Australia: To Appeal Or Not To Appeal

The decision in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 involved an appeal to the New South Wales Court of Appeal on questions of administrative law from a decision of the Government and Related Employees Appeal Tribunal (Tribunal).


In 2007, the Respondent was dismissed from his position as a residential support worker with the NSW Department of Ageing, Disability and Home Care (Department).

The Tribunal allowed the Respondent's appeal against the dismissal, but nevertheless found that he was guilty of serious misconduct in the course of his duties through the development of "an inappropriate and unprofessional relationship" with two residents. The Tribunal ordered that the Respondent be reinstated but demoted from his grade and pay level, and placed on probation for one year. Additionally, the Respondent was granted continuity of employment but was not entitled to back-pay. The Tribunal's findings did not, however, include the most serious aspects of the allegations that had been originally found to be made out by the Director-General of the Department.

The Director-General subsequently appealed the Tribunal's decision as an appeal on a question of law, pursuant to section 54 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) (Act) and filed a summons seeking judicial review of the decision pursuant to section 69 of the Supreme Court Act 1970 (NSW).


In their judgment, Basten, Hodgson and Tobias JJA identified six issues for resolution:

  1. may an appeal be brought from an interlocutory decision of the Tribunal, or only from a final decision?
  2. must the Tribunal expressly identify a question of law, or can this be inferred?
  3. can the appellant run an action under a summons for judicial review?
  4. did the Tribunal ask the wrong question?
  5. did the Tribunal take into account irrelevant factors?
  6. did the Tribunal err in reinstating the Respondent on probation?

In relation to the first issue, Basten JA concluded that the relevant decision for an appeal is the final or operative decision or order, being an act adversely affecting rights claimed by the Department (referring to the judgment of Sheller JA in Clisdell v Commissioner of Police (1993) 31 NSWLR 555). However, his Honour did note that a decision was not limited to the final or operative order, but includes any decision which is a decision on a question of law.

With respect to the second issue, the Court found that it is not necessary that the Tribunal explicitly state and make a decision on a question of law. Rather, it is sufficient if a decision of the Tribunal is such that a resolution of a question of law is manifested in it. It was also noted by Basten JA that whilst it is not necessary for the Tribunal to expressly identify a question of law, an appellant must, in order to invoke the jurisdiction of the Court, precisely identify a decision of the Tribunal with respect to a matter of law.

In addressing the third issue, Basten JA noted that the language of the Act does not preclude relief provided by the Supreme Court Act. However, Basten JA noted that it was not necessary for the Department to invoke the judicial review jurisdiction of the Court because there is an implicit decision on a question of law, thus invoking the statutory right of appeal in the Act.

With regards to the fourth issue, the argument was that the Tribunal, by taking into account mitigating circumstances surrounding the Respondent, asked itself the wrong question as to whether the Tribunal's function was punitive or protective. The Department submitted that the Tribunal asked itself the question what punishment was appropriate for the Respondent's misconduct in all the circumstances. Hodgson J (with Tobias J agreeing) found that the Tribunal did not disregard its function as protective of the public interest rather than punishment of the individual, despite considering irrelevant mitigating circumstances. His Honour further considered the imposition of financial circumstances as an appropriate protective measure. However, Tobias JA disagreed, finding instead that the Tribunal did not avert to the imposition of financial consequences as having either a protective or punitive function.

On the fifth issue, Hodgson JA (with Tobias JA agreeing) found that the mitigating circumstances addressed by the Tribunal were not used in a way that was relevant to the Tribunal's function, but rather as factors that could be considered generally along with the need to protect the public interest. His Honour concluded that an error or law was manifested by the Tribunal treating those factors as relevant. Further, Basten JA found that the references to the Respondent's personal circumstances appear to have been relied upon for the purpose of diminishing the punitive effects of any order and the need for protection was not to be balanced or qualified in this way.

In relation to the final issue, the Court found that the Tribunal had no power to make an order of probation pursuant to the Act because the decision could not have been made by the decision-maker at first instance. Hodgson JA held that if it were intended that a statutory appellate tribunal be able to achieve a result that could not have been achieved by the decision-maker at first instance, this must necessarily be conveyed either expressly or by sufficiently clear implication.

After consideration of the issues outlined above, the Court of Appeal allowed the appeal, set aside the orders of the Tribunal and dismissed the summons seeking judicial review. The matter was remitted back to the Tribunal for reconsideration of appropriate orders, according to law.


When appearing before or reviewing a decision of a tribunal, it is imperative that you consider the powers of the relevant tribunal as contained within the requisite statute. As noted by Basten JA:

"The extraordinary growth of tribunals in this country over the past 30 years has seen an equivalent growth in the statutory appeal provisions with respect to decisions of those tribunals".

Therefore, it is imperative that tribunals, and those appearing before them, are conscious of the powers that they have and, perhaps more importantly, do not have.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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