State of New South Wales v Malek Fahd Islamic School Limited (No 2) [2017] NSWSC 136

State of New South Wales v Malek Fahd Islamic School Limited (No 2) [2017] NSWSC 136

The Court determined that ordering the separate question regarding whether the defendant operated for profit within the meaning of former s 21A of the Education Act 1990 after resolving all other issues was justified, as it avoids unnecessary complication and duplication. There is not such an overlap of evidence as to outweigh the likely efficiencies, given the distinct nature of a judicial review of the Minister's decision versus a de novo finding of fact by the Court.

Jurisdiction
Australia
Judgment Date
23 February 2017
Procedural Posture
Civil / Interlocutory Determination on Separate Question Order
Outcome
Order made for separate determination of question after trial of all other issues
Legal Topics
['order for Separate Determination' 'jurisdictional Fact' 'judicial Review' 'education Funding' 'operation for Profit Under Education Act']
['administrative Law' 'education Law' 'civil Procedure'] ['order for Separate Determination' 'jurisdictional Fact' 'judicial Review' 'education Funding' 'operation for Profit Under Education Act']

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Procedural Posture

Civil / Interlocutory Determination on Separate Question Order

Legal Issues

  1. 1 ['Whether the court should order the determination of a separate question concerning operation for profit under former s 21A of the Education Act 1990' 'Whether there is sufficient overlap of evidence to refuse separate question order' 'Whether determination of the objective fact of operation for profit should occur after all other issues']

Ratio Decidendi

The Court determined that ordering the separate question regarding whether the defendant operated for profit within the meaning of former s 21A of the Education Act 1990 after resolving all other issues was justified, as it avoids unnecessary complication and duplication. There is not such an overlap of evidence as to outweigh the likely efficiencies, given the distinct nature of a judicial review of the Minister's decision versus a de novo finding of fact by the Court.

Court Disposition

Order made for separate determination of question after trial of all other issues

Orders

  • ["Pursuant to rule 28.2 of the Uniform Civil Procedure Rules, the following question is to be decided separately after the trial of all other issues: 'Whether as a matter of objective fact the defendant/cross-claimant operated for profit within the meaning of former s 21A of the Education Act 1990 from 1 January...