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| | NCAT Appeal Panel Decisions Digest Issue 3 of 2020
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| | 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 April 2020: - Smith v Li [2020] NSWCATAP 59 – where the Appeal Panel allowed an appeal in part from the Consumer and Commercial Division on the basis that a consent order terminating a residential tenancy agreement was invalid in circumstances where the tenancy had already been terminated.
- D’Annunzio v North Sydney Council [2020] NSWCATAP 66 – where the Appeal Panel dismissed an appeal from the Consumer and Commercial Division holding, amongst other things, that the ordinary meaning of a word in legislation (in this case, “road”) is a question of fact, not law.
- Ros v Commissioner of Police [2020] NSWCATAP 70 – where Appeal Panel dismissed an appeal from the Administrative and Equal Opportunity Division and, in doing so, set out the principles relevant to receiving new evidence on appeal in circumstances where the appeal is not being dealt with by way of a “new hearing” under s 80(3) of the NCAT Act.
- DTN v Commissioner of Police [2020] NSWCATAP 73 – where the Appeal Panel allowed an appeal in part from the Administrative and Equal Opportunity Division and, in doing so, set out a number of provisions of the NCAT Act, Administrative Decisions Review Act 1997, Privacy and Personal Information Protection Act 1998 and Health Records and Information Privacy Act 2002 which could give the Tribunal power to order the respondent to “take whatever steps necessary” to “locate” and “permanently remove” any (inaccurate) references in their documentation and electronic systems to the appellant having a “psychotic illness”.
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| Smith v Li [2020] NSWCATAP 59
Consumer and Commercial Division - Tenancy
Armstrong J, President; P Durack SC, Senior Member
In sum: The Appeal Panel dismissed an appeal from one set of consent orders made in the Consumer and Commercial Division, but allowed an appeal from a subsequent set of orders in the same matter, on the basis that the order to terminate the residential tenancy was invalid where the tenancy was no longer on foot.
Facts: The tenants appealed from two sets of consent orders made under the Residential Tenancies Act 2010 (NSW) (RT Act) on 10 December 2019 and 22 January 2020. The first set of consent orders terminated their residential tenancy agreement, gave possession to the respondent landlords, and stipulated that the tenants pay the landlords a daily occupancy fee until vacant possession was given. The second set purported to terminate the same residential tenancy agreement, with an order for possession suspended until 31 January 2020, and ordered payment of “rent” arrears ([1]-[2]).
The appeals in respect of both decisions were lodged out of time, requiring an extension ([4]). At the beginning of the hearing, the tenants also sought an adjournment on the basis that they did not have employment, were located in temporary housing, and were not ready to proceed to hearing ([22]).
Held (refusing the adjournment, refusing an extension of time and allowing the appeal in respect of the first set of consent orders, and granting an extension of time and allowing the appeal in respect of the second set):
Application for adjournment
(i) The tenants did not provide an adequate explanation for why they were not ready to proceed to hearing, or of what benefit they would derive from an adjournment. The tenants had adequate time to prepare for the hearing, and would have a reasonable opportunity to present their case. Granting an adjournment would also have caused prejudice to the respondents, who had a genuine interest in the appeal being resolved as quickly as possible. Overall, the Appeal Panel did not consider that the interests of justice would be served by granting an adjournment ([28]-[31]).
Appeal against first set of consent orders
(ii) In relation to the first set of consent orders, the Appeal Panel considered that the tenants’ grounds of appeal did not have any reasonable prospects of success ([45], [62]).
Argument that Tribunal lacked jurisdiction because the wrong section of legislation was referred to in the initiating application
(iii) The landlord’s application to the Tribunal did not ask for a termination order and, in seeking a possession order, mistakenly referred to s 95 rather than s 85 of the RT Act. However, this was plainly a mistake, and the circumstances (including that a “no grounds” termination notice had already been issued to the tenants) made clear that the Tribunal proceedings were brought in order to obtain a termination of the tenancy and an order for possession pursuant to s 85 ([46]).
(iv) There was nothing to suggest that the Member did not understand the power she was exercising, or that she did not have the power to make the relevant consent orders under s 59 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and relevant provisions of the RT Act ([48]).
(v) Given that the Tribunal is obliged to act with as little formality as possible, and given the high volume of matters in this division, applicants should not be required to correct minor errors in their initiating applications, nor is the Tribunal required to do so of its own motion ([49]-[50]).
(vi) Even if the Tribunal had made a mistake as to the source of its power to make the consent orders, a mistake of this kind does not, of itself, vitiate the exercise of a power, provided a source exists and the power is exercised in conformity with the statute ([51]).
Argument that the tenants were denied procedural fairness
(vii) The tenants also argued that they had been denied procedural fairness because they had raised a defence of retaliatory eviction during a conciliation, which was not considered in the making of the consent orders at the subsequent Tribunal hearing ([53], [56]).
(viii) It is generally undesirable for the Tribunal to examine what transpired during the course of a conciliation ([59]).
(ix) Nothing occurred at the hearing to alert the Member to the issue of retaliatory eviction, nor was there any indication that the tenants wished to press the issue. The tenants had an adequate opportunity to raise this “defence” before the consent orders were made, but did not do so ([55], [59]-[60]).
(x) In all the circumstances, although the Appeal Panel did not consider that this ground of appeal was necessarily “doomed to fail”, it did not have reasonable prospects of success ([62]).
Other considerations
(xi) The Appeal Panel considered that the landlords would be prejudiced if the extension of time in respect of this appeal were granted, that there had been a significant delay since the first consent orders were made, and that this had not been adequately explained. Accordingly, the extension of time was refused ([38], [63]-[64]).
Appeal against second set of consent orders
(xii) The length of delay in respect of the second set of consent orders was only one day. Given this, it was not clear that the landlord would be prejudiced if the extension of time were granted ([65], [73]).
(xiii) The tenants also had strong prospects of success in appealing against the second set of consent orders ([72]).
(xiv) The Appeal Panel accepted the tenants’ argument that the Tribunal lacked jurisdiction to terminate the tenancy on 22 January 2020, because it had already been terminated on 10 December 2019. A residential tenancy agreement cannot be terminated if it is no longer on foot ([67], [71]).
(xv) The reference to “rent” arrears in the consent orders was also mistaken, as the landlords were at that point entitled to payment of a daily occupancy fee, not rent ([69]).
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| D’Annunzio v North Sydney Council [2020] NSWCATAP 66
Consumer and Commercial Division - Commercial
L Pearson, Principal Member; Dr J Lucy, Senior Member
In sum: The Appeal Panel dismissed an appeal from a decision in the Consumer and Commercial Division, in which the Tribunal found the respondent did not engage in misleading or deceptive conduct or otherwise breach the disclosure provisions in the Retail Leases Act 1994 (NSW) (RL Act). In doing so, the Appeal Panel upheld the Tribunal’s finding that a statement that the respondent was not aware of any alteration works to “surrounding roads” did not include works affecting footpaths or walkways.
Facts: In June 2016, the appellant entered a contract to purchase a cafeteria business conducted on retail shop premises owned by the respondent, North Sydney Council. The Council granted the appellant a lease of those premises for three years commencing in September 2016 ([8], [12]).
In August 2016, the Council provided the appellant a lessee disclosure statement pursuant to s 11(1)(a) of the RL Act. This statement advised that:
- There were no “alteration works, planned or known to the lessor at th[at] point in time, to the premises or building/centre, including surrounding roads, during the term or any further term or terms” ([10]); and
- The lessor had not knowingly withheld information likely to have an impact on the lessee’s proposed business ([11]).
However, in February 2016, the Council had approved a development application on a neighbouring building which shared a “walkway” with the leased premises. Work commenced on the neighbouring building in late 2016, which resulted in scaffolding being erected in the walkway and access being restricted. The appellant’s business was adversely affected, and the Council terminated the lease for his failure to pay rent ([6]-[7], [13]-[14]).
The appellant applied to the Tribunal, claiming that the Council had breached ss 10 and 62D of the RL Act by failing to disclose the existence of the development application in the lessor’s disclosure statement ([15]-[16]).
The Tribunal dismissed the appellant’s claim, and he appealed ([22], [24]).
Held (refusing leave to appeal and dismissing the appeal):
Whether the Tribunal erred in finding that the walkway was not a “road” – NO
(i) The question of whether the Tribunal had correctly determined the ordinary meaning of the word “road”, and whether it was correct to find that the walkway was not a “road”, did not raise a question of law. The ordinary meaning of a word in legislation is a question of fact ([29]-[30]).
(ii) The Tribunal’s finding that the ordinary meaning of the word “road” does not include a pedestrian walkway was open to it, and was correct, as it is consistent with the definition in the Macquarie Dictionary ([33]).
(iii) There was also no error in the Tribunal’s factual finding that this walkway in particular was not a road. There was no evidence that any vehicles used the walkway, or that it was a gazetted or designated road, and the photograph of a “road closed” sign did not support the appellant’s argument that the walkway was, in fact, a road ([35]).
(iv) The Appeal Panel was not persuaded that the appellant had established any basis for the grant of leave on this ground. Accordingly, leave was refused ([36]).
Whether the Tribunal erred in finding that the Council did not have a duty to disclose building works – NO
(v) The appellant’s argument that the Tribunal erred in finding that the Council did not have a duty to disclose the building works also required leave, because it did not raise an error of law ([39]).
(vi) The appellant submitted that the Tribunal should have given more weight to the concession of the Council’s witness that, had he known about the development application and that it would impact the appellant’s business, he would have included it in the disclosure statement. However, this evidence did not assist the appellant because the Tribunal found that the development application did not indicate that any work would take place in the walkway ([40]-[42]).
(vii) The Tribunal was not required to consider whether there was a “reasonable expectation of disclosure”, as opposed to a “duty to disclose” (as suggested in Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357), because the development application did not, on its terms, affect the walkway. The appellant had also not established any “common assumptions and practices” in the industry which would have attracted such a standard ([42]-[44]).
(viii) The Appeal Panel also rejected the appellant’s argument that the Tribunal should have drawn a Jones v Dunkel inference from the Council’s failure to call any of its officers to give evidence in the hearing, as the issues for determination did not require such evidence. In particular, the issue of whether the Council knew or ought to have known that the works were likely to affect the appellant’s business was resolved by examining the terms of the development application. The appellant did not lead any evidence (which might have required a response by the Council) to suggest that the Council knew the development would affect the use of the walkway ([45]-[47]).
(ix) The Appeal Panel was not persuaded that the appellant might have suffered a miscarriage of justice because the Tribunal’s decision was not fair and equitable, or was against the weight of the evidence. Accordingly, leave to appeal on this ground was also refused ([48]-[49]).
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| Ros v Commissioner of Police [2020] NSWCATAP 70
Administrative and Equal Opportunity Division
Armstrong J, President; S Westgarth, Deputy President
In sum: The Appeal Panel dismissed an appeal from a decision in the Administrative and Equal Opportunity Division to affirm the respondent’s revocation of the appellant’s firearms licence. It was open to the Tribunal, on the evidence before it, to find that the appellant was not a fit and proper person to hold a firearms licence, and that it was not in the public interest for him to do so. The Appeal Panel summarised the principles relevant to its discretion to admit further evidence, and declined to do so in this case.
Facts: The appellant, Mr Ros, was a registered veterinarian. Before 2018, he had held a category AB firearms licence for over 10 years. The appellant’s firearms licence was suspended for three months in 2016 after police attended his property following a domestic dispute, and found his rifle and ammunition stored in a bag in his car ([4]-[5]).
In April 2018, the appellant was taken to hospital following reports of threats to self-harm, made in the context of an ongoing relationship breakdown and custody dispute with his then wife. The appellant’s firearm was seized and his licence suspended, then revoked ([8]).
The appellant requested an internal review, which confirmed the decision to revoke his licence. He then applied for administrative review in the Tribunal, which was also unsuccessful. The Tribunal found that, having regard to the appellant’s history, including his threats of self harm, it was not satisfied that the appellant was a fit and proper person to hold a firearms licence, and it was not in the public interest that he continue to hold one ([9]-[11]).
The appellant appealed from this decision, stating that he requires a firearms licence for his work as a large animal veterinarian and cattle primary producer, and that the Tribunal made a number of errors of fact ([14]).
Held (dismissing the appeal and refusing leave to appeal):
Leave to appeal required
(i) The appellant sought leave to appeal on the merits, which the respondent opposed. As the appellant was a self-represented litigant, the Appeal Panel considered whether it could discern any questions of law from the Notice of Appeal, the appellant’s submissions and the first instance decision, but was not able to do so. The appellant confirmed at the appeal hearing that he did not contend the Tribunal made any error of law ([21], [25]).
Additional evidence
(ii) The appellant sought to orally adduce evidence on appeal that was not before the Tribunal at first instance. This included ([27]):
a. an updated medical opinion, conveyed orally to the appellant during a medical consultation;
b. evidence from the appellant that he does not present ongoing mental health risk because of the passage of time since the Tribunal hearing;
c. evidence from the appellant that there is no ongoing dispute with his ex-partner over child access arrangements.
(iii) This appeal hearing was not conducted as a new hearing in the sense referred to in s 80(3), and no submissions were made to suggest it should be ([29]-[30]).
(iv) The Appeal Panel adopted the analysis of the principles relevant to receiving further evidence on appeal in Yuen v Thom [2016] NSWCATAP 243 at [14]-[22] and Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14. Having regard to these decisions and the guiding principle in s 36 of the NCAT Act, the appeal in this case was one akin to a “rehearing”, with the ability to receive further evidence if appropriate ([32]).
(v) Relevant considerations for the receipt of further evidence in such appeals include (citations omitted) ([33]):
a. whether the further evidence relates to the Tribunal’s decision at first instance, and would have been relevant at the time of that decision;
b. whether the further evidence would have produced a different result in the Tribunal;
c. whether admitting the further evidence could cause prejudice to the other party; and
d. whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, serious injustice has resulted from the exercise of the Tribunal’s discretion.
(vi) Although the Appeal Panel has the power to receive further evidence, its powers in an appeal that is not a new hearing would ordinarily be construed on the basis they are to be exercised for the correction of error: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 at [13]-[14] ([35]).
(vii) In relation to the first category of evidence, given the absence of any written medical report, the Appeal Panel could not assess whether the appellant’s doctor had expressed any views that were not already in evidence before the Tribunal ([37]).
(viii) In relation to the second category, this seemed to be oral evidence to support an “effluxion of time” argument. It is not relevant to an examination of the Tribunal decision below whether the appellant’s circumstances have changed since it was made (although the appellant could apply for a new firearms licence on this basis) ([34], [38], [41]).
(ix) In relation to the third category, there was no evidence presented as to the status of the child access proceedings, and the appellant acknowledged that any arrangements about visitation rights would be subject to change ([39]).
(x) The Appeal Panel was not persuaded that it should allow the admission of further evidence from the appellant, as it was not relevant to disproving any findings of fact made at first instance, and it was not clear that it would have produced a different result ([40], [42]).
Findings on alleged errors of fact
(xi) The Tribunal was entitled to give limited weight to the medical reports tendered by the appellant at first instance because they did not specify the basis for the opinions expressed, the appellant did not have an ongoing consultation/treatment relationship with any of the doctors, and at least one report was influenced by the appellant’s statements that he needed a firearms licence in order to work ([47]-[51]).
(xii) There was probative evidence available to the Tribunal on which to base its finding that “it was more likely than not” a suicide attempt had been made ([54]).
(xiii) In relation to the Tribunal’s findings about ongoing custody disputes between the appellant and his former wife, and the appellant’s behaviour during those disputes, the conclusions which the Tribunal reached were available to it on the evidence ([62]).
(xiv) The appellant also contended that the Tribunal made a number of factual errors in finding that the appellant lacked recognition of his obligations as a licence holder. However, no one piece of evidence was determinative on this issue. The conclusions reached by the Tribunal were available on the evidence before it, and the Appeal Panel could not see any proper basis on which leave to appeal on the merits should be granted ([63]-[69]).
(xv) Finally, the appellant contended that the Tribunal erred in its expectation that he prove “zero ongoing risk” to public safety. However, the Appeal Panel found the Tribunal did not require the appellant to meet such a standard. Instead, the Tribunal cited a number of authorities regarding the need to determine whether there is “virtually no risk” in granting a person a firearms licence. The Tribunal did not misinterpret or misapply the law ([70-[74]).
(xvi) Accordingly, leave to apply on a question of fact was refused, and the appeal dismissed ([75]).
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| DTN v Commissioner of Police [2020] NSWCATAP 73
Administrative and Equal Opportunity Division
L Pearson, Principal Member; Dr R Dubler SC, Senior Member
In sum: The Appeal Panel allowed an appeal in part from a decision in the Administrative and Equal Opportunity Division relating to the information protection principles in the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act).
In circumstances where the appellant was aware of one record held by the respondent which contained incorrect health information about him, the Appeal Panel indicated a number of sources of power for the Tribunal to order that the respondent search its other records to ensure that the error does not appear elsewhere.
Facts: The appellant was a police officer in the NSW Police Force (NSWPF) who was medically discharged in 2012. Since then, he has had disputes with an insurance company about his claim for an on-duty total and permanent disability benefit ([1]).
In 2014, the NSWPF provided a statement (the Employer Statement) to the insurance company which listed one of the appellant’s conditions as being a “psychotic illness” ([2]).
After the insurance company denied the appellant’s claim, the appellant gained access to this document and was shocked and distressed at this error ([2], [7]).
The appellant lodged an internal review application with the respondent, requesting that NSWPF provide an amended Employer Statement reflecting a factual diagnosis of his condition, and that his NSWPF records be revisited and actions taken to ensure the mistake did not happen again ([7]-[9]).
When the respondent determined the appellant’s internal review application, it found there had been a contravention of the “accuracy” Health Privacy Principle in cl 9 of Schedule 1 to the HRIP Act, and proposed to issue an apology to the appellant. At this point, the inaccurate information in the Employer Statement had already been amended ([10]-[13]).
The appellant applied to the Tribunal for review of this decision, seeking compensation for loss and damage suffered because of the respondent’s conduct, and an order that the respondent take whatever steps necessary to locate and correct any documents or electronic records containing a reference to him having a “psychotic illness” ([17]).
At first instance, the Tribunal ordered that the respondent pay $1,000 of compensation to the appellant. The appellant appealed from this decision ([18]-[19]).
Held (varying the decision below in part, remitting the question of whether the Tribunal should make additional orders sought by the appellant, and otherwise dismissing the appeal):
Inadequacy of the damages award
(i) The appellant sought damages of $40,000, being the maximum payable under s 55(2)(a) of the PPIP Act. He submitted that the Tribunal ought to have found that the respondent’s conduct caused or materially contributed to his insurance claim being rejected ([34]-[35]).
(ii) In the proceedings below, the appellant bore the onus of establishing the causal link between the breach of privacy and the damage suffered (i.e. the refusal of his insurance claim). The common law test of causation was applicable – such that, if the breach “materially contributed” towards the damage, a causal connection would ordinarily exist, even if other circumstances also contributed to the damage ([44]).
(iii) It was not an error for the Tribunal to rely on the evidence before it, including from an employee of the insurer who stated that the insurer did not rely on the false information in the Employer Statement in making its decision ([49]).
(iv) It was also open for the Tribunal to place some reliance on a witness’s statement which the appellant said contained false information, in circumstances where the appellant had an opportunity to test that evidence in cross-examination but did not do so. In any case the section of the statement referred to in the Tribunal’s reasons was irrelevant to the determination of the appellant’s claim, and there was nothing to suggest the Tribunal relied on this evidence in making key findings ([61]-[62]).
(v) The appellant did not adduce any evidence to establish a causal link between his declined insurance claim and the respondent’s conduct ([50]).
(vi) The appellant also sought to rely on fresh evidence, which was a letter from the insurer he obtained pursuant to a “freedom of information” request after the first instance proceedings. The appellant submitted that this letter showed the insurer had taken into account the false information that he had a “psychotic illness” in deciding to reject his claim ([64]-[65]).
(vii) The Appeal Panel referred to the discussion of principles governing the receipt of further evidence on appeal in Ros v Commissioner of Police [2020] NSWCAT AP (see above). Those include the relevance of the evidence to the decision below, whether it would have been likely to produce a different result, whether receipt would prejudice the other party, and whether it would allow the Appeal Panel to consider whether a serious injustice resulted from the decision ([70]).
(viii) In the Appeal Panel’s view, the letter sought to be adduced did not show any causal link between the respondent’s conduct and the rejection of the appellant’s insurance claims. It was not satisfied that a different result would have been produced if it had been before the Tribunal, or that it demonstrated any serious injustice caused by the Tribunal’s decision ([71]).
(ix) Accordingly, the Appeal Panel declined to allow the fresh evidence ([72]).
(x) It was open for the Tribunal to award $1,000 of damages to the appellant, and it did not err in doing so, in circumstances where it was satisfied that there was a causal link between the respondent’s conduct and the psychological distress suffered by the appellant, but not that the appellant had suffered any consequent financial loss ([76]).
(xi) The Appeal Panel also noted that the amount of compensation payable should be considered in the context of the $40,000 statutory limit, which is reserved for serious breaches ([78]).
Failure to order an apology
(xii) In the decision below, the Tribunal said it was “appropriate that the respondent make a formal apology” to the appellant, but overlooked ordering that a formal apology be made. Despite this being an element of the respondent’s internal review decision, the respondent took the view after the Tribunal’s decision that an apology was not required, and that damages were an appropriate remedy ([85]-[88]).
(xiii) The Appeal Panel found it was “very likely that the Tribunal assumed that the apology would be granted, if it had not already been granted”, and ordered that the Tribunal’s decision be varied to affirm the part of the internal review decision which proposed to issue an apology ([91], [95]).
(xiv) The Tribunal had the power to make such an order by virtue of s 53(7)(b) of the PPIP Act (which provides that a public sector agency may make a formal apology to an internal review applicant), together with s 63(2) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 30(2)(b) of the NCAT Act (which provide that the Tribunal can vary, affirm, or set aside a reviewable decision, and can exercise the same functions as the original decision maker) ([92]-[94]).
Failure to make other orders to ensure the conduct does not occur again
(xv) Without forming a conclusion, the Appeal Panel observed there were a number of sources of power which could have supported the making of the other orders sought by the appellant – that is, that the respondent take whatever steps necessary to locate and remove any references to the appellant having a “psychotic illness” in its documents and electronic systems ([96], [104]).
(xvi) These included ([104]-[116]):
a. s 53(7)(e) of the PPIP Act (“implement[ing] administrative measures to ensure that the conduct will not occur again”) together with s 63(2) of the ADR Act and s 30(2)(b) of the NCAT Act (see above);
b. s 55(2)(c) of the PPIP Act (“an order requiring the performance of an information protection principle”) together with the principles in s 15 of the PPIP Act and cl 8 of schedule 1 to the HRIP Act (“alteration of personal information” and “alteration of health information” respectively);
c. s 55(2)(d) of the PPIP Act (which empowers the Tribunal to order the correction of information that has been disclosed by a public sector agency);
d. s 55(2)(g) of the PPIP Act (which permits the Tribunal to make such “ancillary orders” as it thinks appropriate).
(xvii) In the Appeal Panel’s view, the Tribunal might have proceeded under the misapprehension of law that it was not empowered to make orders sought by the appellant by reason of a lack of causal or sufficient relationship with the respondent’s conduct in relation to the Employer Statement ([117]).
(xviii) This matter was remitted to the Tribunal for reconsideration in accordance with the Appeal Panel’s reasons ([119]).
Other errors in the decision
(xix) The appellant pointed to factual errors in the decision, relating to the manner and timeframe in which his insurance claim was dealt with ([120]-[122]).
(xx) These errors did not affect the outcome of the Tribunal’s decision, and did not give rise to any miscarriage of justice. In any case, given that the matter was to be remitted to the Tribunal, these minor issues could be dealt with by way of submissions on remittal ([127]).
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| | | Miller v Kadir [2020] NSWCATAP 57
Consumer and Commercial Division - Home Building
Decision of: P Durack SC, Senior Member; G Sarginson, Senior MemberCatchwords: APPEALS – home building - building defect in swimming pool – errors in dismissing claim |
| Saqa v Kashro [2020] NSWCATAP 58
Consumer and Commercial Division - Tenancy
Decision of: A Suthers, Principal Member; L Wilson, Senior Member Catchwords: RESIDENTIAL TENANCIES – substantial miscarriage of justice – proper test for against the weight of evidence |
| Smith v Li [2020] NSWCATAP 59
Consumer and Commercial Division - Tenancy
Decision of: Armstrong J, President; P Durack SC, Senior MemberCatchwords: CONSENT ORDERS – appeal out of time – length and reason for delay – merits of appeal – whether consent orders valid – whether breach of procedural fairness |
| Waters v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village and Tourist Park [2020] NSWCATAP 60
Consumer and Commercial Division - Residential Communities
Decision of: S Higgins, Senior Member; D Charles, Senior MemberCatchwords: APPEALS – appeal on a question of law – procedural fairness – bias – actual bias – apprehended bias – whether Tribunal failed to apply the applicable law APPEALS – leave to rely on fresh evidence
APPEALS – leave to appeal – whether the decision not fair and equitable and against the weight of evidence |
| Robust Builders Pty Ltd v Bhardwaj (No 2) [2020] NSWCATAP 61
Consumer and Commercial Division - Home Building
Decision of: S Thode, Senior Member; JS Currie, Senior MemberCatchwords: COSTS - Costs of appeal from Consumer and Commercial Division - costs order- refusal to order costs on indemnity basis |
| Scuderi v Corfu Pools Pty Ltd [2020] NSWCATAP 62
Consumer and Commercial Division - Home Building
Decision of: P Durack SC, Senior Member; D Robertson, Senior MemberCatchwords: APPEALS-home building - swimming pool paving-work done by both homeowners and builder – cause of defects unclear – alleged errors of fact – decision claimed to be against the weight of the evidence - new evidence – leave to appeal refused |
| Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63
Occupational Division
Decision of: Armstrong J, President; L Pearson, Principal MemberCatchwords: SUMMARY DISMISSAL – failure to comply with directions – application to dismiss appeal proceedings for want of prosecution |
| D’Amico v The Owners-Strata Plan No 87635 [2020] NSWCATAP 65
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; D Robertson, Senior MemberCatchwords: APPEAL – Building and Construction – Home Building Act 1989 (NSW) – Building dispute – appellant ordered to pay compensation for defective building work – appellant denied that he was the builder – Home Owners Warranty insurance issued in the name of the appellant – appeal dismissed – no issue of principle |
| D’Annunzio v North Sydney Council [2020] NSWCATAP 66
Consumer and Commercial Division - Commercial
Decision of: L Pearson, Principal Member; Dr J Lucy, Senior MemberCatchwords: APPEAL – Retail leases – Claim of misleading or deceptive conduct - Whether Tribunal erred in its construction of the word “road” in the lessor’s disclosure statement – Whether the Tribunal’s findings were against the weight of evidence |
| 1950 Investments Pty Ltd t/as Hogan Prestige Garage v Wabbits Pty Ltd [2020] NSWCATAP 67
Consumer and Commercial Division - Motor Vehicles
Decision of: S Higgins, Senior Member; Dr J Lucy, Senior MemberCatchwords: PRACTICE and PROCEDURE – appellant failed to appear at hearing of appeal – whether appeal to be heard and determined on an ex parte basis, or dismissed for failure to appear |
| Liang v Wincrest Group Pty Ltd (No 2) [2020] NSWCATAP 68
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; A Boxall, Senior MemberCatchwords: COSTS - appeal dismissed – costs of appeal |
| Almahy v Jones [2020] NSWCATAP 69
Consumer and Commercial Division - Tenancy
Decision of: R L Hamilton SC, Senior Member; Dr J Lucy, Senior MemberCatchwords: APPEAL – Jurisdiction – Federal matter – Tribunal has no jurisdiction |
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| Ros v Commissioner of Police [2020] NSWCATAP 70
Administrative and Equal Opportunity Division
Decision of: Armstrong J, President; S Westgarth, Deputy PresidentCatchwords: APPEAL – administrative review - firearms licence – revocation –– nature of the appeal – whether additional or further evidence allowed - fit and proper person – public interest – leave grounds – findings of Tribunal available on evidence |
| Strata 778 Pty Ltd v Enright (No 2) [2020] NSWCATAP 71
Consumer and Commercial Division - Commercial
Decision of: T Simon, Principal Member; G Sarginson, Senior MemberCatchwords: COSTS---Rule 38A Civil and Administrative Tribunal Rules 2014---Amount claimed or in dispute in appeal proceedings---Whether special circumstances must be established |
| Javam v Islam [2020] NSWCATAP 72
Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; G Blake AM SC, Senior MemberCatchwords: COSTS – party/party – general rule that costs follow the event – success – exceptions to general rule that costs follow the event – discretion – appeal from a discretionary decision |
| DTN v Commissioner of Police [2020] NSWCATAP 73
Administrative and Equal Opportunity Division
Decision of: L Pearson, Principal Member; Dr R Dubler SC, Senior MemberCatchwords: ADMINISTRATIVE REVIEW – privacy – health information – damages for contravention of Health Privacy Principle – causation – review of discretionary judgment – parameters of “ancillary orders” under s 55(2)(g) of the Privacy and Personal Information Protection Act 1998 (NSW) APPEAL – practice and procedure – error of law – review of discretionary orders
WORDS AND PHRASES — meaning of words “ancillary orders” under s 55(2)(g) of the Privacy and Personal Information Protection Act 1998 (NSW) |
| | 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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