAN RIGHTS – Discrimination – Victimisation – Whether making of complaint against Police officer and making adverse comments on application for promotion after Police officer had raised possibility that he had been the subject of discrimination constituted victimisation – Anti-Discrimination Act 1977 s 50
D Robertson, Senior Member
Dr M Murray, General Member
ADMINISTRATIVE LAW – access to government information – presumed conclusive public interest against disclosure - client legal privilege – excluded information.
ADMINISTRATIVE LAW – access to government information – whether the cl 1(e), 1(f), 1(g), 3(a), 3(b) and 3(f) public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure
LICENSING – firearms – licence revocation – fit and proper person – public interest – mental health considerations - whether referral by health practitioner required – jurisdiction to review invalid decision.
ADMINISTRATIVE LAW – privacy – whether an application for internal review has been made – whether the alleged conduct is established – alleged disclosure and use of personal information –- alleged disclosure to legal representative and employee - judicial functions exemption.
ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work
ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- history of allegations – pattern of allegations – allegations conceded – whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children – whether sufficient time to rehabilitate
J McAteer, Senior Member
L Houlahan, Senior Member
ADMINISTRATIVE LAW – Freedom of information — Access to information – GIPA – confidential information – third party objections - personal information – reasonableness of searches – scope of access application
Administrative Law – – access to government information – secrecy provisions - whether disclosure could reasonably be expected to constitute a contravention any other Act – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure
ANTI-DISCRIMINATION – racial discrimination – discrimination against contract workers – whether contract worker denied access to benefits or subjected to detriment – whether termination of contract with contract worker’s employer constitutes not allowing the contract worker to work – whether differential treatment established – racial vilification – whether laughter and comments at school staff meeting a “public act” – whether laughter and comments capable of inciting serious contempt or severe ridicule – victimisation – whether informal complaints of racial discrimination made – whether second applicant did anything under or by reference to Anti-Discrimination Act – whether respondents subjected second applicant to a detriment
Dr J Lucy, Senior Member
Prof J Goodman-Delahunty, General Member
ADMINISTRATIVE REVIEW – Reporting obligations – Application for summary dismissal – Whether Tribunal has power to grant relief sought by applicant - Whether Tribunal has power to exempt an applicant from his or her reporting obligations altogether
ADMINISTRATIVE REVIEW – Government Information (Public Access) – decision that application not a valid access application because one clause did not contain such information as was reasonably necessary to enable the government information applied for to be identified – whether failure to provide sufficient information in one severable portion of an application renders the whole application not a valid access application – application may be valid in part and invalid in part
PRIVACY – Personal Information – Whether work address personal information – Basis of disclosure – Purpose of disclosure – Conflict in evidence – Closure of parties cases prior to consideration of all evidence – Request for residue to be determined without hearing- Appropriate remedies – Powers of Tribunal to make orders and recommendations
Government Information (Public Access) – complaint handling function of the HCCC - referral of complaint to Medical Council of NSW - whether information then obtained by Medical Council relates to complaint handling function of the HCCC - excluded information – conclusive presumption of an overriding public interest consideration against disclosure.
ADMINISTRATIVE LAW – Freedom of Information – access to information – scope of the application - personal information – sufficiency of searches – prejudice to future supply of information from informants - prejudice to prevention, detection or investigation of a contravention or enforcement of the law
ADMINISTRATIVE LAW – review under section 245 Children and Young Persons (Care and Protection) Act 1998 (NSW) – child protection – care and protection of children – cancellation of authorisation as an authorised carer.
C A Mulvey, Senior Member
D Crowley, General Member
ANTI-DISCRIMINATION – sexual harassment – allegation of conduct constituting sexual harassment by the display of a poster at the workplace – whether employee sexually harassed – whether conduct constituted “unwelcome conduct of a sexual nature”
ANTI-DISCRIMINATION – sex discrimination – whether depiction of female employee on a poster amounted to sex discrimination at the workplace – whether the display of the poster amounted to unfavourable treatment on the ground of sex
Dr R Dubler SC, Senior Member
Dr J Goodman-Delahunty, General Member
ADMINISTRATIVE LAW - Privacy – Personal Information – disclosure – whether respondent exempt from privacy provision – whether safeguards sufficient – whether nature of action taken sufficient – evidence to establish loss and damage – insufficiency of evidence – nature of evidence
Child protection – Working with children – enabling order sought – disqualified person - disqualifying offence – act of indecency – s61N Crimes Act 1900 - underlying conduct - relevance to risk of finding of intellectual disability – whether working with children check clearance required for referees - enabling order granted.
S Leal, Senior Member
Prof P Foreman, General Member
ADMINISTRATIVE REVIEW – liquor licensing – former licensee banned for life from holding a liquor licence – whether condition prohibiting former licensee from attending the licensed premises and having an involvement with the business should be imposed
ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) – Trustee and Guardian - interests and welfare of protected person – whether to sell a protected persons property – financial management order.
MERITS REVIEW - decision of Registrar of Births, Deaths and Marriages not to register a change of name after registration of more than three prior name changes – restrictions on registering changes of name and exceptions to restrictions – discretion on registration – improper purpose – possibility of name change in foreign country if dual citizenship – fluidity of changes to proposed new name.
ADMINISTRATIVE LAW- review application where no internal review sought prior to application – jurisdiction of the Tribunal to hear the stay application – whether stay is desirable - interim stay sought under section 60 Administrative Review Act 1997 (NSW).
ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant charged with two charges of indecent assault of a child but charges did not proceed – untested allegations - whether applicant poses a risk to safety of children – assessment of risk – correct and preferable decision
ADMINISTRATIVE LAW – review under section 245 Children and Young Persons (Care and Protection) Act 1998 (NSW) – child protection – care and protection of children – restoration of child to the care of an authorised carer – least intrusive intervention in the life of the child or young person – accumulation of factors amounting to an "unacceptable risk" of harm to children - cancellation of authorisation as an authorised carer.
SEX (PREGNANCY) AND CARER’S RESPONSIBILITIES DISCRIMINATION – victimisation - aiding and abetting - whether case should be dismissed for want of jurisdiction - dispute between residents of different states - whether case should be dismissed on basis it is frivolous, vexatious, misconceived or lacking in substance - whether the conduct alleged, if proven, would not disclose the contravention of a provision of the Act or the Regulations.
ANTI-DISCRIMINATION – Where complaint of victimisation declined by President of Anti-Discrimination Board as lacking in substance – Application for leave to proceed with complaint -- Whether fair or just to grant leave
ADMINISTRATIVE LAW — Freedom of information — Access to information – application for Tribunal to refuse to deal with review application under s 109 of the Government Information (Public Access) Act 2009 – application for summary dismissal of review application – Tribunal refused to deal with and dismissed review application
REVENUE - Stamp Duty – Exemptions - agreement for sale of dutiable property to exempt charitable or benevolent body - Duties Act 1997 (NSW), ss 275, 275A - whether a body created by statute to regulate and control thoroughbred horse racing fell within the exemptions, of itself or as trustee of a trust for retired racehorses - nature of a charitable body - meaning of benevolent - Chief Commissioner decided to disallow objection to decision not to allow the exemption - Decision affirmed.
ADMINISTRATIVE LAW – review under section 28 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable –assault on a person under 16 years with an act of indecency contrary to s 61E(1A) Crimes Act 1900 (NSW) – enabling order – discharge onus -would a reasonable person allow unsupervised access to their own child in context of child related work
ADMINISTRATIVE LAW – Government information – Application for restraint order – Where agency determined it did not hold information sought by applicant in four applications made in previous two years – Where three of those applications the subject of Tribunal review - Whether access applications lacked merit – Whether discretionary factors favoured making of restraint order – Whether proportion of Council’s resources taken up by access applicant was a relevant discretionary factor – Whether alleged conduct of applicant in writing voluminous correspondence to Council and making defamatory statements was a relevant factor
PRACTICE AND PROCEDURE – Principles applying to power to make confidentiality orders – Whether Tribunal should dispense with a hearing
PROCEDURAL FAIRNESS – Apprehended or actual bias - Whether Tribunal member should recuse herself
ADMINISTRATIVE LAW – freedom of information – preliminary draft expert report – whether release could reasonably be expected to prejudice the effective exercise of agency’s functions – effect upon availability of experts to assist agency – consideration of broader circumstances where expert does not object to disclosure
ADMINISTRATIVE LAW – Freedom of information – Access to information concerning a preliminary assessment report of a complaint made by the applicant – whether there is public interest against the disclosure of the information sought and on balance, that public interest against disclosure overrides the public interest in favour of disclosure – confidential information – personal information of a person other than the applicant
ADMINISTRATIVE LAW – administrative review – application for enabling order under section 18 Child Protection (Working with Children) Act 2012 NSW – applicant a Disqualified Person – child protection – what is the correct and preferable decision having regard to the material before the Tribunal – whether the applicant poses a real and appreciable risk to the safety of children.
S. Scarlett, Senior Member
P. Foreman, General Member
Administrative Law – privacy and personal information whether collection of personal information – use of personal information – disclosure of personal information - whether agency exempt from compliance with information protection principle - law enforcement purposes
ADMINISTRATIVE LAW – freedom of information – access to information – legal professional privilege – whether respondent holds further information – access charges – whether information personal information
ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- history of allegations – whether adverse inference available – whether positive findings can be made – adverse findings about risk of harm
J McAteer, Senior Member
A Limbury, General Member
LICENSING – firearms – firearms prohibition order – weapons prohibition order – dismissal for lack of jurisdiction – nature of jurisdictional hearing – stay of proceedings.
PRACTICE AND PROCEDURE – tribunals – jurisdictional hearing.
TAXES AND DUTIES - payroll tax- general medical practitioners (GPs)-operator of medical centres - relevant contract provisions - availability of exemption (s32(2)(b)(i) Payroll Tax Act- whether Medicare and Department of Veterans Affairs benefits to which GPs were entitled and collected and paid through the medical centre operator “wages’ paid by operator to the GPs by s35 Payroll Tax Act
ADMINISTRATIVE LAW — Particular administrative bodies — NSW Civil and Administrative Tribunal – administrative review jurisdiction – no jurisdiction to administrative review abatement under s125 of the Local Government Act 1993 – no jurisdiction to administratively review impounding of stock under s 116(3) of the Local Land Services Act 2013.
ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person by reason of an offence and is presumed to be a risk to children – whether applicant has discharged the onus of proof – assessment of risk.
C Grant, Senior Member
Professor P Foreman, General Member
ADMINISTRATIVE LAW - Working with children-Application for enabling order – Where applicant indecently assaulted adult 14 years ago – whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children- costs
Victims rights and support – administrative review – statutory interpretation – meaning of “motor vehicle accident” under s 25 (2) of the Victims Rights and Support Act 2013 – whether applicant is entitled to victims support in respect of the act of violence
ADMINISTRATIVE REVIEW – government information – information concerning a preliminary assessment of a complaint made by the applicant – prejudice supply of information – prejudice effective exercise by the agency of its functions – personal information – motive
ADMINISTRATIVE REVIEW – application for non-publication orders
ADMINISTRATIVE LAW – Child Protection – Working with children – Where Children’s Guardian cancelled the applicant’s working with children check clearance – Where applicant had a lengthy criminal history –
Where there was no evidence that applicant had ever harmed a child - Whether applicant had overcome alcohol use disorder – Whether the applicant poses a real and appreciable risk to the safety of children
Dr J Lucy, Senior Member
L Houlahan, Senior Member
Administrative Review – firearms – minor subject to firearms prohibition order – no jurisdiction to hear application for administrative review as applicant a disqualified person – no right of external review under s 75(1A) of Firearms Act.
ADMINISTRATIVE LAW – access to government information – cabinet information
ADMINISTRATIVE LAW – whether the Tribunal has jurisdiction to review a decision of an agency that information is ‘out of scope’
MERITS REVIEW – revocation of firearm licence - public interest - fit and proper person – attempt to commit suicide - mental health issues - psychiatric and psychological evidence.
CONFIDENTIALITY - marital dispute - nature of allegations by and against the Applicant – young children – interests of unrepresented persons.
TAXES AND DUTIES- land tax- primary production exemption- agistment arrangements - use of land by agistee - whether two operations constitute the same business - meaning of ‘dominant use’- meaning of ‘significant and substantial’- meaning of ‘purpose of profit’- consolidation of primary production activities of various users - use of notional costs of labour and land use - onus of proof
ADMINISTRATIVE LAW- Education and Care Services National Law – review of a decision refusing provider approval under section 15(2) of the National Law – whether a fit and proper person - Objects and Principles of National Law – Children – Childcare Services – Administrative review jurisdiction – correct and preferable decision - whether the Tribunal should uphold the decision or substitute decision.
ADMINISTRATIVE LAW - GIPA Act – Government Information – whether information held by the agency – whether in possession or control – capacity as an officer or member of staff of an agency – obligation to undertake reasonable searches
ADMINISTRATIVE LAW – administrative review - Government Information – third party consultation - public interest considerations against disclosure – whether information provided in confidence – whether disclosure could reasonably be expected to diminish competitive commercial value of information – whether disclosure could prejudice business and commercial interests – onus on third party applicant to establish an overriding public interest against disclosure – onus not discharged
ADMINISTRATIVE REVIEW – access to government information – refusal to deal with application – amended application - whether respondent holds other information – information already available to the applicant
CHILD Protection – Working with children – Criminal conviction quashed - Findings in respect of criminal allegations –Weight of evidence in absence of testing of evidence – Significant history without complaint – Absence of interpreter in court proceedings.
ADMINISTRATIVE LAW – Privacy – Health information – Whether applicant has standing to bring proceedings on his mother’s behalf - Where applicant was attorney of his mother under an enduring power of attorney – Where applicant alleged that the respondent had contravened health privacy principles in relation to his mother’s health information – Where Tribunal made guardianship orders appointing applicant’s brother as his mother’s guardian for limited purposes - Whether applicant acting as mother’s authorised representative in privacy proceedings was inconsistent with the guardianship order
ADMINISTRATIVE LAW – public access to government information –Request for information concerning a complaint alleging police misconduct – Personal information – whether prejudice to the effective exercise of an agency’s functions – public interest in transparency and accountability - balancing public interest considerations – personal information
TATTOO PARLOURS- tattoo licence – adverse security determination - fit and proper person – public interest – tattooing young person under the age of 18 years without parental consent - criminal record – decision set aside
ADMINISTRATIVE LAW- freedom of information- government information public access-advance deposit requirement-refusal to progress application-open access information- ss6,18, 64,68 and 80 Government Information (Public Access) Act 2009 (NSW)
LAND TAX – unoccupied land – intention to build home as principal place of residence – building work uncompleted – whether circumstances beyond control of taxpayers – revocation of concession – discretion to remit interest – some premium and market rate interest to be remitted.
ADMINISTRATIVE REVIEW – Liquor regulation – Hotel licence – Three strike regime – Imposition of first strike upon former licensee – Where former licensee committed prescribed offence of permitting intoxication on the licensed premises – Meaning of serious harm - Whether patron vomiting constituted serious harm – Whether respondent was entitled to consider potential harm, or to speculate as to harm which might have occurred – Whether the circumstance that the applicant was no longer the licensee at the licensed premises was relevant to the decision to impose a first strike
CHILD protection – Working with children – No real and appreciable risk – Sporting coach - Daughter and stepson removed from family home follow assault by applicant’s wife on stepson - Daughter later restored to the applicant and his wife - Relevance of unproven allegations of sexual assault made against the applicant.
COSTS –whether there were special circumstances and if so did they warrant an order for costs – s 60 Civil and Administrative Tribunal Act 2013 -
- credibility of the Applicant and his witnesses – conduct of the Applicant.
PROCEDURE – application for suppression orders – claimed confidential nature of material – s 64 Civil and Administrative Tribunal Act – application for non-publication order in respect of documents relating to fees charged by a government agency to another government agency and by a barrister to a government agency – grounds for non-publication – whether disclosure not in the public interest – whether real risk if application for non-publication order refused – whether desirable to make an order.
ADMINISTRATIVE LAW – Government Information – access application - building certifier’s response to complaint - confidential information - information provided in confidence – prejudice effective exercise by an agency of the agency's functions - personal information
ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) – NSW Trustee and Guardian - interests and welfare of protected person – whether to sell a protected persons property – financial management order.
ADMINISTRATIVE REVIEW - Administrative Law – Government Information – overriding public interest against disclosure - personal information - information provided to the agency in confidence - prejudice supply of information - disclosure not in the best interests of a child - access to the information previously provided – matter remitted for reconsideration.
CHILD PROTECTION – working with children check clearance – applicant found guilty of a disqualifying offence – whether applicant discharged his onus to rebut the presumption that he poses a risk to the safety of children – onus not discharged
S Higgins, Senior Member
Prof P Foreman, General Member
ADMINISTRATIVE LAW — Working with children — Application for enabling order — Where applicant committed offence of filming an adult woman’s private parts — Whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children
G Blake AM SC, Senior Member
E Hayes, General Member
SUMMARY DISMISSAL – failure to comply with directions – failure to appear at case conference - application to dismiss proceedings for want of prosecution and failure to appear
COSTS – whether special circumstances warranting an order for costs
ADMINISTRATIVE LAW – Government Information (Public Access) Act -– GIPA – consultation – whether consultation required-sufficiency of evidence to establish factors against disclosure - weight to apply significantly to factors against disclosure.
ADMINISTRATIVE LAW – refusal of public passenger vehicle driver authority – history of speeding infringements – whether applicant is fit and proper person and has sufficient responsibility and aptitude
HUMAN RIGHTS – racial vilification – meaning of “public act” – “capacity to incite serous hatred, ridicule or contempt” – relevance of intention – defence or exception of “reasonably and in good faith”
ADMINISTRATIVE REVIEW – Long term banning orders – Where applicant is a former licensee and a hotel owner – Where applicant assaulted man not far from the hotel he owns - Whether preconditions for making banning orders met - Whether the victim of the assault was affected by alcohol – Whether applicant was performing services on the hotel premises at the time of the offence – Discretionary considerations
CHILD protection – working with children – whether any real and appreciable risk to children – seven years ago the applicant charged with a number of offences of aggravated sexual assault and aggravated indecent assault – all charges dismissed at committal – no prior or subsequent reports of inappropriate conduct
S Higgins, Senior Member
L Houlahan, Senior Member
ADMINISTRATIVE LAW – Government Information (Public Access) Act -– GIPA –- meaning of excluded information – whether nature of information and term ‘related to’ can be ascertained from description of a process – whether determination as to whether to apply for administration constitutes exercising functions as executor, administrator or trustee capacity.
BIRTHS, DEATHS AND MARRIAGES – birth registration - name change – parents’ “original surname[s]” – statutory interpretation – literal rule – ordinary meaning - purposive interpretation – legislative history.
WORDS AND PHRASES – “original surname” – “family name at birth”.
ADMINISTRATIVE LAW – government information – refusal to deal with application – whether dealing with the application would involve an unreasonable and substantial diversion of resources – whether multiple applications are related.