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| NCAT Appeal Decisions Digest June 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 June 2016. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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Significant Decisions
Case summaries of significant NCAT Appeal Panel decisions handed down during June 2016
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| Commissioner of Police v Joseph [2016] NSWCATAP 124
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: K P O'Connor AM, ADCJ, Deputy President, Appeals; P Molony, Senior Member
Summary: The appellant, the Commissioner of Police, appealed against the Tribunal’s decision to set aside the Commissioner’s decision refusing the respondent’s application for a firearm dealer’s licence. The Appeal Panel described the role of a firearms dealer as follows:
[31] In our view, a dealer has a critical role in ensuring that the values and goals of the firearms legislation are upheld. Dealers must be able to be trusted by the community as persons of honesty and integrity, as persons who will be candid and open in their dealings with police, and conscientious in adhering to the strict requirements of the legislation in a wide variety of administrative matters, such as security of premises, safekeeping of weapons, bookkeeping, and transparency of transactions.
[32] The Commissioner depicted the dealer as sitting at the ‘apex’ of the regulatory system. The Commissioner emphasised the central role played by firearms dealers in the orderly and lawful circulation of firearms in the community. We agree with the thrust of the Commissioner’s submissions in this regard.
Further, the Appeal Panel contrasted the fitness requirement as it applies to an applicant for an individual firearms licence with the requirement as it applies to a dealer’s licence:
[51] An applicant for an individual firearms licence in respect of a particular class of weapon may be able to satisfy the Commissioner as to their fitness simply by demonstrating that he or she has no adverse criminal history, is a sporting shooter and, belongs, for example, to an approved gun club, and has the support of the gun club secretary, or has some other genuine reason for possessing the weapon supported by evidence of need with satisfactory corroboration. But a dealer’s licence requires more, as we see it.
[52] While the applicant may be a person of good character and ‘fit’ to be granted an individual licence, he or she may not be presently ‘fit’ to be granted a dealer’s licence, because of, for example, a lack of any, or any directly relevant, business experience - say as an employee of a licensed dealer or as an employee in some other regulated environment. |
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Shehabi v Attorney General (NSW) [2016] NSWCATAP 137
Guardianship Division - Clinical Trial
Judgment of: Wright J, President; Boland ADCJ, Deputy President; Dr J Hollis, Senior Member (Professional)
Summary: This decision provides guidance as to the proper construction of clinical trial provisions in Part 5 of Guardianship Act 1987 (NSW) and a summary of the principles of statutory construction.
After considering the purposes of the Guardianship Act, the general principles, the provisions in Pt 5 as a whole, the legislative history, the second reading speech for the relevant amending bill and previous decisions of the Tribunal, the Appeal Panel concluded (at [118]) that:
“the proper construction of the expression “clinical trial”, as used in Pt 5 of the Guardianship Act, refers to a trial of drugs or techniques that necessarily involves the carrying out of new medical (or dental) treatment that has not yet gained the support of a substantial number of medical practitioners (or dentists) specialising in the area of practice concerned.”
The decision provides a summary of the principles of statutory construction (at [35]):
(1) The process of statutory construction begins with the statutory text and, in a sense, also ends with the statutory text, considered in its context: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39];
(2) The context of the statutory text includes:
(a) extrinsic material to which reference may be had under s 34 of the Interpretation Act 1987 (NSW) but only so far as it assists in ascertaining the meaning of the statutory text. Such material cannot displace the meaning of the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47]; Bignill v Director of Public Prosecutions [2016] NSWCA 13 at [25];
(b) the legislative history: Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [22]; Bignill v Director of Public Prosecutions [2016] NSWCA 13 at [25]; and
(c) the objectively determined purpose and policy of the provision and the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47]; Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [23]; Bignill v Director of Public Prosecutions [2016] NSWCA 13 at [25];
(3) Ordinarily the legal meaning will correspond with the grammatical meaning of a provision but not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the provision or the principles of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78];
(4) The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute and on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] and [70];
(5) The context, the general purpose and policy of a provision and its consistency and fairness may be surer guides to its meaning than the logic with which it is constructed: Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; 92 CLR 390 at 397. |
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Cominos v Di Rico (No 2) [2016] NSWCATAP 138
Consumer & Commercial Division - Home Building
Judgment of: Wright J, President; R Titterton, Senior Member Summary: This decision provides guidance on the formulation of costs orders and the applicable costs provisions for proceedings commenced before 1 July 2015.
The Appeal Panel noted (at [28]) that cl 59 of the Legal Profession Uniform Law Application Regulation 2015 provides that the old costs provisions apply to proceedings commenced before 1 July 2015:
[28] In the present case, it should also be noted that cl 59 of the Legal Profession Uniform Law Application Regulation 2015 states:
59 Ordered costs—transitional provision
The provisions of the Legal Profession Act 2004 and the Legal Profession Regulation 2005 relating to ordered costs continue to apply to a matter if the proceedings to which the costs relate commenced before 1 July 2015.
[29] Thus, by operation of cl 59 of the Legal Profession Uniform Law Application Regulation, the provisions of the Legal Profession Act 2004 (NSW) (the LP Act) and the Legal Profession Regulation 2005 relating to ordered costs continue to apply to the costs awarded in these proceedings, since the Local Court proceedings, and the proceedings as constituted in the Tribunal after their transfer from the Local Court, were commenced before 1 July 2015. It appears to the Appeal Panel that this requires s 60(4)(b) of the NCAT Act to be read as continuing to refer to Pt 3.2 of the LP Act, as it did prior to 1 July 2015, rather than referring to the “legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) [(the Application Act)]” as s 60(4)(b) did after 1 July 2015.
In regards to the formulation of costs orders, the Appeal Panel advised (at [40]–[41]):
[40] In order to avoid difficulties with the form of costs orders, in the Appeal Panel’s view, it is preferable, if the basis of assessment is to be stated, to refer to the basis for assessment by referring to the applicable legislation specifically or by using the terms found in the applicable legislation. It is not necessary, however, if it is intended that costs be assessed not on an indemnity basis or some other special basis, for the order to refer to the basis of assessment because the costs will be liable to be assessed on the basis set out in s 364(1) and (2) of the LP Act or s 172(1) and (2) of the Uniform Law, as applicable, unless another basis is stated in the order.
[41] Further, the Appeal Panel notes here that for proceedings commenced after 1 July 2015, the use of the expression “party/party basis” in costs orders in respect of such proceedings is not helpful, since the expression “party/party basis” or “party/party costs” does not appear in Div 3 of Pt 7 of the Application Act or in the relevant provisions of the Uniform Law. |
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Abdel-Messih v Lobo [2016] NSWCATAP 143
Consumer & Commercial Division - Tenancy
Judgment of: D Cowdroy ADCJ, Principal Member; R Titterton, Senior Member
Summary: This decision provides guidance on how to treat submissions received after the conclusion of the hearing and the reasons for decision reserved, when no leave has been granted to the parties to file further submissions. The Appeal Panel stated (at [69]–[70]):
[69] … Accordingly, the Appeal Panel has paid no regard to those materials in its reasons for decision. As Mason J noted in Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 at [29]:
The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.
[70] … To similar effect, see Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 per McHugh J at [29] (with whom Gleeson CJ agreed):
Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing - ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing. |
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Keyword summaries for all NCAT Appeal Panel decisions made during June 2016.
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Peace v McIntosh Electrical Pty Ltd [2016] NSWCATAP 117
Consumer & Commercial Division - Home Building
Judgment of: O Shub, Principal Member; T Simon, Senior Member Catchwords: Appeal, Civil & Administrative Tribunal (NSW) – Consumer and Commercial Division – internal appeal – error of law – Standing – Home building jurisdiction – consumer claim –specialist work |
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Temple v AMR Motors Pty Ltd [2016] NSWCATAP 121
Consumer & Commercial Division - Motor Vehicle
Judgment of: PR Callaghan SC, Principal Member; DAC Robertson, Senior Member Catchwords: APPEAL and APPLICATION FOR LEAVE TO APPEAL – Civil and Administrative Tribunal – unfairness in hearing – failure of decision to deal with material issues – unexplained preference for evidence |
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Garabedian v Grays (NSW) Pty Ltd [2016] NSWCATAP 123
Consumer & Commercial Division - General
Judgment of: A Coleman SC; S Thode, Senior Members Catchwords: APPEAL — Civil and Administrative Tribunal (NSW) —Consumer and Commercial Division — no question of principle |
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Commissioner of Police v Joseph [2016] NSWCATAP 124
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: K P O'Connor AM, ADCJ, Deputy President, Appeals; P Molony, Senior Member Catchwords: OCCUPATIONAL LICENSING – firearms dealers licence – refused – application for administrative review – merits hearing by Appeal Panel – purpose of licence – considerations relevant to fitness and the public interest – refusal affirmed. Firearms Act 1996, s 11(3), s 11(7) |
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O’Brien v Twyman [2016] NSWCATAP 125
Consumer & Commercial Division - Tenancy
Judgment of: S Higgins, Principal Member; R Perrignon, Senior MemberCatchwords: ADMINISTRATIVE LAW – Application for an extension of time within which to appeal – extension of time granted. Application for leave to appeal and appeal of decision of the Tribunal in the Consumer and Commercial Division concerning a claim for damages/repairs for breach of the residential tenancy agreement – grounds of appeal included denial of procedural fairness and inadequacy of reasons for decision – appeal allowed in part. Leave to appeal |
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Docherty & Anor v Ballouk [2016] NSWCATAP 126
Consumer & Commercial Division - Tenancy
Judgment of: A Coleman SC; R Perrignon, Senior Members Catchwords: APPEAL: application to set aside consent orders; no evidence or basis to do so; LEAVE TO APPEAL: no issue of principle |
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Howe v NSW Coastal Homes Pty Ltd [2016] NSWCATAP 127
Consumer & Commercial Division - Home Building
Judgment of: S Westgarth, Deputy President; M Anderson, Senior Member Catchwords: Administrative Law – appeal from the Consumer and Commercial Division of the Tribunal – home building dispute – appeal by builder on errors of law – no errors found- leave to appeal granted- appeal by builder dismissed- leave to appeal sought by homeowners – leave to appeal granted to homeowners and additional order made |
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Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128
Consumer & Commercial Division - Social Housing
Judgment of: A Coleman SC; T Simon, Senior MembersCatchwords: Error of law, leave, Residential Tenancy, s91, meaning of serious, meaning of intentional, against the weight of evidence, exercise of discretion |
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Tabs Boats Pty Ltd v Jetty Boating Coffs Harbour Pty Ltd [2016] NSWCATAP 130
Consumer & Commercial Division - General
Judgment of: P Durack SC; D Goldstein, Senior Members Catchwords: APPEAL – sale by manufacturer of boat – whether Tribunal’s remedial powers constrained by the general law - whether the Tribunal could order refund of the purchase price and return of the boat – correctness of finding of implied term as to satisfactory quality – new point on appeal that wrong party sued |
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Annette Shailer v Camille Serisier [2016] NSWCATAP 131
Consumer & Commercial Division - Tenancy
Judgment of: Marks ADCJ, Principal Member; J Currie, Senior Member Catchwords: RESIDENTIAL TENANCY - time limit - claim for reduction of rent, compensation and loss of enjoyment - time extended in part - appeal upheld |
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Tuck v White [2016] NSWCATAP 132
Consumer & Commercial Division - Home Building
Judgment of: M Harrowell, Principal Member; T Simon, Senior Member Catchwords: Contract – need for intention to create legal relationship, inferred contract Damages – obligation to make best assessment |
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Pearson v Clark [2016] NSWCATAP 134
Consumer & Commercial Division - Tenancy
Judgment of: M Harrowell, Principal Member; T Simon, Senior Member Catchwords: Dismissal of subsequent proceedings – Res judicata, issue estoppel, Anshun estoppel Exercise of powers of Tribunal at first instance |
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Neeves v Gaffey [2016] NSWCATAP 135
Consumer & Commercial Division - Tenancy
Judgment of: M Harrowell; S Higgins, Principal Members Catchwords: Leave to appeal out of time- exercise of discretion Residential Tenancies Act- power to order repayment of water usage charges, obligation on landlord to provide water usage bills. Compensation for failure of facilities provided under residential tenancy agreement |
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Wesfarmers General Insurance Ltd v Jameson [2016] NSWCATAP 136
Consumer & Commercial Division - Home Building
Judgment of: Cowdroy ADCJ, Principal Member; R Titterton, Senior Member Catchwords: HOME BUILDING ACT 1989 – application for leave to appeal – original application made out of time – 45 days required by Home Building Act – Regulation 65 of the Home Building Regulation 2004 – whether Tribunal had jurisdiction to hear matter – point not taken before Tribunal below HOME BUILDING ACT 1989 – home warranty insurance – meaning of “structural defect” – meaning of “structural element” Reasons for decision – adequacy of reasons |
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Shehabi v Attorney General (NSW) [2016] NSWCATAP 137
Guardianship Division - Clinical Trial
Judgment of: Wright J, President; Boland ADCJ, Deputy President; Dr J Hollis, Senior Member (Professional) Catchwords: CLINICAL TRIAL – whether study’s use of a drug outside its approved product information is determinative of whether study is a “clinical trial” under the Guardianship Act 1987 (NSW) – use of drug beyond TGA Product Information not determinative CLINICAL TRIAL – whether notification of trial under TGA Clinical Trial Notification (CTN) Scheme is determinative of whether it is a “clinical trial” under the Guardianship Act 1987 (NSW) – notification under TGA CTN Scheme is not determinative WORDS AND PHRASES – “clinical trial” – a trial of drugs or techniques that necessarily involves the carrying out of new medical or dental treatment that has not yet gained the support of a substantial number of medical practitioners or dentists specialising in the area of practice concerned – Guardianship Act 1987 (NSW), s 33(1) |
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Cominos v Di Rico (No 2) [2016] NSWCATAP 138
Consumer & Commercial Division - Home Building
Judgment of: Wright J, President; R Titterton, Senior Member Catchwords: COSTS – where transitional provision applies such that the Legal Profession Act 2004 and the Legal Profession Regulation 2005 relating to ordered costs in proceedings commenced prior to 1 July 2015 continue to apply COSTS – form of order – where order is for “costs incidental to proceedings” – unclear whether wording of order is clerical slip or intentional – failure to give reasons for making the order in that form – appeal allowed |
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Hinterland Outdoors Pty Ltd v Bryan Walters and Joan Walters [2016] NSWCATAP 140
Consumer & Commercial Division - Motor Vehicle
Judgment of: A Coleman SC; D Robertson, Senior Members Catchwords: Consumer claims – sale of caravan – caravan advertised with particular tare mass, maximum touring weight and maximum tow ball weight – maximum towing weight exceeded when caravan loaded – tow ball weight exceeded when caravan loaded in configuration suggested by layout of caravan - whether caravan fit for purpose – whether misleading and deceptive conduct |
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Kelly v Plunkett [2016] NSWCATAP 141
Consumer & Commercial Division - General
Judgment of: M Harrowell; D Robinson, Principal MembersCatchwords: Inadvertent miscarriage of justice - failure to make findings and give adequate reasons - causation |
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Abdel-Messih v Lobo [2016] NSWCATAP 143
Consumer & Commercial Division - Tenancy
Judgment of: D Cowdroy ACDJ, Principal Member; R Titterton, Senior Member Catchwords: APPEAL from a decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal – no question of principle |
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Yang v Oppidan Homes Pty Ltd [2016] NSWCATAP 146
Consumer & Commercial Division - Home Building
Judgment of: S Westgarth, Deputy President; R Titterton, Senior Member Catchwords: HOME BUILDING dispute – entitlement to liquidated damages – where error by Tribunal below SLIP RULE – meaning and effect COSTS – appellant largely unsuccessful – ordered to pay 80% of the respondent’s costs |
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Turnbull v Mission Australia Housing [2016] NSWCATAP 147
Consumer & Commercial Division - Social Housing
Judgment of: A Britton, Principal Member; K Rosser, Senior Member Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL — scope of power under s 44 of Residential Tenancies Act 2010 (NSW) — whether National Rental Affordability Scheme guidelines must be taken into account in exercising power under s 44 of Residential Tenancies Act 2010 — nature of the requirement to give adequate reasons — interrelationship between power to award compensation under the Residential Tenancies Act 2010 (NSW) and s 16 of the Civil Liability Act 2002 (NSW) |
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Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: N Hennessy LCM, Deputy President; D Patten, Principal Member Catchwords: ADMINISTRATIVE LAW – licensing –prohibited weapons - appeal from decision to grant permit for sheep grazier to use silencer when culling feral animals – whether applicant demonstrated that silencer necessary in the conduct of his business as a sheep grazier – meaning of word “necessary” – no evidence rule – meaning of probative evidence – procedural fairness |
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Croese v Maidment [2016] NSWCATAP 149
Consumer & Commercial Division - Commercial
Judgment of: M Dicker SC; D Fairlie, Senior Members Catchwords: APPEAL – Dividing Fences Act 1991 (NSW) – Whether dividing fence erected substantially complied with the terms of the agreement between the parties – New evidence – Leave to appeal |
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