At v Commissioner of Police, NSW

[2010] NSWCA 131

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Procedural fairness
4. › Appeal panel applying new legal test not argued below
5. › Whether party entitled to opportunity to address new test
6. › Administrative Decisions Tribunal Act 1997 (NSW), ss 113, 114
1. Appeal
2. › Statutory appeal on question of law
3. › Powers of appeal body on finding error of law
4. › Whether appeal panel entitled to apply correct test itself rather than remitting
5. › Whether only conclusion open on the facts
6. › Administrative Decisions Tribunal Act 1997 (NSW), s 114
1. Practice and Procedure
2. › Costs
3. › No costs regime with exceptions
4. › Power of appellate court to make costs orders not sought or made below
5. › Whether power extends to making orders Tribunal could have made
6. › Administrative Decisions Tribunal Act 1997 (NSW), ss 88, 120
1. Practice and Procedure
2. › Costs
3. › Criterion of fairness
4. › Model litigant obligations of State agencies
5. › Whether State agency should bear costs of unsuccessful resistance to statutory review application
6. › Administrative Decisions Tribunal Act 1997 (NSW), s 88(1A)

Quick Take

An appeal panel that identifies legal error in the test applied below cannot simply apply the correct test itself and affirm the result unless the only conclusion open on the facts was that reached at first instance. Where the appeal panel proposes to apply a different test, it must afford the parties an opportunity to make submissions on that test. The Court of Appeal's power under s 120(1) of the ADT Act to make 'such orders as it thinks appropriate' extends to making costs orders under s 88 even where no costs order was sought or made by the Tribunal or Appeal Panel.