AT v COMMISSIONER OF POLICE, NSW [2010] NSWCA 131

New South Wales Court of Appeal

CITATION: AT v COMMISSIONER OF POLICE, NSW [2010] NSWCA 131

HEARING DATE(S): 26 May 2010

JUDGMENT DATE: 4 June 2010

JUDGMENT OF: Beazley JA at 1; Basten JA at 1; Macfarlan JA at 1

(1) To the extent necessary, grant leave to appeal. (2) Direct that the Commissioner of Police, New South Wales, be named as the respondent to the proceedings. (3) Direct that the appellant be identified in all published reports of the proceedings as "AT" and that no person have access to the Court file, other than officers of the Court in the exercise of their duties, without the leave of a judge of the Court. (4) Allow the appeal and set aside the order of the Appeal Panel affirming the decision under appeal. DECISION: (5) In place of the order made by the Appeal Panel: (a) set aside the decision of the Tribunal made on 14 December 2007 (b) direct that the Tribunal further consider the application before it according to law; (c) order the respondent to pay the applicant's costs of the proceedings before the Judicial Member on 14 December 2007, and (d) order the respondent to pay the appellant's costs of the proceedings before the Appeal Panel. (6) Order the respondent to pay the appellant's costs in this Court.

CATCHWORDS: ADMINISTRATIVE LAW – judicial review – procedural fairness – legal test applied below rejected – failure to afford appellant the opportunity to address the Appeal Panel on the basis of the preferred test – whether Appeal Panel entitled to apply test itself - APPEAL – civil – error of law by Administrative Decisions Tribunal – appeal to Appeal Panel – erroneous decision below not set aside – Administrative Decisions Tribunal Act 1997 (NSW) ss 113, 114 - PROCEDURE – statutory appeal limited to question of law – Court's power to order costs of proceedings before Tribunal – whether power extends to the making of costs order even if no order for costs were asked for or made by Tribunal – Administrative Decisions Tribunal Act 1997 (NSW) s 120 - PROCEDURE – costs – no costs regime – exceptions only if Tribunal "satisfied" an award of costs "fair" – whether exception engaged - WORDS AND PHRASES – "such orders as it thinks appropriate in light of its decision" – "nature and complexity of proceedings"