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| NCAT Appeal Decisions Digest April 2016 Decisions
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The NCAT Appeal Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Appeal Panel.
Under the Civil and Administrative Tribunal Act 2013, parties have a right to appeal to the internal Appeal Panel from any decision made by the Tribunal in proceedings for a general decision or an administrative review decision. Detailed information about appeals is available on the NCAT website.
The following NCAT Appeal Panel decisions were handed down during the month of April 2016. New in this issue are summaries of significant Appeal Panel decisions. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| Significant Decisions The following significant decisions were handed down by the NCAT Appeal Panel during April 2016.
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| Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: O'Connor ADCJ, Deputy President Appeals; P Molony, Senior Member
Summary: The Appeal Panel, by way of rehearing, considered whether the Commissioner of Police’s decision in respect of applications for access to various categories of information, under the Government Information (Public Access) Act 2013 (the Act), was the correct and preferable one in the circumstances. Significantly, the decision provides guidance on the operation of s 58(1)(f) of the Act, which provides:
An agency decides an access application for government information by:
(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.
The Appeal Panel held (at [76]):
[76] … in justifying a refusal based on s 58(1)(f) the agency should explain why it is necessary for it to go beyond the most usual grounds for adversely responded to an application (s 58(1)(d) and s 58(1)(b)). (Two of the [other] grounds deal with relatively exceptional situations: information already available (s 58(1)(c)) and application too burdensome to process (s 58(1)(e) as informed by s 60).)
The Appeal Panel suggested that, for all types of government information other than that kind specified in Schedule 1, an agency should (when relying on s 58(1)(f)):
[77] … explain (in confidential session) whether any information in its possession that is the subject of a s 58(1)(f) response is of a kind that falls within Schedule 1 or is of a kind that would have been likely to have won protection applying the balancing test of s 13. Where the underlying circumstance is that the information does not exist, but the agency does not wish to confirm or deny that fact, an agency should for similar reasons, explain whether any serious searches have been undertaken to establish whether the information exists.
An agency is not, however, required to establish as a pre-condition to a decision based on s 58(1)(f) that reliance on s 58(1)(d) or s 58(1)(b) would have been successful (at [79]). |
| Ohman v NSW Land and Housing Corporation [2016] NSWCATAP 90
Consumer & Commercial Division - Social Housing
Judgment of: Wright J, President; D Robertson, Senior Member
Summary: Ohman, the appellant, was a social housing tenant of the respondent landlord, the NSW Land and Housing Corporation. He appealed against a decision to terminate the tenancy agreement pursuant to s 91 (use of premises for illegal purposes) of the Residential Tenancies Act 2010 (NSW) (RTA). The decision provides guidance on what are relevant and irrelevant considerations for the purposes of s 91(1)(b) and s 152 of the RTA:
[41] The specific wording of [ss 91(2) and 152] taken together with the scope and purpose of the RTA, including its role in regulating social housing tenancy agreements, indicate that the effect on the landlord, even when a social housing provider, and the landlord’s ability to provide accommodation to other tenants, including those who qualify for social housing, could not be said to be so extraneous to the exercise of the discretion as to prohibit such a consideration being taken into account.
The decision also considered the meaning of ‘serious’ in s 152:
[69] These definitions indicate that “serious” in the context of s 152 of the RTA is designed to designate those adverse effects or breaches which are important or significant for the purposes of deciding whether or not to terminate a social housing tenancy agreement. This would exclude trivial or insubstantial effects or breaches.
Although s 152 was repealed in 2015, the Appeal Panel’s reasoning on the meaning of ‘serious’ may be applicable to other provisions of the RTA that use the term ‘serious’. |
| Chief Commissioner of State Revenue v Fitzpatrick Investments Pty Limited [2016] NSWCATAP 91
Administrative & Equal Opportunity Division - Revenue
Judgment of: Dr J Renwick SC; R Deutsch, Senior Members
Summary: This decision provides guidance on the transitional provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and, in particular, the costs provisions in the CAT Act and Administrative Decisions Tribunal Act 1997. The issue before the Appeal Panel was whether, in relation to ‘unheard proceedings’ under clause 7(3)(b) of Schedule 1 of the CAT Act, s 60 of the CAT Act was:
1. A permissible head of power to award costs along with s88;
2. The only permissible head of power to award costs; or
3. A wholly impermissible head of power to award costs.
The Appeal Panel held (at [18]) that NCAT can choose to apply the NCAT Act or the ADT Act, ie option 1 in the above list. |
| Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80
Consumer & Commercial Division - Motor Vehicle
Judgment of: J Redfern, Principal Member; K Rosser, Senior Member Summary: The appellants (the Safis) purchased a Chrysler Jeep Cherokee Trailhawk (the vehicle) from the respondent dealer. They subsequently claimed it had major defects and sought a refund, which they allege was wrongly refused. The Tribunal at first instance dismissed the Safis’ claim. The Appeal Panel allowed the Safis’ appeal, remitted the proceedings for reconsideration and held:
1. At [67]: ‘the Tribunal had jurisdiction to hear and determine the claim made by [the Safis] under s 7 of the CCA as a consumer guarantee case pursuant to the ACL (NSW).’ Although the purchase price of the vehicle was in excess of $40,000 (the figure in s 3 ACL definition of ‘consumer’), the vehicle ‘is a good of a kind “ordinarily acquired for personal, domestic or household use or consumption”,’ even though it was in fact used and acquired for the purpose of a business use (at [65]–[66]).
2. At [80]–[84]: that the Tribunal had erred in giving no weight to Internet material (articles from specialist online publishing companies authored by journalists with specialist knowledge of the automotive industry) because, while the articles were hearsay, they still carried weight. The Tribunal is not bound by ‘the rules of evidence (s 38(1) of the Act) and rejecting material on the basis that it does not satisfy the rules of evidence would be contrary to the Act and a denial procedural fairness.’
3. At [101] (summarising the cases and commentary): ‘where there is non-compliance with the guarantee of acceptable quality, as alleged in this case, we find that the following matters will be relevant to the question of whether this amounts to a “major failure” under s 260(a) [of the ACL]’:
(1) A major failure may be constituted by one defect or a series of specific or individual defects which, when taken as a whole, constitute a major failure;
(2) The test of whether the goods “would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure” is an objective one;
(3) A “reasonable consumer” would expect teething problems, even in a new vehicle;
(4) The question to ask is whether the reasonable consumer, given the option of acquiring that particular good or alternatively purchasing either nothing or a different model, would not have acquired the good;
(5) Defects which result in goods failing to comply with the guarantee of acceptable quality will not invariably be a major failure and it will depend on the nature and extent of the failure; and
(6) The cost of repair, in proportion to the purchase price, and the question of whether the defects can be remedied easily in a timely manner are relevant considerations.
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| | Keyword Summaries
Keyword summaries for all NCAT Appeal Panel decisions made during April 2016.
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| Gussoni v Wilcox [2016] NSWCATAP 74
Consumer & Commercial Division - Home Building
Judgment of: A Coleman SC; J Lucy, Senior Members Catchwords: Home Building – Building claim - Objections as to evidence allegedly not dealt with by Tribunal – Whether evidence inadmissible – Whether right to cross examine denied – Adequacy of reasons – Whether Tribunal exposed its reasons for resolving points critical to the contest between the parties – Whether Tribunal failed to analyse the applicant’s evidence in competition with the respondent’s evidence which was apparently accepted – Failure to provide adequate reasons established |
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Lewer v Smith [2016] NSWCATAP 76
Consumer & Commercial Division - Tenancy
Judgment of: N Hennessy LCM, Deputy President; K Rosser, Senior Member Catchwords: APPEAL – residential tenancy agreement – false representations inducing a tenant to enter into a residential tenancy agreement– material findings of fact – adequacy of reasons |
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Staver v Pham [2016] NSWCATAP 77
Consumer & Commercial Division - Tenancy
Judgment of: L P Robberds QC; T Simon, Senior Member Catchwords: Residential Tenancies Act 2010 – termination order – order for payment of arrears of rent – dispute as to whether agreement existed that payment for a bond would be transferred to rent payable |
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Heartland Motors Pty Ltd v Piatow [2016] NSWCATAP 78
Consumer & Commercial Division - Motor Vehicle
Judgment of: J Redfern, Principal Member; S Thode, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – consumer claim – Australian Consumer Law – whether vehicle with production and compliance plate date over 18 months old ‘new’ – misleading or deceptive conduct – whether representation that vehicle new – whether silence was misleading – obligation to disclose – reasonable expectation of disclosure – reference to new vehicle contract but date of model disclosed– failure to draw age of vehicle to attention of consumer at time of purchase – conduct likely to mislead or deceive consumer in the circumstances – not satisfied vehicle supplied by description – remedy and orders uncertain – appeal allowed in part − orders set aside and remitted to Tribunal as previously constituted for rehearing of remedy |
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CGU Insurance Limited v Plummer [2016] NSWCATAP 79
Consumer & Commercial Division - General
Judgment of: N Hennessy LCM, Deputy President; T Simon, Senior Member Catchwords: APPEAL – appellant did not attend first instance hearing because it did not receive Notice of Hearing – whether Appeal Panel should receive evidence and hear submissions that appellant would have made at first instance PRACTICE AND PROCEDURE – service of Notice of Hearing – difference between delivery and receipt – service deemed to have been effected when notice delivered PROCEDURAL FAIRNESS – notice of hearing – whether party has been given a reasonable opportunity to be heard if notice of hearing not received – party bound by manner in which proceedings were conducted at first instance EVIDENCE – whether fresh evidence should be received on appeal when party did not attend first hearing |
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Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80
Consumer & Commercial Division - Motor Vehicle
Judgment of: J Redfern, Principal Member; K Rosser, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – consumer claim – Australian Consumer Law (NSW) – Remedies for breach of consumer guarantees – Meaning of consumer – fault in transmission – whether Major failure – weight to be given to online articles and websites – Adequacy of reasons – No evidence for findings – Damages claim where trade-in upgrade instead of refund − proceedings remitted |
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John Peter Maiolo v Frank Chiarelli and Anor [2016] NSWCATAP 81
Consumer & Commercial Division - Home Building
Judgment of: J Harris SC; D Goldstein, Senior Members Catchwords: APPEAL - Natural Justice - Failure of Tribunal Member to accept a folder of evidence that the appellant intended to rely upon at the hearing. Possibility that a properly conducted hearing would have produced a different result |
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Buttie v Ahmed & Bhulu [2016] NSWCATAP 85
Consumer & Commercial Division - Home Building
Judgment of: P Durack SC; T Simon, Senior MembersCatchwords: APPEAL – home building dispute - breach of contract - money judgment on renewal of proceedings after failure to comply with work orders – incorrect amount ordered to be paid in absence of appellant –correct refusal of appellant’s request for adjournment – no consideration of proof of quantum |
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Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: O'Connor ADCJ, Deputy President Appeals; P Molony, Senior Member Catchwords: GOVERNMENT INFORMATION (PUBLIC ACCESS) – Rehearing – Review of agency determinations refusing information – Whether effect on audit functions of agency gave rise to an overriding public interest consideration against disclosure of certain information requested – Whether decision justified that certain information requested was not held – Whether decision justified to refuse to confirm or deny that certain information requested is held by the agency because of an overriding public interest against confirming or denying that fact – Agency decision as to the set aside, and review application remitted for reconsideration in that regard. Government Information (Public Access) Act 2013, ss 12-15; s 58(1)(b), s 58(1)(d), s 58(1)(f) |
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BPU v NSW Trustee and Guardian (Costs) [2016] NSWCATAP 87
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: S Higgins, Principal Member; M Anderson, Senior Member Catchwords: APPEAL – internal appeal – appellant withdrew appeal – second respondent made an application for costs – whether special circumstances warranting an award of costs – appeal withdrawn shortly before the hearing – appeal lacked substance – cost order made |
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ZAR v NSW Trustee and Guardian [2016] NSWCATAP 88
Guardianship Division
Judgment of: N Hennessy LCM, Deputy President; J Lucy; B McPhee, Senior Members Catchwords: APPEAL – procedural fairness – party attended by phone – whether Tribunal should have telephoned her again after further evidence was given – findings without evidence or against the weight of the evidence – relevant considerations |
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Taylor v Moloney [2016] NSWCATAP 89
Consumer & Commercial Division - General
Judgment of: Marks ADCJ, Principal Member; D Goldstein, Senior Member Catchwords: Civil and Administrative Tribunal-necessary to establish statutory basis for exercise of jurisdiction and powers. Holiday Parks (Long Term Casual Occupation) Act-sec 34(2) does not create entitlement to make an order for compensation for cost of removal of goods |
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Ohman v NSW Land and Housing Corporation [2016] NSWCATAP 90
Consumer & Commercial Division - Social Housing
Judgment of: Wright J, President; D Robertson, Senior Member Catchwords: RESIDENTIAL TENANCY – Social Housing – termination of tenancy – Unlawful use of premises – whether the Tribunal took into account irrelevant considerations WORDS & PHRASES – “serious” – Residential Tenancies Act 2010 (NSW), s 152(1) |
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Chief Commissioner of State Revenue v Fitzpatrick Investments Pty Limited [2016] NSWCATAP 91
Administrative & Equal Opportunity Division - Revenue
Judgment of: Dr J Renwick SC; R Deutsch, Senior Members Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal Panel – Land Tax appeal withdrawn just prior to hearing – no order as to costs – appeal – did former costs provision apply – no legal error in applying current costs provision – no other error of law – appeal dismissed |
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MGB Building Pty Ltd v Hammond [2016] NSWCATAP 92
Consumer & Commercial Division - Home Building
Judgment of: S Westgarth, Deputy President; T Simon, Senior Member Catchwords: Whether sufficient findings of fact, whether evidence supported findings |
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McKean v Department of Justice [2016] NSWCATAP 93
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: O'Connor AM, ADCJ, Deputy President Appeals; J McAteer, Senior Member Catchwords: GOVERNMENT INFORMATION (PUBLIC ACCESS) – Agency refusal to disclose to student material relating to examination process – Affirmed by Tribunal – Appeal – Weighing by Tribunal of public interest considerations for and against disclosure – Nature of discretionary task -Whether Tribunal erred in law – Held not –Leave to extend appeal to other grounds refused – Appeal dismissed |
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