DeMarco v Macey [2022] NSWSC 1348

DeMarco v Macey [2022] NSWSC 1348

Leave to appeal was granted because the apprehended bias grounds raised questions of general public importance and matters concerning the administration of justice. The Appeal Panel erred in law because it did not properly address the issue of apprehended bias: the Senior Tribunal Member made numerous demeaning, belittling and condescending comments to the self-represented appellant over a four-day hearing, including comments about lying, being sick of his conduct, questioning whether tasks were beyond him, and suggesting he was acting as a ploy. Although isolated frustration would not suffice and the appellant was a difficult litigant, those repeated comments could lead a fair-minded lay...

Jurisdiction
Australia
Judgment Date
05 October 2022
Procedural Posture
Appeal on a Question of Law From a NSW Civil and Administrative Tribunal Appeal Panel Decision / Application for Extension of Time and Leave to Appeal; Appeal Determined
Outcome
Appeal allowed; Appeal Panel decision set aside and matter remitted to a differently constituted Appeal Panel.
Legal Topics
['judicial Review of NCAT Decision' 'procedural Fairness' 'natural Justice' 'actual Bias' 'apprehended Bias' 'self Represented Litigants' 'extension of Time' 'leave to Appeal' 'remittal']
['administrative Law' 'civil Procedure'] ['judicial Review of NCAT Decision' 'procedural Fairness' 'natural Justice' 'actual Bias' 'apprehended Bias' 'self Represented Litigants' 'extension of Time' 'leave to Appeal' 'remittal']

Case Brief

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Procedural Posture

Appeal on a Question of Law From a NSW Civil and Administrative Tribunal Appeal Panel Decision / Application for Extension of Time and Leave to Appeal; Appeal Determined

Legal Issues

  1. 1 ['Whether time to file the summons should be extended to 27 October 2021.' 'Whether leave to appeal should be granted under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW).' "Whether the Appeal Panel erred in law by failing properly to address apprehended bias arising from the Senior Tribunal Member's comments and conduct toward the self-represented appellant." 'Whether the Appeal Panel erred in not quashing or remitting the Tribunal decision on grounds of denial of procedural fairness or natural justice.']

Ratio Decidendi

Leave to appeal was granted because the apprehended bias grounds raised questions of general public importance and matters concerning the administration of justice. The Appeal Panel erred in law because it did not properly address the issue of apprehended bias: the Senior Tribunal Member made numerous demeaning, belittling and condescending comments to the self-represented appellant over a four-day hearing, including comments about lying, being sick of his conduct, questioning whether tasks were beyond him, and suggesting he was acting as a ploy. Although isolated frustration would not suffice and the appellant was a difficult litigant, those repeated comments could lead a fair-minded lay...

Court Disposition

Appeal allowed; Appeal Panel decision set aside and matter remitted to a differently constituted Appeal Panel.

Orders

  • ['Leave to extend the time to file the summons up to and including 27 October 2021 is granted.' 'Leave is granted to appeal.' 'The decision of the Appeal Panel dated 28 September 2021 is set aside.' 'The matter is remitted to a differently constituted Appeal Panel according to law.' "The defendants are to pay the...