FLK v Transport for NSW [2023] NSWCATAP 140

FLK v Transport for NSW [2023] NSWCATAP 140

The Appeal Panel held that it was not manifestly clear that the Tribunal failed to take the appellant's written statement into account; the fact that the appellant was not cross-examined did not require the Tribunal to accept everything in it. The statement's substantial additional point was that the appellant had not received several cautions, but he largely did not dispute the conduct underlying them. The Tribunal's decision rested on the appellant's consistent pattern of offending, not materially on failure to heed cautions. Any failure to address the asserted non-receipt of cautions was peripheral and did not amount to procedural unfairness, constructive failure to exercise...

Jurisdiction
Australia
Judgment Date
30 May 2023
Procedural Posture
Internal Appeal in Administrative Review Concerning Cancellation of a PWC Boat Licence / Appeal Panel; Application for Leave to Appeal and Appeal on Questions of Law From Civil and Administrative Tribunal, Administrative and Equal Opportunity Division Decision [2022] NSWCATAD 360
Outcome
Application for leave to appeal refused; appeal dismissed; disclosure of the appellant's name prohibited.
Legal Topics
['procedural Fairness' 'constructive Failure to Exercise Jurisdiction' 'leave to Appeal' 'cancellation of Marine Safety Licence' 'consideration of Written Evidence' 'unchallenged Evidence']
['administrative Law' 'marine Safety Licensing' 'civil and Administrative Tribunal Procedure'] ['procedural Fairness' 'constructive Failure to Exercise Jurisdiction' 'leave to Appeal' 'cancellation of Marine Safety Licence' 'consideration of Written Evidence' 'unchallenged Evidence']

Case Brief

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Procedural Posture

Internal Appeal in Administrative Review Concerning Cancellation of a PWC Boat Licence / Appeal Panel; Application for Leave to Appeal and Appeal on Questions of Law From Civil and Administrative Tribunal, Administrative and Equal Opportunity Division Decision [2022] NSWCATAD 360

Legal Issues

  1. 1 ["Whether the Tribunal failed to take into account the appellant's written statement because he was not cross-examined on it." "Whether any failure to address the appellant's evidence amounted to denial of procedural fairness or constructive failure to exercise jurisdiction." 'Whether leave to appeal should be granted on the basis of factual error or injustice.']

Ratio Decidendi

The Appeal Panel held that it was not manifestly clear that the Tribunal failed to take the appellant's written statement into account; the fact that the appellant was not cross-examined did not require the Tribunal to accept everything in it. The statement's substantial additional point was that the appellant had not received several cautions, but he largely did not dispute the conduct underlying them. The Tribunal's decision rested on the appellant's consistent pattern of offending, not materially on failure to heed cautions. Any failure to address the asserted non-receipt of cautions was peripheral and did not amount to procedural unfairness, constructive failure to exercise...

Court Disposition

Application for leave to appeal refused; appeal dismissed; disclosure of the appellant's name prohibited.

Orders

  • ['Pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the appellant is prohibited.' 'Application for leave to appeal refused.' 'Appeal dismissed.']