Gartrell v State of NSW

[2025] NSWCATAD 102

NCAT Administrative and Equal Opportunity|2025-05-06

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General information, not legal advice.

At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2025-05-06

Source

Original judgment source is linked above.

Judgment (4 paragraphs)

[1]

The applicant pointed to incident reports in the documents relied on by the first respondent that stated that the second respondent was regularly chemically restraining Mr Gartrell as a day to day 'management tool' contrary to the orders made by the Tribunal that the chemical restraint occur as a last resort or in circumstances of self-harm or risk to another person.
A restrictive practice authorisation dated 21/08/2025 stated that Mr Gartrell had been administered a chemical restraint 10 times in the last 12 months "and is to be offered when Richard demonstrates excessive fixation and OCD related behaviours where staff are unable to redirect him."
The applicant also submitted that the documents that refer to Mr Gartrell giving consent cannot be taken at face value as Mr Gartrell has no or limited opportunities to object or question the treatment he is receiving.

[2]

I consider that this proceeding raises issues which are in factual and legal dispute between the parties. As such, this is not a proceeding that should be summarily dismissed.
The Tribunal will be required to make factual findings as to whether the Tribunal Orders and any Plans made pursuant to it were complied with. The first respondent's function is to make decisions about whether to give or withhold consent as to whether restrictive practices such as chemical restraints should be given to Mr Gartrell.

Parties

Applicant/Plaintiff:

Gartrell

Respondent/Defendant:

State of NSW

Legislation Cited (2)

Civil and Administrative Act 2013

Administrative Tribunal Act 2013

Cases Cited (6)

Section 102 of the Act, like s 55(1)(b) of the CAT Act allows for a proceeding to be dismissed in whole or in part at any stage if the Tribunal is satisfied that the proceedings are misconceived or lacking in substance, or if the Tribunal considers that the proceedings are vexatious or frivolous.
The principles as to the Tribunal's power to dismiss proceedings under s 102 of the Act and s 55(1)(b) of the CAT Act are well known. A complaint or part of a complaint can be dismissed if it is "so clearly untenable that it cannot possibly succeed." General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130.
In a dismissal application, the applicant's case in the substantive proceedings is taken at its highest to enable the Tribunal to determine whether the evidence is capable of amounting to a contravention of the Act. Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. The onus of proving that a complaint ought to be summarily dismissed lies on the person seeking such an order. Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 at [53].
In Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [11] the Appeal Panel considered the predecessor to s102 of the Act and stated that:

Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George [1992] NSWCA 254; (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. (Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1). The commonly-stated test of `taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken `at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred.

A complaint is misconceived or lacking in substance if it can be demonstrated that there exists no factual or legal basis for the allegations or that the allegations lack merit. Battenberg v The Union Club [ No 2] [2003] NSWADT 187 at [15].

(1964) 112 CLR 125

(1992) 26 NSWLR 666

(1992) 30 NSWLR 1