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| NCAT Appeal Decisions Digest August 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) Internal 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 August 2016. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| The following case summaries are of significant decisions handed down by the NCAT Appeal Panel during August 2016.
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| Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186
Consumer & Commercial Division - Motor Vehicles
Wright J, President; S Westgarth, Deputy President; J Harris SC, Senior Member
Summary: Mr Lam, the appellant, appealed against a decision dismissing his application for a refund of the purchase price of a new car. That decision had been made on the basis that Tribunal did not have jurisdiction to grant a remedy to a consumer in the case of a failure by a supplier to comply with a consumer guarantee arising under the Australian Consumer Law (NSW) (the ACL NSW).
The Appeal Panel considered the relationship between the ACL (NSW) and the Consumer Claims Act 1998 (NSW), which was repealed and effectively re-enacted as Pt 6A of the Fair Trading Act 1987 (NSW). It concluded that “both the ACL NSW and the CC Act (or Pt 6A of the FT Act) can operate together sensibly, efficiently and justly” (at [170]) and that:
[171] The correct position is that the Tribunal has jurisdiction to grant relief, under the CC Act in respect of claims lodged prior to 1 October 2015 and under Pt 6A of the FT Act in respect of claims lodged after that date, where the claim is a “consumer claim” based on a failure to comply with a consumer guarantee arising under the ACL NSW, provided the jurisdictional requirements of the CC Act or the FT Act, as applicable, are otherwise satisfied.
The nature of an internal appeal was also considered. The Appeal Panel held that:
[20] An expression of doubts or opinions which does not involve making an order or doing any of the other things mentioned in s 5(1) does not amount to a “decision” and, accordingly, such an expression of doubts or opinions cannot be the subject of an internal appeal under s 80 of the NCAT Act. This is especially so where the doubts or opinions were expressly not relied upon in reaching the decision and making the orders actually made.
The Appeal Panel also considered the question of whether the Tribunal is bound by the doctrine of precedent (at [189]–[196]) and tentatively concluded:
[196] Since the question of whether the doctrine of precedent applies generally to decisions of the Tribunal was not argued on this appeal, we shall not express any final or definitive view upon the matter. Nonetheless, having regard to what the High Court has said in Babaniaris, to the fact that most final, first instance decisions of the Tribunal are made in the exercise of judicial power and can be appealed to the Appeal Panel as of right on a question of law and to the reasoning in the decisions referred by the Tribunal below at [107] of its reasons for decision, we think that it is appropriate for any Members sitting at first instance in the Tribunal to consider themselves bound, at least, to follow decisions of the Appeal Panel on questions of law. |
| Pettigrew v Gateway Fence Installations Pty Ltd [2016] NSWCATAP 181
Consumer & Commercial Division - Home Building
P Durack SC; G Meadows, Senior Member
Summary: The Appeal Panel considered whether a contract for a “small job” is unenforceable under s 10 of the Home Building Act. Section 7AAA(2) provides that a contract for a small job must be in writing. Section 10(1) relevantly provides:
“(1) A person who contracts to do any residential building work, or any specialist work, and who so contracts:
(c) in contravention of any other provision of this Act or the regulations that is prescribed for the purposes of this paragraph,
is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work…”
The Appeal Panel held that s 10(1)(c) does not render contracts for small jobs unenforceable for failure to comply with s 7AAA:
[29] In our opinion, s 10(1)(c) does not apply to render the contract unenforceable by Gateway.
[31] However, in our opinion, it is sufficiently clear that the reference to matters that may be prescribed applies to both provisions of the Act and to provisions of the regulations. In effect, s 10(1)(c) is to be read as if there was a comma after “Act” and another comma after “regulations”.
[32] Such a construction is harmonious with the text of the whole of s 10, which is not the case if s 10(1)(c) is construed as if references to matters to be prescribed applied only to the regulations. This is because there would no point to the separate identification of the matters in ss 10(1)(a)-(b) if the intention was that a contravention of all of the provisions of the Act resulted in contracts being unenforceable. If that had been the intention, one would have expected to see s 10 stating just that and also stating that a contravention of prescribed provisions of the regulations would result in contracts being unenforceable.
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| Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179
Administrative & Equal Opportunity Division - Administrative Review
P Durack SC; Dr J Lucy, Senior Members
Summary: In an appeal from the Tribunal’s decision to affirm the refusal to grant a tattooist licence under the Tattoo Parlours Act 2012 (NSW), the Appeal Panel considered the “fit and proper person” test in the context of tattooists:
[79] We accept that the standard of character required of a tattooist does not equate with the high standard of character required of, for example, a legal practitioner. However, in our opinion, qualities of good character are introduced as an aspect of the licence assessment by the legislature’s adoption of the commonly used expression “fit and proper person”. They bear upon the obvious consideration of public safety.
The Appeal Panel also noted the difficulties for individuals who have been refused a licence in exercising their appeal rights when the reasons, and the information upon which it relies, are kept confidential from them (at [85]). The Appeal Panel stated:
[86] … In other cases, it may be desirable, in the interests of justice, to give consideration to the appointment of an independent lawyer to assist with an assessment and presentation of any argument, as has been considered in analogous situations : see New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200 at [20] and the cases there cited at [21] – [31], including the case which addressed the role for such a lawyer in connection with the review by the predecessor of the Tribunal of criminal intelligence, namely Commissioner of Police v Sleiman & AVS Group of Companies [2011] NSWCA 21: see at [183]–[185] and [188]–[189] per Sackville AJA. |
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Keyword summaries for NCAT Appeal Panel decisions made during August 2016.
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Wise v Hottes Investments Australia Pty Ltd t/as Country Autos [2016] NSWCATAP 176
Consumer & Commercial Division - Motor Vehicle
Judgment of: P Callaghan SC (Principal Member); K Rosser (Senior Member) Catchwords: APPEAL and APPLICATION FOR LEAVE TO APPEAL – Civil and Administrative Tribunal – no significant new evidence not reasonably available at time of proceedings under appeal – dismissed APPLICATION for extension of time for lodgement of Notice of Appeal – delay significant and insufficiently explained - dismissed. |
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Club Mediterranee (Australia) Pty Ltd v Rutstein [2016] NSWCATAP 178
Consumer & Commercial Division - Social Housing
Judgment of: O Shub, Principal Member; T Simon, Senior Member Catchwords: Error of law, leave, against the weight of evidence, consumer claim, associated travel expenses, cause of action, assessment of damages, adequate reasons, breach of contract. |
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Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: P Durack SC; Dr J Lucy, Senior Members Catchwords: APPEAL – decision to refuse tattooist licence – adverse security determination by Commissioner of Police - administrative review of decision- application of fit and proper test under Tattoo Parlours Act – criminal history and issue of rehabilitation – significance of outlaw motorcycle gangs - relevance of confidential criminal intelligence – appeal rights hindered by exclusion from criminal intelligence. |
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JCB Enterprises Pty Ltd v Mangion [2016] NSWCATAP 180
Consumer & Commercial Division - Motor Vehicle
Judgment of: Hennessy LCM, Deputy President; A Boxall, Senior Member Catchwords: APPEAL – Australian Consumer Law - reasonable costs incurred by the consumer in having a vehicle repaired – adequacy of reasons - duty to refer to relevant evidence – duty to provide reasons for failing to refer to relevant evidence. |
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Pettigrew v Gateway Fence Installations Pty Ltd [2016] NSWCATAP 181
Consumer & Commercial Division - Home Building
Judgment of: P Durack SC; G Meadows, Senior MemberCatchwords: APPEAL – home building – manufacture and installation of fence – failure to comply with s 7AAA of the Home Building Act– consequence of such failure – contract not unenforceable - dispute as to oral terms – factual errors as to the nature of the case - incorrect evidence led to error about important fact – error of law in asking the wrong question - substantial miscarriage of justice. |
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Shayer v Byron Bay Retirement Village Pty Ltd [2016] NSWCATAP 184
Consumer & Commercial Division - Commercial
Judgment of: S Westgarth, Deputy President; R Deutsch, Senior Member Catchwords: Dismissal of Proceedings – clause 10(2)(a) Schedule 4 of the Civil and Administrative Tribunal Act 2013 NSW (the Act) – party conducting proceedings in such a way that unreasonably disadvantage another party – section 55 of the Act – clause 10(3) of Schedule 4 – indemnity costs. |
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Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186
Consumer & Commercial Division - Motor Vehicle
Judgment of: Wright J, President; S Westgarth, Deputy President; J Harris SC, Senior MemberCatchwords: CONSUMER LAW – whether the Tribunal has jurisdiction to grant relief in the case of failure to comply with consumer guarantees arising under Australian Consumer Law (NSW) – Tribunal may have jurisdiction under the Consumer Claims Act 1998 when claims “consumer claims” CONSUMER LAW – whether the Tribunal has jurisdiction to grant relief in the case of failure to comply with consumer guarantees arising under Australian Consumer Law (NSW) based on s 28 or Pt 3 of Sch 4 of Civil and Administrative Tribunal Act 2013 – no jurisdiction derived from these provisions APPEAL – whether reasoning can be the subject of an appeal – only “decisions” can be the subject of appeal under Civil and Administrative Tribunal Act 2013, s 80 PROCEDURE – Tribunal procedure – Precedent – whether doctrine of precedent applies in the Tribunal – Members at first instance should consider themselves bound by decisions of the Appeal Panel on questions of law. |
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Hogan v Trustees of Catholic Aged Care Sydney [2016] NSWCATAP 188
Consumer & Commercial Division - Retirement Village
Judgment of: P Durack SC; Dr J Lucy, Senior MembersCatchwords: APPEAL – Retirement villages – Financial management- Residents’ deemed consent to proposed annual budget - Whether deemed consent provision applies where operator proposes to amend approved annual budget – Deemed consent provision does not apply - Increase in administration expenses – Whether operator contractually obliged to have discussion with residents before relying upon deemed consent – No such contractual obligation – Failure to consider parts of claim – denial of procedural fairness. |
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Veroc Pty Ltd v Evaross Pty Ltd [2016] NSWCATAP 189
Consumer & Commercial Division - Home Building
Judgment of: A Coleman SC; S Thode, Senior MemberCatchwords: APPEAL: construction of Consent Orders; whether Tribunal functus officio; money order; whether Tribunal correctly construed Consent Orders. |
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ALZ v Lismore City Council [2016] NSWCATAP 190
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: P Durack SC; Dr J Renwick SC, Senior MembersCatchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – privacy – personal information – jurisdiction – Appeal Panel – inadequacy of reasons – decision set aside. |
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ZCA v NSW Trustee and Guardian [2016] NSWCATAP 192
Guardianship Division
Judgment of: Hennessy LCM, Deputy President; A Boxall; B McPhee, Senior MembersCatchwords: APPEAL – guardianship and financial management – mandatory considerations when deciding whether to make a guardianship order – views of the person -procedural fairness – reasonable opportunity to respond to evidence – no opportunity to cross examine witnesses – no offer of adjournment – admission of fresh and further evidence on appeal. |
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Stedman v Kennedy [2016] NSWCATAP 193
Consumer & Commercial Division - Tenancy
Judgment of: A Britton, Principal Member; T Simon, Senior MemberCatchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL — Residential Tenancies — Abandonment — Termination of tenancy by tenant — whether stated grounds for termination established PRACTICE AND PROCEDURE — exercise of discretion to grant leave to a party to be legally represented — whether “special circumstance” must be established WORDS AND PHRASES — meaning of “Australian legal practitioner”. |
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Commissioner of Police, NSW Police Force v Cseszko [2016] NSWCATAP 194
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: Hennessy LCM, Deputy President; Dr J Lucy, Senior MemberCatchwords: APPEAL – Administrative Law – administrative review of decision by Commissioner of Police to revoke firearms licence – decision set aside and substituted with decision to suspend the licence – whether Tribunal has power to suspend – power of Tribunal under s 63 of the Administrative Decisions Review Act 1997. |
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Curtis v Potter & Co Pty Ltd t/as The Africa Safari Co [2016] NSWCATAP 196
Consumer & Commercial Division - General
Judgment of: M Harrowell, Principal Member; R Titterton, Senior MemberCatchwords: CONSUMER CLAIM – Whether decision of Tribunal addressed the respondent’s alleged breaches of the Australian Consumer Law – Whether the Tribunal took into account a “once in a lifetime” experience – Whether the Tribunal’s decision reflected the financial loss suffered by the appellant and his wife for three wasted days - Whether the Tribunal took into account the unconscionable conduct of the respondent - Whether the Tribunal took into account the misleading and deceptive conduct of the respondent AUSTRALIAN CONSUMER LAW (NSW) – meaning and effect of the requirement of s 79U that the orders be fair and equitable to all parties to the claim – assessment of damages pursuant to s 236 of the Australian Consumer Law (NSW). |
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Foster v Byrnes [2016] NSWCATAP 197
Consumer & Commercial Division - Tenancy
Judgment of: A Britton, Principal Member; K Rosser, Senior MemberCatchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL — decision against the weight of evidence COSTS — special circumstances. |
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