//
© 2026 Zoe. All rights reserved.
Zoe gives general legal information, not legal advice. For the authoritative text, check the official register of the law's own jurisdiction, such as the Federal Register of Legislation for Commonwealth laws.
[2025] NSWCATAP 83
General information, not legal advice.
NCAT Appeal Panel
2025-04-17
Dr R Dubler SC, Senior MemberJ Redfern, Senior Member
Original judgment source is linked above.
(1) Leave to appeal is refused.
(2) Appeal dismissed.
(3) Any application for costs by the Respondent is to be lodged with the Tribunal and served on the Appellant within 14 days of the publication of these orders and the Appeal Panel's reasons, such application to include written submissions and evidence in support.
(4) The Appellant is to respond within 14 days thereafter by lodging with the Tribunal and serving on the Respondent his written submissions and any evidence in support.
(5) The Respondent is to reply to such submissions and evidence within 7 days thereafter.
(6) The submissions are to include submissions on whether or not the issue of costs should be dealt with without the need for a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Young
Commissioner of Police, NSW Police Force [2025] NSWCATAP 83
Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21
AML v Commissioner of Police [2013] NSWADT 5
Chen v Commissioner NSW Police Force [2020] NSWCATAD 245
Collins v Urban [2014] NSWCATAP 17
Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6
Donohoe v Albulario [2024] NSWCATAP 166
Emmerson v Mission Australia - Mid North Coast [2024] NSWCATAP 256
Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325
INA Operations Pty Ltd TAF INA Operations Trust #6 t/as Ingenia Holidays v Shojai [2024] NSWCTAP 162
Kenny v Trip A Deal Pty Ltd [2021] NSWCATCD 60
Mackenzie v R [1996] HCA 35; (1996) 141 ALR 70
McGrath v Commissioner of Police, NSW Police Force [2019] NSWCATAD 98
Mewborn v Commissioner of Police, NSW Police [2009] NSWADT 24
NSW Land and Housing Corporation v Orr [2019] NSWCA 321
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112
Romanos v Commissioner of Police, NSW Police Force [2019] NSWCATAD 272
Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206; (2017) 95 NSWLR 597
Smith v Commissioner of Police, NSW Police Force and Fair Trading [2014] NSWCATAD 184
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204
Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28
Wattle v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124
Webb v Commissioner of Police, NSW Police [2004] NSWADT 110
Zonnevylle v Department of Justice [2019] NSWCATAP 44
1. Absent leave to appeal, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [97].
2. The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 (Kudrynski) at [48], Mooney at [97], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 (Wollondilly) at [28].
"Ground 4 is somewhat different. It maintained that NCAT had erred in 'failing to apply the correct test' and 'effectively reversing the onus of proof', as well as failing to consider various matters, thereby leading to the wrong decision. That ground is capable of giving rise to a question of law. However, it is desirable for a notice of appeal in an appeal which is limited to questions of law to identify with precision what the question of law is. As was said in a similar context, 'The questions of law are not to be distilled from the grounds of appeal': Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21]. It is after all the claimed existence of the question of law which founds an appellant's entitlement to appeal as of right. Put another way, the first thing the appellate court must do is determine whether it has jurisdiction, and it will have no jurisdiction to determine the purported appeal on the merits unless it discloses a question of law."
(b) It is not possible by a mere drafting device of asserting error of law, to raise a question of law: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13].
3. A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].
4. A "pure question of law" and "a question of law alone", and other variants, are synonyms: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12], [14], summarising Orr v Cobar Management Pty Ltd [2020] NSWCCA 220.
5. A "pure question of law" does not depend on facts not found, per Bathurst CJ and Bell P stating in Orr v Cobar at [48] and [109]:
"[48] As was noted in Bass v Permanent Trustee Company Limited [1999] HCA 9; (1999) 198 CLR 334 at 358; [1999] HCA 9 at [52], some questions of law can be decided without any reference to the facts, or may proceed by reference to assumed facts. These are sometimes described as 'pure questions of law'. This was the terminology used, for example, by Leeming and White JJA in strictly confining a grant of leave to appeal in Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62 at [11]; see also Medical Council of New South Wales v Lee [2017] NSWCA 282 at [77]; and Violi v Commonwealth Bank of Australia [2015] NSWCA 152 at [66] and [125].
...
[109] Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law'. They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts. The construction accords with the cases we have referred to at [48] and [70] above."
6. A party contending a "question of law alone" was wrongly decided, must identify the question in abstract terms. In R v PL [2009] NSWCCA 256 at [27], Spigelman CJ stated that a contention that a presiding judicial officer erred may involve a question of law alone if a stand‑alone legal proposition can be identified which was a "distinct and separate step in the reasoning process." In Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 (Bimson, Roads & Maritime), Beech‑Jones J at [40], quoted Gibbs CJ in Williams v R (1986) 161 CLR 278; [1986] HCA 88 at p 287:
7. The question of law must, self‑evidently, be a question of law and not depend on the answer. For example, a question which commences with, "whether it was open to find on the facts fully found" would raise a question of law if the answer was no; but not, if the answer was yes: Orr v Cobar Management Pty Limited [2020] NSWCCA 220 at [58]-[59] (Orr v Cobar). Accordingly, such a question does not raise a pure question of law.
8. A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime at [39]. In Orr v Cobar Management, Bathurst CJ and Bell P said at [60]:
"It is well established that a question of mixed fact and law is to be differentiated from, and is not, a 'question of law'. In Thomas v R, ... Dixon J noted that a 'mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law'. Thomas was cited with approval in Iannella v French [1968] HCA 14; (1968) 119 CLR 84 at 114‑115; [1968] HCA 14; see also Williams v R [1986] HCA 88; (1986) 161 CLR 278 at 287 and 314; [1986] HCA 88; cf. Lavorato v R (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [13]."
10. An appeal is "on" any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid. Whilst the following cases were decided in a different context to the present, see Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353-354; [1990] HCA 33.
11. An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.
One explanation for the Tribunal's lack of reasons might be the length of time between the hearing and judgment. While eleven months does not amount to an extreme delay, that period does not appear to have served the Tribunal in examining the entirety of the evidence, and the absence of adequate reasons why Ms Augustin and the Appellant's evidence was not accepted, and why Ms Millar's evidence was accepted without proper regard to the body of evidence, may indicate the delay impacted the Senior Member's capacity to properly assess each witness' credibility: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 at [10]
(2003) 214 CLR 118
(1996) 141 ALR 70
(1986) 162 CLR 24
(2017) 95 NSWLR 597
(2010) 241 CLR 320
(1999) 198 CLR 334
(1986) 161 CLR 278
(1968) 119 CLR 84
(2012) 82 NSWLR 568
(1985) 4 NSWLR 139
(1990) 170 CLR 321