NCAT Appeal Panel Decisions Digest Issue 10 of 2023 | The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue features summaries of the following Appeal Panel decisions handed down in October 2023:
Cumberland Council v FMH [2023] NSWCATAP 274: An Appeal Panel granted leave to appeal (to the extent required) and allowed an appeal from a decision of the Tribunal which found that the appellant had breached a number of Information Privacy Principles in the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and Health Privacy Principles in the Health Records and Information Privacy Act 2002 (NSW). The Tribunal had failed to conduct a broader inquiry into what was “reasonably contemplated” by the alternative law, as provided for in s 25(b) of the PPIP Act, which, in this case, comprised the orders made by the Tribunal in earlier proceedings, the regime set out in the Civil and Administrative Tribunal Act 2013 (NSW) and the common law (including the obligation to afford procedural fairness).
Stewart v Scott [2023] NSWCATAP 279: An Appeal Panel upheld an appeal from a decision of the Tribunal to dismiss a renewal application in circumstances where the original Tribunal decision had been unsuccessfully appealed. The Appeal Panel held that the term “the subject of an internal appeal” in cl 8(5)(b) of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW), when applied to an appeal which has been concluded, should be construed as meaning “the subject of a successful internal appeal”.
YFA v Secretary, NSW Ministry of Health [2023] NSWCATAP 285: An Appeal Panel allowed an appeal from a decision of the Tribunal which had found that the Secretary of the NSW Ministry Health was not a qualifying authority or body within the meaning of s 49J(1) of the Anti-Discrimination Act 1977 (NSW). The Appeal Panel held that the phrase “is empowered” in s 49J is not confined to some legal right or power to confer or grant the relevant authorisation, approval or qualification. The Appeal Panel set aside the Tribunal’s orders and made orders to deal with (by way of a new hearing) the question of fact as to whether the Secretary had de facto power to grant the relevant approval.
Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | 1. What factors are relevant to the exercise of the discretion to appoint a separate representative under s 45(4)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act)?
YFM v NSW Trustee and Guardian [2023] NSWCATAP 266 Guardianship Division A Britton, Deputy President; A R Boxall, Senior Member (Legal); M E Bolt, General Member
In sum: Only the obligations imposed by the guiding principle in the NCAT Act and the principles in s 4 of the Guardianship Act 1987 (NSW) (where applicable) constrain the exercise of the discretion to appoint a separate representative under s 45(4)(c) of the NCAT Act. However, s 4(a) of the Guardianship Act does not require the Tribunal to adopt a protectionist approach. The subject person’s attitude to the appointment of a separate representative and restricting the subject person’s decision-making as little as possible are relevant factors the Tribunal is required to take into account.
Facts: On 17 March 2020, YFN (the Mother) executed instruments appointing the appellant (the Daughter) and YFO (the Son), jointly and severally as her enduring guardians and attorneys (2020 Instruments). On 10 August 2022, the Mother revoked the 2020 Instruments and executed instruments appointing the Son as her sole enduring guardian and sole attorney (the 2022 Instruments). The Daughter applied to NCAT for review of the revocation of the 2020 Instruments, review of the 2022 Instruments, and seeking financial management and guardianship orders in respect of the Mother. On 18 January 2023, the Tribunal gave leave under s 45(1)(b) of the NCAT Act for each of the Mother, the Son and the Daughter to be represented by different solicitors. On 15 March 2023, the Daughter made an application for an order that the Mother be separately represented under s 45(4)(c) of the NCAT Act. On 20 March 2023, the Tribunal declined to exercise the discretion to order that the Mother be separately represented. The Daughter appealed this decision.
Held (refusing leave to appeal): (i) The Daughter complained that the Tribunal had disposed of the separate representation application solely or largely on the basis that there was no utility in the Mother being separately represented in circumstances where she was already legally represented, and in doing so, the Tribunal failed to give paramount consideration to the welfare and interests of the Mother, as required by s 4(a) of the Guardianship Act. The Appeal Panel rejected this submission; a fair reading of the Tribunal’s reasons did not support the submission. That the Tribunal dealt with the argument that it would be in the best interests of the Mother to be separately represented before the section headed “Decision” does not imply that the Tribunal failed to consider the argument. It was evident from the Tribunal’s reasons that the Tribunal was alive to the argument that the solicitor might not act in the Mother’s best interests (at [50]-[55]).
(ii) The only constraints on the Tribunal’s broad discretion in s 45(4)(c) were the obligations in the guiding principle of the NCAT Act and the principles in s 4 of the Guardianship Act. “Welfare and interests” is not a term defined by the Guardianship Act, and it was for the Tribunal to determine the factors which were relevant to an assessment of the Mother’s welfare and interests in the circumstances of the case. The Appeal Panel rejected the Daughter’s suggestion that s 4(a) of the Guardianship Act requires a protectionist approach. The Tribunal was required to take into account the Mother’s opposition to the appointment of a separate representative and to restrict the Mother’s decision-making as little as possible. These were relevant factors (at [49], [56]-[57]).
(iii) Absent evidence to the contrary, the Tribunal is entitled to assume that a lawyer representing a party has received instructions and has the professional capacity to make an assessment of the client’s best interests in the known circumstances of the case. Similarly, the Tribunal was entitled to assume that the Mother’s legal representative would protect her welfare and interests (at [58]-[59]).
(iv) The Appeal Panel was not required to come to a concluded view as to whether s 45(4) of the NCAT Act permits the Tribunal to appoint a person to represent a party under s 45(4)(b) and order that a party be separately represented under s 45(4)(c). The Tribunal had not disposed of the separate representation application on that basis, although it did consider the application on the construction of the NCAT Act that it permitted the Tribunal to make orders under both s 45(4)(b) and (c). Reading the Tribunal’s reasons fairly and in context, the Tribunal did not fail to appreciate the distinction between the role and obligations of a separate representative and a legal representative (at [47], [63]).
| 2. Is the common law included in “any other law” as contemplated by the exemption in s 25(b) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act)?
Cumberland Council v FMH [2023] NSWCATAP 274 Administrative and Equal Opportunity Division Hennessy, ADCJ, Deputy President; Dr R Dubler SC, Senior Member
In sum: Section 25(b) of the PPIP Act permits non-compliance with provisions of the PPIP Act if such non-compliance is “otherwise permitted”, “necessarily implied” or “reasonably contemplated” under an Act or “any other law”. “Any other law” is not limited to statute, and encompasses the common law, including its obligations of procedural fairness. Such obligations will form part of the “alternative law” in respect of which the question of whether disclosure was “reasonably contemplated” must be considered.
Facts: The respondent (FMH) commenced proceedings against the appellant (Council) for administrative review (First Proceeding) in relation to the conduct of certain Council employees (the Witnesses). The Tribunal made timetabling orders for the filing and service of FMH’s Points of Claim and any evidence intended to be relied upon, and the Council’s Points of Defence (First Proceeding Orders). Those documents contained the personal, health and confidential information of FMH (Personal and Health Information). In preparing evidence and witness statements for the First Proceeding, the Council provided to the Witnesses some or all of those documents. FMH applied to NCAT for administrative review of this conduct. The Tribunal found that the Council breached Information Privacy Principles 5, 10, 11 and 12 (ss 12, 17, 18 and 19 of the PPIP Act) and Health Privacy Principles 4, 5, 10 and 11 (ss 4, 5, 10 and 11 of Sch 1 to the Health Record Information Protection Act 2002 (NSW) (HRIP Act)). The Tribunal found that the Exemption Provisions in s 25 of the PPIP Act and ss 5(2), 10(2) and 11(2) of the HRIP Act did not apply, in that the First Proceeding Orders did not permit, necessarily imply or reasonably contemplate that all of the Personal and Health Information be given to the Witnesses. The Council appealed.
Held (allowing the appeal): (i) The Council argued that, in the circumstances, the First Proceeding Orders, the scheme of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and the principles of procedural fairness operated to permit, necessarily imply or reasonably contemplate, non-compliance with ss 17, 18 and 19 of the PPIP Act. The Appeal Panel found that the Tribunal had incorrectly applied the principles, as set out in PN v Department of Education and Training (GD) [2010] NSWADTAP 59 and Registrar of Births, Deaths and Marriages v Kelloway [2023] NSWCATAP 231. A proper application of the principles ought to have led to the conclusion that the Council’s disclosures were reasonably contemplated by the First Proceeding Orders and the legal necessity of the Council to respond to FMH’s case in the First Proceeding (at [53], [55], [93]-[95]).
(ii) The Appeal Panel held that “any other law”, within the meaning of s 25(b) of the PPIP Act, is not limited to statute and encompasses the common law. As a result, the Tribunal was required to consider not only what was “reasonably contemplated” by the First Proceeding Orders and the Council’s obligations under the NCAT Act, but also what would be permitted or reasonably contemplated under the common law, which affords procedural fairness to a respondent. Procedural fairness arises from the common law and is given expression in s 38 of the NCAT Act; the combination of the common law principles and statutory provisions in the regime set out in the NCAT Act comprise the “alternative law” in respect of which the question of whether disclosure was “reasonably contemplated” must be considered (at [96]-[101]).
(iii) There was error in the Tribunal’s approach to the “alternative law”. The Tribunal’s approach was contrary to the line of authority commencing with PN, taking a narrow view of the s 25(b) exemption, and requiring a microscopic examination rather than a broad enquiry of what is reasonably contemplated by the alternative law. The Appeal Panel also found that the Tribunal failed to properly appreciate that the Personal and Health Information had been served on the Council by FMH, and in doing so, FMH had asserted that all of the material was relevant to the First Proceeding. Taking a broad view, the Appeal Panel held that evidence served by an applicant upon a respondent in administrative review proceedings would be reasonably contemplated to have been provided to the witnesses against whom allegations have been made, in order to respond to the allegations. The Appeal Panel held that the Tribunal ought to have found that disclosure of the Personal and Health Information was reasonably contemplated by the alternative law in question, and as a result, s 25(b) of the PPIP Act and the relevant provisions of the HRIP Act exempted compliance (at [102]-[110]).
(iv) The Council also submitted that the Tribunal erred in finding that the Personal and Health Information was not unsolicited and therefore “collected”, such that the “collection principles” applied. The Appeal Panel held that the Tribunal’s approach was contrary to the weight of decisions of the Appeal Panel and its predecessor. Although NCAT is not bound by the doctrine of strict precedent, the Tribunal ought to have followed the reasoning and approach set out in previous decisions and not the approach that it did. It could not be meaningfully said that the Council consented to or invited FMH’s actions; it could not be said that the Council solicited the Personal and Health Information. Further, responding to or defending administrative review proceedings cannot be regarded as the exercise of the Council’s “administrative purposes”, being the exercise of functions of a Local Council. The Personal and Health Information was “unsolicited” for the purposes of the PPIP Act and the HRIP Act (at [111], [134]-[156]). | 3. Does cl 8(5)(b) of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) preclude a renewal application in respect of an order which has been the subject of an appeal but not varied on appeal?
Stewart v Scott [2023] NSWCATAP 279 Consumer and Commercial Division - Home Building D Robertson, Senior Member; J S Currie, Senior Member
In sum: Clause 8(5)(b) of Sch 4 to the NCAT Act does not preclude the bringing of a renewal application in respect of a Tribunal order which has been unsuccessfully appealed. To avoid the illogical and anomalous results which flow from a literal interpretation of cl 8(5)(b), the Appeal Panel held that the term “the subject of an internal appeal”, when applied to an appeal which has been concluded, should be construed as meaning “the subject of a successful internal appeal”.
Facts: In 2019, the appellants (homeowners) commenced proceedings against the respondent (builder) alleging defective works and seeking compensation for the reasonable cost of rectification. On 23 April 2021, the Tribunal made orders that the builder carry out certain rectification work, and gave leave to the homeowners to renew the proceedings if the works specified in Order 3 were not performed in the specified period (2021 Orders). Both parties appealed; the Appeal Panel dismissed both appeals and thus the Tribunal’s 2021 Orders were not disturbed. On 10 January 2022, the homeowners filed an application for renewal of the proceedings, claiming compensation in lieu of the work orders. The Tribunal held that cl 8(5)(b) of Sch 4 to the NCAT Act operated to prevent the homeowners pursuing their renewal application and dismissed the application. The homeowners appealed.
Held (allowing the appeal): (i) The Appeal Panel held that the Tribunal’s decision to dismiss the homeowners’ renewal application was not a summary dismissal, having been dismissed after a full hearing on all issues. That the application was dismissed for want of jurisdiction does not render the dismissal a summary dismissal. Thus, the appeal was from a final order, rather than an interlocutory order, and so the homeowners had a right of appeal on a question of law. The proper interpretation of cl 8(5)(b) of Sch 4 to the NCAT Act was a question of law. The Appeal Panel noted that, were it incorrect in this conclusion, it would have granted leave to appeal on the basis that the error of principle resulted in a substantial injustice to the homeowners, who would otherwise be denied the opportunity to have their renewal application determined on its merits (at [41]-[45], [69]-[70]).
(ii) A literal reading of cl 8(5) of Sch 4 to the NCAT Act would preclude the lodgement of any renewal application whenever an appeal is filed against the decision that is the subject of the application, regardless of which party filed the appeal and whether the appeal was successful. Such an interpretation would have impractical consequences which could not have been intended. There is no logical reason why a party should be denied a right of renewal merely because an unsuccessful appeal has been brought against a work order. It would be anomalous if a party was left only with the remedy of bringing proceedings for contempt merely because a work order, which has not been complied with, was the subject of an unsuccessful appeal, particularly where the appeal was lodged by the party required to carry out the work order (at [46]-[51], [55]-[57]).
(iii) The Appeal Panel held that, to avoid the illogical and anomalous results which flow from the Tribunal’s interpretation of cl 8(5)(b), the term “the subject of an internal appeal”, when applied to an appeal which has been concluded, should be construed as meaning “the subject of a successful internal appeal”. A party with the benefit of a work order should not have to surrender the possibility of renewing the proceedings in the event the appeal fails and the work order is not complied with. The Appeal Panel considered that the decision in Mehr v Lau [2022] NSWCATAP 15 was correct. The Appeal Panel also rejected the submission that cl 8(5)(b) operates differentially depending on which party brought the appeal (at [52], [59], [67]).
(iv) The earlier Appeal Panel decision did not alter the 2021 Orders or the outcome of the Tribunal’s original decision. That Appeal Panel refused leave to appeal and dismissed the appeals. The Appeal Panel held that the Tribunal had made an error with respect to a question of law, being the proper interpretation of cl 8(5)(b) of Sch 4 to the NCAT Act, and upheld the appeal. The Tribunal’s order dismissing the renewal application was set aside and the matter was remitted for determination of the renewal application ([64]-[66], [71]-[78]). | 4. Does the phrase “is empowered” in s 49J of the Anti-Discrimination Act 1977 (NSW) (ADA) require the authority or body to have an express legal right or power to confer or grant the relevant authorisation, approval or qualification?
YFA v Secretary, NSW Ministry of Health [2023] NSWCATAP 285 Administrative and Equal Opportunity Division Hennessy, ADCJ, Deputy President; Dr R Dubler SC, Senior Member
In sum: The phrase “is empowered” in s 49J of the ADA is not confined to some legal right or power to confer or grant the relevant authorisation, approval or qualification. The Appeal Panel determined that the ordinary and grammatical meaning of “empowered”, alongside the long title of the ADA and the remedial and beneficial nature of the ADA, supported a broad construction of the phrase that encompasses a situation where, as a matter of “de facto power”, policy or practice, the grant of an approval by an “authority or body” enables, or provides the means or ability, for a healthcare worker to perform certain procedures that facilitates the practice of that healthcare worker’s profession.
Facts: In 2010, YFA was accepted as a trainee neurosurgeon. In March 2014, YFA was diagnosed with Human Immunodeficiency Virus (HIV). The NSW Health policy in place at that time provided that healthcare workers diagnosed with HIV were not permitted to perform expose prone procedures (EPPs), which meant YFA could not undertake operations required to continue his traineeship. In about December 2015, the respondent (Secretary) introduced interim guidelines that permitted a person diagnosed with HIV to perform EPPs where certain conditions were met. YFA continued his traineeship in public health facilities between February 2016 and February 2018. In May 2018, YFA was advised that the interim guidelines did not apply to private health facilities. In December 2019, YFA made a complaint to the President of the Anti-Discrimination Board, which was referred to NCAT for hearing. YFA alleges that the Secretary discriminated against him on the ground of his HIV status pursuant to s 49J of the ADA, which makes it unlawful in certain circumstances for a qualifying body to discriminate against a person on the ground of disability. That is, the Secretary failed to confer on YFA an approval that is needed for or facilitates the practice of a profession. The Tribunal held that the Secretary was not a qualifying authority or body within the meaning of s 49J of the ADA, and dismissed YFA’s complaint; YFA appealed.
Held (allowing the appeal): (i) A dispute arose during the appeal as to what was put by YFA to the Tribunal at first instance. The Appeal Panel found that YFA’s case as put was not that the Secretary was empowered by a legislative provision to grant the relevant approval or authorisation, but that the relevant approval was in respect of healthcare workers directly. Relying on the extended definitions in s 4 of the ADA, YFA’s case was that as a matter of policy or practice, private health facilities followed policy directives issued by the Secretary and thus at the relevant time, the Secretary could have granted the relevant approval for those in YFA’s position to perform EPPs in private health facilities. On YFA’s case, this means that the Secretary had de facto power to grant the relevant approval and therefore acted unlawfully and contrary to s 49J of the ADA in refusing or failing to grant the approval to YFA on the ground of his HIV status (at [58]-[63]).
(ii) The Secretary argued that the proper construction of the phrase “is empowered” in s 49J of the ADA means the authority or body must have the legal power to confer, renew or extend a relevant authorisation or qualification. The Appeal Panel found that the ordinary and grammatical meanings of “empower” and “approval”, by reference to their dictionary definitions, supported the conclusion that s 49J encompasses a situation where, as a matter of “de facto power”, policy or practice, the grant of an approval by an “authority or body” enables, or provides the means or ability, for a healthcare worker to perform EPPs that facilitates the practice of that healthcare worker’s profession. Further, the absence of the words “by law” after “empowered” supports the broader meaning of the term as contended by YFA. A broad construction is also consistent with the long title of the ADA and the ADA’s remedial and beneficial nature. The Appeal Panel held that the phrase “is empowered” in s 49J of the ADA should not be confined to cases where the relevant authority or body has statutory or other express legal power to grant the relevant approval (at [53], [65]-[75]).
(iii) The Appeal Panel held that the Tribunal was correct to conclude that there was no express legal right or statutory power by which the Secretary could grant the relevant approval and that under the legislative framework set out in the Tribunal’s decision, each private health facility may determine whether a person can undertake EPPs in that facility. However, in focussing its enquiry on these matters, the Tribunal did not address the entirety of YFA’s case as it was put to the Tribunal. The Appeal Panel found that the Tribunal erred in failing to deal with YFA’s case as put and allowed the appeal. The Appeal Panel made orders to deal with the question of fact as to whether the Secretary had de facto power to grant the relevant approval (at [75]-[78], [85]-[89]). | | | YFM v NSW Trustee and Guardian [2023] NSWCATAP 266 Guardianship Division Decision of: A Britton, Deputy President; A R Boxall, Senior Member (Legal); M E Bolt, General Member Catchwords: APPEALS — leave to appeal from interlocutory decision to decline to exercise the discretion to order that a party be separately represented under Civil and Administrative Tribunal Act 2013 (NSW), s 45(4)(c) FRESH EVIDENCE — whether new evidence reveals that solicitor breached, or might breach Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) GUARDIANSHIP — whether Tribunal to give paramount consideration to welfare and interests of the subject person as required by s 4 Guardianship Act 1987 (NSW) — meaning of expression “welfare and interests” in s 4 Guardianship Act | Lee v Taylor [2023] NSWCATAP 267 Consumer and Commercial Division - Residential Tenancy Decision of: I R Coleman SC ADCJ, Principal Member; R C Titterton OAM, Senior Member Catchwords: APPEAL – whether appellant establishes error on question of law - whether appellant establishes grounds for leave to appeal – whether “new evidence” relied on by appellant was not reasonably available at time of original hearing | FleetServ Pty Ltd v Maiden Co Pty Ltd [2023] NSWCATAP 268 Consumer and Commercial Division - Motor Vehicles Decision of: P Durack SC, Senior Member; G Ellis SC, Senior Member Catchwords: APPEALS – procedural fairness principles – claim of procedural unfairness concerning money order -orders made by Tribunal in absence of the appellant – duty of a party to cooperate with the Tribunal – fact dependent questions – totality of the circumstances – leave to appeal by telephone or AVL granted and then set aside – controversy as to call from the Tribunal – appellant raised Covid-19 affecting its staff and relevant director as an issue – dispute as to credibility of explanation for non-appearance – sworn evidence taken on appeal – relevant director not available when call from the Tribunal received – reference to making a second call – no denial of procedural fairness in all the circumstances – appeal from interlocutory order setting aside leave to appear by telephone or AVL was moot or any error did not result in substantial injustice | Daniels v Sack [2023] NSWCATAP 269 Consumer and Commercial Division - Residential Tenancy Decision of: A Suthers, Principal Member; G Sarginson, Senior Member Catchwords: APPEALS – dismissal for want of prosecution – appellant as applicant hangs up on Tribunal during hearing – no House v The King error established. | | Treadgold-Svir v Dynamik Constructions Pty Ltd (No 2) [2023] NSWCATAP 271 Consumer and Commercial Division - Home Building Decision of: M Harrowell, Deputy President; A Lo Surdo SC, Senior Member Catchwords: COSTS – Applications by both parties – costs application includes appellant’s costs of proceedings at first instance – failure to prosecute the application for costs of the proceedings at first instance despite directions made – failure to appeal default order made in the proceedings at first instance – inappropriateness of Appeal Panel dealing with costs of the proceedings at first instance in these circumstances – limited success of appellant in appeal proceedings – departure from the usual order that a successful party be entitled to the costs of the appeal where r 38 applies PRACTICE AND PROCEDURE – non-publication order | Palmieri v Think Creative & Print Pty Ltd [2023] NSWCATAP 272 Consumer and Commercial Division - General Decision of: M Harrowell, Deputy President; D Goldstein, Senior Member Catchwords: APPEALS – challenge to findings concerning formation of contract, terms and whether contract breach – whether respondent failed to comply with the Australian Consumer Law (NSW) concerning consumer guarantees – whether leave to appeal should be granted on matters other than those raising a question of law | Ugur v Public Guardian [2023] NSWCATAP 273 Administrative and Equal Opportunity Division Decision of: A Balla, ADCJ, Principal Member; Dr R Dubler SC, Senior Member Catchwords: ADMINISTRATIVE ORDER – government information – reasonable searches – whether the Tribunal ought to have disclosed more documents APPEALS – whether the Appeal Panel ignored evidence or made findings without evidence – whether the Appellant was denied procedural fairness | Cumberland Council v FMH [2023] NSWCATAP 274 Administrative and Equal Opportunity Division Decision of: Hennessy, ADCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: ADMINISTRATIVE REVIEW – Privacy and Personal Information Protection Act 1998 (NSW) – IPPs 5, 10, 11 and 12 – Health Record Information Protection Act 2002 (NSW) – HPPs 4, 5, 10 and 11 – whether s 25(b) of the PPIP Act applied and exempted compliance with the relevant IPPs and HPPs – whether information was unsolicited for the purposes of IPPs 10, 11 and HPPs 10 and 11 APPEALS – whether the Appellant was denied procedural fairness | Noor v The Owners - Strata Plan No 72939 (No 3) [2023] NSWCATAP 275 Consumer and Commercial Division - Strata Scheme Decision of: G Blake AM SC, Senior Member; J S Currie, Senior Member Catchwords: COSTS — Party/Party — Appeals – amount in dispute exceeds $30,000 – general rule that costs follow the event – issues severable – respondent successful on one issue – whether order for costs should reflect respondent’s partial success and unreasonable conduct of the appellant | YDV v YDT [2023] NSWCATAP 276 Guardianship Division Decision of: A Britton, Deputy President; D Charles, Senior Member; B McPhee, Senior Member Catchwords: GUARDIANSHIP — decision to revoke a financial management order — s 25P(2) of the Guardianship Act 1987 (NSW) — meaning of expression “is capable of managing his or her affairs” in s 25P(2)(a) of the Guardianship Act 1987 (NSW) EVIDENCE — Expert evidence in proceedings in the Guardianship Division of NCAT—— whether expert tailored their opinion to advantage a party APPEALS — whether finding that the subject person has capacity to manage her affairs was “against the weight of evidence” APPEALS — whether to grant leave to appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) APPEALS — fresh evidence — whether the power conferred by 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) to deal with an appeal by way of a new hearing should be exercised | Englebrecht v Pryor [2023] NSWCATAP 278 Consumer and Commercial Division - Motor Vehicles Decision of: A Suthers, Principal Member; P Durack SC, Senior Member Catchwords: APPEALS – claim under the Australian Consumer Law (NSW) – application of s 54(7) of that legislation – failure to engage with a clearly articulated case – admissibility of evidence where rules of evidence inapplicable | Stewart v Scott [2023] NSWCATAP 279 Consumer and Commercial Division - Home Building Decision of: D Robertson, Senior Member; J S Currie, Senior Member Catchwords: ADMINISTRATIVE LAW – Particular administrative bodies – NSW Civil and Administrative Tribunal – Renewal of proceedings in the Consumer and Commercial Division – Civil and Administrative Tribunal Act 2013 (NSW) Schedule 4 clause 8 – Restriction on renewal application if the order not complied with “is or has been the subject of an internal appeal” – Restriction does not apply where order not varied on internal appeal | Harasty v The Owners- Strata Plan No.13031, No.2 [2023] NSWCATAP 280 Consumer and Commercial Division - Strata Scheme Decision of: S Thode, Principal Member; J S Currie, Senior Member Catchwords: COSTS – costs of appeal – special circumstances – late withdrawal of allegation by Costs Respondent where other grounds not pursued at appeal hearing – where Costs Respondent warned at Directions Hearing as to possibility of costs order in those circumstances – effect of withdrawal as a surrender – proportion of costs properly payable | Ikona Developments Pty Ltd v Tierney [2023] NSWCATAP 281 Consumer and Commercial Division - Home Building Decision of: R C Titterton OAM, Senior Member; L Wilson, Senior Member Catchwords: APPEALS – questions of law – procedural fairness APPEALS – measure of damages – fresh evidence | FHH v Port Stephens Council (No 2) [2023] NSWCATAP 282 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; Dr R Dubler SC, Senior Member Catchwords: COSTS – whether special circumstance exists – whether costs should be awarded against self-represented party said to engage in vexatious or frivolous conduct or advancing contentions that are misconceived – whether a lump sum order should be made | | Stevanovski v Man [2023] NSWCATAP 284 Consumer and Commercial Division - Strata Scheme Decision of: A Suthers, Principal Member; G Burton SC, Senior Member Catchwords: APPEALS – real property – strata management – appointment of strata manager by Tribunal | YFA v Secretary, NSW Ministry of Health [2023] NSWCATAP 285 Administrative and Equal Opportunity Division Decision of: Hennessy, ADCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: HUMAN RIGHTS – disability discrimination – whether the Secretary, NSW Ministry of Health is a qualifying ‘authority or body’ within the meaning of s 49J(1) of the Anti-Discrimination Act 1977 (NSW) in respect of private health facilities | Amirchian v The Owners – Strata Plan no 99357 [2023] NSWCATAP 286 Consumer and Commercial Division - Strata Scheme Decision of: S Westgarth, Deputy President; M Gracie, Senior Member Catchwords: APPEAL – claim under s 106 of the Strata Schemes Management Act 2015 (NSW) for compensation as a lot owner – whether the evidence established loss – whether the reasons given by the Tribunal at first instance were adequate and/or reasonable – consideration of the obligations under s 52 of the Residential Tenancies Act 2010 (NSW) – whether there should be a remittal or whether the Appeal Panel should award compensation in favour of the Appellant having determined to set aside the decision at first instance. | Murugesu v Papoulias [2023] NSWCATAP 287 Consumer and Commercial Division - Residential Tenancy Decision of: S Thode, Principal Member; D Goldstein, Senior Member Catchwords: APPEAL – RESIDENTIAL TENANCY – dismissal of compensation claim – no error of law – no issue of principle | Wu v Fairfield City Council [2023] NSWCATAP 288 Administrative and Equal Opportunity Division Decision of: A Britton, Deputy President; Dr J Lucy, Senior Member Catchwords: APPEALS – PROCEDURAL FAIRNESS – Where Tribunal decided to dispense with a hearing – Whether Tribunal gave appellant an opportunity to be heard about decision to dispense with a hearing APPEALS – JURISDICTION – Whether Tribunal erred in finding that it lacked jurisdiction to determine the appellant’s application | Snounou v TMR Investments Group Pty Ltd [2023] NSWCATAP 289 Consumer and Commercial Division - Residential Tenancy Decision of: T Simon, Principal Member; Dr R Dubler SC, Senior Member Catchwords: RESIDENTIAL TENANCY – whether the Tribunal wrongly allowed evidence – whether the Tribunal wrongly ordered compensation for the landlord on termination of the tenancy | Curry v Eftimovski [2023] NSWCATAP 290 Consumer and Commercial Division - Residential Tenancy Decision of: T Simon, Principal Member; Dr R Dubler SC, Senior Member Catchwords: RESIDENTIAL TENANCY – whether or not eviction notice was a retaliatory notice pursuant to s 115 of the Residential Tenancies Act 2010 (NSW) – whether the Tribunal erred in its award of compensation for failure by the landlord to effect repairs | City Removalists & Storage Pty Ltd v Glavanics [2023] NSWCATAP 300 Consumer and Commercial Division - General Decision of: G Blake AM SC, Senior Member; R C Titterton OAM, Senior Member Catchwords: APPEALS – whether the Tribunal erred in allowing that there was a contract entered into between the parties in circumstances were one party was not aware that an agent was acting for an undisclosed principal – rationale for the doctrine of undisclosed principal | | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication. |
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