NCAT Appeal Panel Decisions Digest Issue 1 of 2024 |
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 January 2024: |
Commissioner of Police, NSW Police Force v Ireland [2024] NSWCATAP 1: An Appeal Panel allowed an appeal by the NSW Commissioner of Police where a decision was made in reliance on medical evidence that could not be tested via cross-examination. The Appeal Panel held that whilst there is no general right to cross-examination, the weight afforded to such evidence without affording the NSW Commissioner of Police the opportunity to cross-examine these witnesses, resulted in a practical injustice.
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Advertising Printing Australia Pty Ltd v Silverwater Plumbing Pty Ltd [2024] NSWCATAP 8: An Appeal Panel allowed an appeal from a decision of the Tribunal which made a decision in default of an appearance by a party, rather than hearing the proceedings in the absence of the party and deciding the claim on its merits. The Tribunal failed to consider evidence which could have constituted a complete defence by the non-appearing party. In addition, the Appeal Panel held that the Tribunal at first instance denied the appellant procedural fairness in amending the name of the appellant in the proceedings at first instance and then immediately hearing the application, without giving notice to the correctly named party.
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Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Can denying a party the opportunity to cross-examine another party’s witness constitute a denial of procedural fairness?
Commissioner of Police, NSW Police Force v Ireland [2024] NSWCATAP 1 Administrative and Equal Opportunity Division S Westgarth, Deputy President; Dr R Dubler SC, Senior Member
In sum: There is no requirement for the Tribunal to permit cross-examination in all circumstances, but dispensing with the opportunity for cross-examination must still be subject to the rules of procedural fairness. In some circumstances, a failure to allow a party the opportunity to cross-examine will constitute a denial of procedural fairness giving rise to a question of law, or to an appealable error of law such that leave to appeal should be granted. Such circumstances can include where there exist significant factual differences between the parties’ witnesses.
Facts: Emergency services were called to the respondent’s (Mr Ireland’s) property regarding concerns for his mental health. Upon arrival, the police suspended Mr Ireland’s firearms licence but were satisfied there was no threat of self-harm. Following this incident, Mr Ireland sought to renew his firearms licence, but the appellant (Commissioner of Police) refused his application. Mr Ireland appealed this decision to the Tribunal and in his evidence relied upon medical reports from two doctors outlining that he did not appear to have a mental health disorder. Notably, these doctors were not aware of the circumstances of the emergency call as well as other key documents. The two doctors were unable to attend the hearing, but the evidence was nonetheless admitted with the caveat that it was understood it could not be tested by the Commissioner of Police. Relying on this evidence, the Tribunal ultimately concluded that Mr Ireland’s adjustment disorder was temporary and did not necessarily constitute a mental illness within the meaning of s 4 of the Mental Health Act 2007 (NSW). The Commissioner of Police appealed the decision asserting she was denied procedural fairness where undue weight was attributed to the medical evidence of the two doctors when she could not cross-examine the two doctors on their reports.
Held (allowing the appeal): (i) The Appeal Panel held that a practical injustice had arisen where the Tribunal at first instance placed weight on the doctors’ evidence without affording the Commissioner the opportunity to cross-examine (at [4], [50]).
(ii) Whilst there is generally no right to cross-examination, dispensing with the opportunity for cross-examination must still be subject to the rules of procedural fairness (see, Morgan v Shardlan Pty Ltd as Trustee for the Stumar Family Trust t/as Carpet One and Blinds Wagga Wagga [2018] NSWCATAP 143 at [21]; Gallo v Duflou [2014] NSWCATAP 115 at [21] citing Wakim v Mathiew Pty Ltd [2002] NSWSC 405 at [30]) (at [32]-[33]). In assessing whether denying the opportunity to cross-examine constitutes a breach of the rules of natural justice, the Tribunal must have regard to the whole of the circumstances, the key question being whether each party has been given a fair opportunity to present their case or otherwise suffered any real detriment (see, Wakim v Mathiew Pty Ltd [2002] NSWSC 405 at [30]; National Companies & Securities Commission v News Corporation Limited (1984) 156 CLR 296 at [15]; Simjanovska v Dogan [2023] NSWCATAP 69 at [98]) (at [35]).
(iii) The Appeal Panel held that where the two doctors were not aware of the emergency call or the contents of other key documents, this could have constituted a legitimate line of enquiry in cross-examination. Given that the opinions of the two doctors were likely informed by a selective set of facts and evidence put to them by Mr Ireland, the Tribunal’s reliance on such evidence without giving the Commissioner the opportunity to fully test this evidence, denied the Commissioner a reasonable opportunity to present her case. Similarly, in Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99, the Appeal Panel found that the Tribunal erred in not allowing cross-examination because there existed significant factual differences between the parties’ witnesses (at [34]). A failure to allow a party the opportunity to cross-examine another party's witness, in these circumstances, constitutes a denial of procedural fairness. |
2. Does the Tribunal have an obligation to consider defences when hearing an application ex parte?
Advertising Printing Australia Pty Ltd v Silverwater Plumbing Pty Ltd [2024] NSWCATAP 8 Consumer and Commercial Division - General S Thode, Principal Member; P H Molony, Senior Member
In sum: The Tribunal has an obligation to “ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings” (see, s 38(5)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act)). Where proceedings are heard ex parte, the Tribunal must nonetheless hear the case meaning the applicant must still prove its case, and the Tribunal must decide the claim before it on its merits.
Facts: The respondent (Silverwater Plumbing) entered into a contract with the appellant (APA) for the delivery of fridge magnets advertising Silverwater Plumbing to consumer letter boxes. Silverwater Plumbing alleged that these deliveries were not made or were made incorrectly. The Tribunal ordered that APA pay Silverwater Plumbing $20,594 in damages for breach of contract. APA did not attend the Tribunal hearing and the Tribunal held that Silverwater Plumbing was entitled to have the application determined in default of an appearance by APA. This was at issue on appeal.
In addition, the Tribunal found that in the absence of any evidence to the contrary, APA had no defence to the claim of breach of contract. This was despite Silverwater Plumbing placing a rescission agreement in evidence which would have provided APA with a complete defence to the claim. Silverwater Plumbing alleged that the agreement was made under duress. The Appeal Panel considered the extent of the Tribunal’s obligation to consider defences when hearing an application ex parte.
Another critical issue involved the initiating application naming APA’s sole director, Mr Bajaj as respondent. At the initial hearing, the Tribunal amended the respondent’s name from Mr Bajaj to APA before immediately proceeding to determine the proceedings. At issue before the Appeal Panel was whether amending the name and then immediately hearing the application, without giving notice of the amendment to APA, denied APA procedural fairness.
Held (allowing the appeal): (i) The Appeal Panel held that the Tribunal at first instance wrongly found that the “applicant is entitled to have the application determined in default of an appearance by the respondent” (at [19]). Rule 35 of the Civil and Administrative Tribunal Rules 2014 (NSW) provides that the Tribunal, in defined circumstances, “hear the proceedings” in the absence of a party, though this still requires a hearing where the applicant must prove its case (at [36]).
(ii) The Appeal Panel held that the obligation that arises under s 38(6)(a) of the NCAT Act includes an obligation imposed on the Tribunal to have regard to material which has been disclosed to it and which is relevant to the facts in issue, at least where that material is of some significance (at [53]). This obligation exists both when the parties are present or if heard ex parte. The Tribunal could not simply treat the allegation made by Silverwater Plumbing as to duress as true because of APA’s non-appearance. The Tribunal was required to hear and decide the claim on its merits.
(iii) The Appeal Panel also held that it was not open to the Tribunal to immediately proceed with the hearing after making an order amending the name of the respondent. The Appeal Panel noted that despite Mr Bajaj being the sole director of APA and therefore its controlling mind, there had been no correspondence from Mr Bajaj himself indicating he was aware of the proceedings, only correspondence from APA staff. In addition, the Appeal Panel held that the correct course of action would have been giving APA notice that it was considering joining it as a party to the proceedings rather than proceeding immediately after amending the name. Procedural fairness requires that a potential party then be given the opportunity to be heard as to whether it should be named as a party before it is joined in proceedings (pursuant to s 44 of the NCAT Act and Keevers v Sarraf Property Group Pty Ltd [2022] NSWSC 1017 at [85]). |
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Commissioner of Police, NSW Police Force v Ireland [2024] NSWCATAP 1 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; Dr R Dubler SC, Senior Member Catchwords: ADMINISTRATIVE LAW – hearing rule – right to cross-examine witnesses – failure to allow the Appellant to cross-examine witnesses – reliance on the evidence of those witnesses – breach of procedural fairness – practical injustice resulting from breach of obligation to provide procedural fairness. |
YGZ v Public Guardian [2024] NSWCATAP 2 Guardianship Division Decision of: J Moir, Senior Member; L Organ, Senior Member; J Newman, General Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – appeal from Guardianship Division- asserted error on a question of law – failure to take into account mandatory consideration - views of person with a disability- Guardianship Act 1987 s14(2)(a)(i). No error on a question of law established – appeal dismissed. Leave to appeal not sought. PROCEDURE – Civil and Administrative Tribunal (NSW) Appeal Panel – appeal from Guardianship Division – obligation to assist legally unrepresented appellant in formulation of their case and grounds. |
O’Riordan v Brown [2024] NSWCATAP 3 Consumer and Commercial Division Division - General Decision of: L. Wilson, Senior Member; D. Goldstein, Senior Member Catchwords: APPEAL – Exclusive selling agency agreement – No sale – Liability for disbursements – Section 55A of the Property and Stock Agents Act 2002 (NSW) - No compensation for property owner – Failure to allow procedural fairness. |
TCM Construction Group Pty Ltd v Neich [2024] NSWCATAP 4 Consumer and Commercial Division - Home Building Decision of: S Westgarth, Deputy President; G Ellis SC, Senior Member Catchwords: APPEAL- appeal from orders requiring the appellant to remedy defective work-whether a question of law arises- whether there is a ground for leave to appeal to be granted-conflicting evidence of expert witnesses. |
YFA v Secretary, NSW Ministry of Health [2024] NSWCATAP 5 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. |
Sedghi v Liew [2024] NSWCATAP 6 Consumer and Commercial Division - Home Building Decision of: R C Titterton OAM, Senior Member; D Goldstein, Senior Member Catchwords: APPEALS – Failure to provide transcript or sound recording as ordered – Weight to be given to expert evidence - Communication with the Appeal Panel after the appeal was concluded – No question of principle. |
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Advertising Printing Australia Pty Ltd v Silverwater Plumbing Pty Ltd [2024] NSWCATAP 8 Consumer and Commercial Division Division - General Decision of: S Thode, Principal Member; P H Molony, Senior Member Catchwords: APPEALS – leave to appeal - new evidence – leave to appeal under cl 12(1)(c) Sch 4 of the Civil and Administrative Tribunal Act 2013 refused – failure to consider relevant consideration - damages – inadequacy of reasons – no explanation of how damages assessed. PROCEDURE – ex parte hearing under rule 35 of the Civil and Administrative Tribunal Rules 2014 - failure to take into consideration undefended hearing evidence which could constitute a complete defence to claim – Tribunal’s obligation to satisfy itself that claim made out – failure to consider a relevant consideration. |
Rehman v F & F Smart Homes Pty Ltd [2024] NSWCATAP 9 Consumer and Commercial Division - Home Building Decision of: D Charles, Senior Member; D Fairlie, Senior Member Catchwords: COSTS – appeal – errors of law in exercise of the Tribunal’s discretion under r 38 – setting aside of no order as to costs and substituting a costs’ order. |
Hadchiti v Schepis [2024] NSWCATAP 11 Consumer and Commercial Division Division - General Decision of: G Blake AM SC, Senior Member; R C Titterton OAM, Senior Member Catchwords: APPEALS – Australian Consumer Law – no question of principle. |
The Owners-Strata Plan No 53865 v JPG Investments Pty Ltd [2024] NSWCATAP 12 Consumer and Commercial Division - Strata Scheme Decision of: G Sarginson, Senior Member; K Ransome, Senior Member Catchwords: LAND LAW---Strata title---Consent of owners corporation to the lodging of a development application to works affecting common property---s 232(6) Strata Schemes Management Act 2015---Mandatory considerations---Relevant considerations---Applicable principles. |
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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. |
