Davis v Minister for Health [2022] NSWCATAP 115

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Davis v Minister for Health [2022] NSWCATAP 115 Hearing dates: 11 February 2022; further written submissions dated 18, 21 and 28 February 2022 Date of orders: 14 April 2022 Decision date: 14 April 2022 Jurisdiction: Appeal Panel Before: Armstrong J, President A Britton, Deputy President Decision: (1) The appeal is allowed. (2) The decision under appeal is set aside. (3) Matter number 2021/271978 is to be listed for directions at a date and time to be determined by the Registrar. Catchwords: APPEALS – appeal from summary dismissal of administrative review application - interlocutory decision of Tribunal requiring leave to appeal – leave granted - appeal upheld ADMINISTRATIVE LAW - application for administrative (or merits) review of directions contained in a public health order - directions given by Minister for Health under s 7 of Public Health Act 2010 (NSW) - whether s 7(7) of Public Health Act 2010 (NSW) permits an interested person to seek administrative review in NCAT of directions in a public health order – jurisdiction of NCAT ADMINISTRATIVE LAW – statutory construction – where extrinsic material of little assistance – whether statute should be read as if it contains additional words – whether directions in a public health order are of legislative or administrative character – whether characterisation of directions as legislative or administrative assists in ascertaining meaning of s 7(7) of Public Health Act 2010 (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Services Act 1997 (NSW) Interpretation Act 1987 (NSW) Public Health Act 1991 (NSW) (repealed) Public Health Act 2010 (NSW) Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248 Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 Commissioner of Police, NSW Police Force v Holmes [2021] NSWCATAP 202 Davis v Minister for Health [2021] NSWCATAD 310 Federal Commissioner of Taxation v Consolidated Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586; [2000] 2 All ER 109 Jardin v Metcash Ltd (2011) 214 IR 448; [2011] NSWCA 409 Jones v Wrotham Park Settled Estates [1980] AC 74 Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299 Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 Media Holdings (2012) 250 CLR 503; [2012] HCA 55 RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185; [2001] FCA 855 Taylor v Owners-Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Category: Principal judgment Parties: Danielle Davis (Appellant) NSW Minister for Health and Medical Research (Respondent) Representation: Counsel: K Conte-Mills (Appellant) Z Heger (Respondent)