TU v UNIVERSITY OF SYDNEY [2003] NSWCA 170

Reported Decision : 57 NSWLR 376

New South Wales Court of Appeal

CITATION : TU v UNIVERSITY OF SYDNEY [2003] NSWCA 170 HEARING DATE(S) : 25 June 2003 JUDGMENT DATE : 18 July 2003

JUDGMENT OF : Sheller JA at 1; Beazley JA at 35; Tobias JA at 36 DECISION : 1 Appeal allowed; 2 Respondent's notice of motion dismissed; 3 Set aside the orders of the Appeal Panel made on 31 May and 13 August 2002. In lieu thereof, order that the appeal to the Appeal Panel be upheld, the orders made by the Tribunal on 10 January 2001 dismissing the appellant's complaint and any consequential costs orders be set aside and that the complaint be remitted to the Administrative Decisions Tribunal for determination of the complaint as referred to the Tribunal under s94 of the Anti-Discrimination Act 1977; 4 The respondent should pay the appellant's costs of this appeal and of the appeal to the Appeal Panel. The costs of the proceedings to date in the Administrative Decisions Tribunal should be in the discretion of the Tribunal constituted to hear the complaint.

CATCHWORDS : Administrative Law - Administrative Decisions Tribunal - Replacement of Tribunal Member - Unavailability of Member - Lack of consent of parties - Constitution of new Tribunal - Whether discretion of Acting President - Tribunal wrongly constituted - Appealable decision - Administrative Decisions Tribunal Act 1997 ss 22, 79, 112 Administrative Decisions Tribunal Act 1977 LEGISLATION CITED : Anti-Discrimination Act 1977 Supreme Court Act 1970 Johns v Australian Securities Commission (1993) 178 CLR 408 CASES CITED : Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 Minister for Urban Affairs and Planning v Rosemount Estate Pty Ltd & Ors (1996) 91 LGERA 31 PARTIES : John-Hasio Kong Tu - Appellant Unviersity of Sydney - Respondent FILE NUMBER(S) : CA 40956/02 COUNSEL : B J Toomey QC/P Gow - Appellant J N West QC/J Oakley - Respondent SOLICITORS : Harish Prasad & Associates - Appellant Minter Ellison - Respondent