NCAT Appeal Panel Decisions Digest Issue 3 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 March 2024: |
Eades v Qantas Airways Limited [2024] NSWCATAP 35: An Appeal Panel dismissed an appeal brought on the basis that NCAT had determined it lacked jurisdiction as the respondent had raised a defence which relied on federal law. The respondent had alleged a defence arose under the Montreal Convention relating to International Air Travel which is incorporated into Australian federal law via the Civil Aviation (Carriers Liability) Act 1959 (Cth). The Appeal Panel noted the importance of considering whether, because art 33 of the Convention states an action for damages must be brought before a court, NCAT lacked jurisdiction to hear the claim from its outset. The Appeal Panel explained the relevant considerations in claims of this nature and identified potential deficiencies in the approach adopted by the Tribunal but dismissed the appeal as it was futile where the appellant had not established loss.
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Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36: An Appeal Panel allowed an appeal from a decision of NCAT which had failed to document in reasons why expert evidence had been rejected. The Appeal Panel held a failure to consider key evidence put forward by both parties, and engage or grapple with this evidence, constituted a breach of procedural fairness giving rise to a question of law. An error of law that may constitute a question of law arose where the reasoning process engaged with by the Tribunal was not clear from the Tribunal’s reasons.
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Insurance and Care NSW v FMM [2024] NSWCATAP 43: An Appeal Panel allowed an appeal from a decision of the Administrative and Equal Opportunity Division of NCAT in light of the Tribunal’s interpretation of ‘disclosure’ arising under s 18 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and clause 11 of Schedule 1 to the Health Records Information Privacy Act 2002 (NSW) (HRIP Act). The Appeal Panel held that the Tribunal at first instance had misapplied these provisions in making out disclosure, instead finding that disclosure of the respondent’s personal information had not occurred because the information was simply ‘made available’ to the receiver rather than ‘made known’.
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Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Does NCAT possess the authority to exercise judicial power where a party raises a defence which arises under federal legislation?
Eades v Qantas Airways Limited [2024] NSWCATAP 35 Consumer and Commercial Division - General A Suthers, Principal Member; D Goldstein, Senior Member
In sum: NCAT is not a court empowered with jurisdiction under Ch III of the Federal Constitution, and so cannot exercise judicial power over a matter which falls within federal jurisdiction (Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15). A matter will fall within federal jurisdiction where a right or duty originates under federal law, or a defence which relies on federal law is “genuinely raised and not incapable on its face of legal argument” (Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 at [35]).
Facts: The appellant (Mr Eades) booked international flights which were changed by the respondent (Qantas) several times, including Qantas booking a Malaysian Airlines flight contrary to Mr Eades’ travel plans. Mr Eades purchased two tickets on a separate Singapore Airlines flight and sought compensation for reimbursement of these tickets from Qantas, as well as damages particularised as reimbursement of taxes and medical expenses associated with the stress of rearranging the flights. Qantas advanced a defence under the Montreal Convention relating to International Air Travel (the Convention) which is incorporated into Australian federal law via the Civil Aviation (Carriers Liability) Act 1959 (Cth), alleging Qantas booked the tickets though Malaysian Airlines only as an “agent” and not as a “carrier”. Where the Convention applies, it governs all claims for damage meaning the raising of this defence under the Convention would deprive NCAT of jurisdiction.
Held (refusing leave to appeal; dismissing the appeal): (i) A claim that begins within NCAT’s jurisdiction can be taken beyond that jurisdiction when a defence which invokes federal jurisdiction is genuinely raised (at [18]). This threshold is low in that “it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument” (citing Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 at [35]) (at [19]). Federal jurisdiction remains engaged even when the relevant defence subsequently fails (Walter v Gardiner (1993) 177 CLR 378 at 393) or when the defence is “so clearly untenable that it cannot possibly succeed” (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130; Spencer v The Commonwealth (2010) 241 CLR 118 at 140 [55]). However, federal jurisdiction is not invoked by a defence that is raised solely to deprive NCAT of jurisdiction or that is “legal nonsense” (at [20]).
(ii) Article 30 of the Convention extends the protections of a carrier to its “servants and agents”. It is clear that because Qantas may have contracted with Mr Eades as agent for Malaysian Airlines, the application of the Convention is capable of legal argument, and may constitute a defence genuinely raised (at [24]).
(iii) Article 33 of the Convention states that an action for damages must be brought “either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination” (emphasis added). Therefore, if Mr Eades’ claim was governed by the Convention, NCAT lacked jurisdiction to hear the claim from the outset because NCAT is not a court (Rosengarten v American Airlines Inc (ARBN 000 775 753) (Civil Claims) [2011] VCAT 1535; Koskinas v Qantas [2016] VCAT 2024 at [20]) (at [27]). Qantas was not required then to rely on the Convention as a defence.
(iv) A separate issue concerned whether the Convention was genuinely raised as a defence, which the Tribunal at first instance did not make a finding on. However, as the appellant failed to establish compensable loss, the appeal is nonetheless dismissed. |
2. In what circumstances will the adequacy of reasons give rise to a question of law?
Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36 Consumer and Commercial Division R Seiden SC, Principal Member; DAC Robertson, Senior Member
In sum: A ‘question of law’ refers to a pure question of law; the path to an appeal being a narrow one. Where an appellant succeeds in demonstrating NCAT has failed to adequately consider key evidence, thereby constituting a breach of procedural fairness or natural justice, a question of law is established. NCAT has a duty to “engage with, or grapple or wrestle” with evidence put forward by both parties. An error of law that may give rise to a question of law will arise where this process has not been adequately documented in the Tribunal’s reasons.
Facts: The respondent (Mr Shepherd) purchased a car with fitted accessories from the appellant (Hermes Nominees) and brought a claim at first instance relating to damage to the roof of the car. The Consumer and Commercial Division of NCAT found that the damage to the roof was caused by faulty installation and ordered that Hermes Nominees pay Mr Shepherd compensation. Hermes Nominees appealed on the basis that the Tribunal at first instance “did not read and/or fully understand the evidence” and “demonstrated insufficient industry knowledge”. Hermes Nominees also made several statements about the weight of evidence being applied by NCAT, including the Tribunal placing inadequate weight on the expert evidence and excessive weight on the respondent’s evidence. Hermes Nominees did not however expressly seek to rely on a question of law in its Notice of Appeal. Neither party was legally represented.
Held (allowing the appeal): (i) A ‘question of law’ refers to a pure question of law (Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 at [60]-[61] and [109]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [53]-[54]; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]), and therefore “the path to an appeal is a very narrow one” (AW v WW (No 2) [2024] NSWSC 146 at [53]) (at [13]). Where the appellant raised a question concerning whether NCAT failed to adequately consider key evidence thereby constituting a breach of procedural fairness or natural justice, this raised a question of law as s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) preserves the rules of natural justice (Kudrynski v Orange City Council [2024] NSWCA 33 at [52]; Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [202]).
(ii) Whilst Hermes Nominees alleged NCAT at first instance did not afford appropriate weight to its expert evidence, the Tribunal did indeed refer to the evidence and so the material cannot be deemed entirely overlooked. However, NCAT has a duty to “engage with, or grapple or wrestle with the cases presented by each party” (Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116]). This duty does not condone an approach which simply prefers one version of events over another (Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187) (at [15]). The real issue is whether is it apparent from the Tribunal’s reasons why they preferred one version of events over the other (at [21]). The Appeal Panel found that NCAT’s reasoning at first instance had not exposed why Hermes Nominees’ expert evidence was rejected. The Appeal Panel found Hermes Nominees had succeeded in demonstrating an error of law.
(iii) Section 62 of the NCAT Act requires the Tribunal to set out in reasons: (a) findings on material questions of fact; (b) the applicable law; and (c) the reasoning process engaged with which led to the relevant conclusion. Therefore, where the Tribunal has effectively evaluated the evidence on hand, the Tribunal will have also satisfied the requirements of s 62. Whether the statutory requirements set out in s 62 have been satisfied raises a question of law (Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940) (at [16]). Hermes Nominees could therefore appeal as of right on the ground of a breach of procedural fairness where NCAT failed to consider the expert evidence and failed to provide adequate reasons (at [17]).
(iv) In relation to the appellant’s grounds concerning weight given to the respondent’s evidence, the Appeal Panel found that this invited a review of the merits rather than raising any question of law. Though, they noted such a view was formed cautiously. The threshold is met where “there has been unreasonableness in decision making or constructive failure to exercise the jurisdiction or whether the decision maker has taken into account relevant or irrelevant matters” (at [18]). |
3. Does NCAT possess the jurisdiction to terminate a residential tenancy agreement where the premises have already been abandoned giving rise to the circumstances set out in s 81(4)(d) of the RT Act?
Yan v Yan [2024] NSWCATAP 32 Consumer and Commercial Division - Residential Tenancy Dr R Dubler SC, Senior Member; D Ziegler, Senior Member
In sum: NCAT lacks the jurisdiction to make a termination order where a residential tenancy agreement has already been terminated pursuant to s 81(4)(d) of the RT Act. The residential tenancy agreement is already considered terminated by reason of the abandonment of the residential premises.
Facts: The appellant (landlord) and the respondents (tenants) entered into a residential tenancy agreement for a period of 12 months. In NCAT at first instance, the tenants sought to have the tenancy agreement terminated on the basis the landlord had breached his obligation to repair and properly maintain the air-conditioning unit. The landlord sought compensation and an order declaring the tenants abandoned the premises. NCAT’s Consumer and Commercial Division found in favour of the tenants and terminated the tenancy agreement under s 103 of the RT Act despite the tenants having already vacated the premises.
Under s 103(1) of the RT Act, NCAT may make a termination order if it is satisfied that the landlord has breached the residential tenancy agreement, and the breach is sufficient to justify termination. Section 81 of the RT Act sets out circumstances where residential tenancies are terminated including termination by order of NCAT, and also termination on the basis the tenant has abandoned the premises. The issue arising on appeal was whether NCAT possessed jurisdiction to terminate the agreement where the tenants had already vacated the premises, and whether the break-fee should be ordered in light of the landlords’ initial breaches.
Held (allowing the appeal in part): (i) Abandonment occurs where a tenant vacates within the fixed term of a lease agreement without the consent of the landlord or an order from NCAT (Darren and Julia Patterson v David Dawson [2015] NSWCATAP 31 at [56]). It is clear that this was a case of termination by abandonment of the premises within the meaning of s 81(4)(d) of the RT Act (at [40]-[41]).
(ii) When the tenants sought to have the tenancy agreement terminated pursuant to s 103 of the RT Act, the agreement had already been terminated by way of the tenants’ abandonment. Therefore, NCAT lacked the jurisdiction to make a termination order when the agreement had already been terminated pursuant to s 81(4)(d) of the RT Act by reason of abandonment. The Tribunal at first instance erred in purporting to make such a termination order under s 103 (at [42], [44]).
(iii) NCAT has the discretion under s 107 of the RT Act to not make an award for the payment of a break-fee even in the instance of proven loss. The landlord suffered a loss in the amount of at least three weeks of lost rent (at [43]). Where NCAT at first instance had already awarded the tenants compensation in relation to the air-conditioning issues, and they relied on this argument to submit that a break-fee should not be granted, the Appeal Panel held that “it would not be appropriate in circumstances where the tenant had already been compensated for such breach by the landlord, to deny the landlord his losses upon the tenants' abandonment” (at [48]). The Appeal Panel ordered that the tenants pay the landlord a break-fee of three weeks rent in the amount of $5,100 under s 107 of the RT Act (at [50]). |
4. What is the meaning of ‘disclosure’ arising under s 18 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and clause 11 of Schedule 1 to the Health Records Information Privacy Act 2002 (NSW) (HRIP Act)?
Insurance and Care NSW v FMM [2024] NSWCATAP 43 Administrative and Equal Opportunity Division Hennessy ADCJ, Deputy President; J Lucy, Senior Member
In sum: The meaning of ‘disclose’ in s 18 of the PPIP Act and clause 11 of Schedule 1 to the HRIP Act should follow the authority set out in Nasr v State of New South Wales [2007] NSWCA 101 at [127] to mean making information known to a person that did not previously have knowledge of such information. Additionally, being able to access information should be distinguished from that information being made known and therefore disclosed for the purposes of these provisions.
Facts: The appellant (the agency) disclosed the respondent’s (FMM’s) personal and health information to an insurance broker (Mr Howes) via email. The Administrative and Equal Opportunity Division of NCAT found at first instance that this breached the non-disclosure obligations arising under s 18 of the PPIP Act and clause 11 of Schedule 1 to the HRIP Act. Mr Howes had opened the email but deleted it before opening the attachment which contained the personal and health information. NCAT ordered that the agency pay FMM $20,000 in compensation.
The agency appealed this decision on the basis NCAT misconstrued and misapplied s 18 of the PPIP Act and clause 11 of Schedule 1 to the HRIP Act. The agency submitted on appeal that the word ‘disclose’ which is used in those provisions should follow the authority set out in Nasr at [127] which interpreted disclose to mean “making known to a person information that the person to whom the disclosure is made did not previously know”. The agency submitted that because Mr Howes had not opened the email attachment, the information was not “made known” to him and so could not be deemed ‘disclosed’. FMM submitted in response that Mr Howes declining to open the attachment did not necessarily mean the information was not disclosed.
Separately, the agency did not seek to appeal NCAT’s order that they pay FMM $20,000 in compensation. This gave rise to a question as to whether the appeal was rendered moot because there would be no practical outcome for either party regardless of the decision made by the Appeal Panel.
Held (allowing the appeal): (i) The appeal is not moot as there exists “a live controversy between the parties” (at [55]). Determining whether the alleged conduct contravenes a privacy principle gives rise to a real dispute between the parties, and therefore holds nonmonetary significance. Even if the appeal is rendered moot, NCAT retains the discretion to determine moot appeals (People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253 at [13]; Jardin and Jardim Investments Pty Ltd v Metcash Ltd [2011] NSWCA 409 at [32]). The Appeal Panel exercised its discretion to determine the appeal because the matter involves novel facts and concerns the application of Nasr so raises a matter of general importance (at [59]-[60]).
(ii) The Court of Appeal’s decision in Nasr is authority for the principle that making information known to a person will amount to disclosure under s 18 of the PPIP Act, except where that person previously had knowledge of this information (at [68], [73]). The information needs to be made known to a person, not just made available to a person. The Appeal Panel held that NCAT at first instance incorrectly found that disclosure had occurred when FMM’s personal information was sent to an insurance broker because the possibility of knowing information should be distinguished from actually knowing the relevant information (at [71], [76]).
(iii) NCAT at first instance should not have distinguished Nasr, the Court of Appeal's interpretation of the word ‘disclose’ being consistent with a purposive construction of the relevant provisions. The Tribunal at first instance found that the caveat relating to the receiver of information possessing prior knowledge did not apply and therefore Nasr should be distinguished. However, the only implication in the present case is that the caveat to the general principle does not apply. It does not necessarily follow that the general principle will also not apply (at [73]). |
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BCA Constructions Pty Ltd v Arsovski [2024] NSWCATAP 31 Consumer and Commercial Division - Home Building Decision of: G Sarginson, Senior Member; D Robertson, Senior Member Catchwords: COSTS---Proceedings at first instance settled prior to hearing by consent orders with issue of costs reserved---r 38 Civil and Administrative Tribunal Rules 2014---Whether costs order should be made in favour of a party---Applicable principles |
Yan v Yan [2024] NSWCATAP 32 Consumer and Commercial Division - Residential Tenancy Decision of: Dr R Dubler SC, Senior Member; D Ziegler, Senior Member Catchwords: LEASES AND TENANCIES – order of termination under s 103 of the Residential Tenancies Act 2010 (NSW) – whether order was correctly issued in circumstances where the tenancy had been abandoned and terminated prior to the order being made – whether break-fee should have been ordered. |
McGinn v Kroopin [2024] NSWCATAP 33 Consumer and Commercial Division - Home Building Decision of: P Durack SC, Senior Member; L Wilson, Senior Member Catchwords: Consumer and Commercial Division — claim against director of supplier company who was not involved in the supply of services-supplier company de- registered after supply of the services-business of supplier company carried on by associated company-allegation of “illegal phoenix activity” — Tribunal found it had no jurisdiction to determine claim-following the decision applicant asked the Tribunal to recuse itself a bias in respect of outstanding question of costs this. APPEALS — questions of law concerning jurisdiction of the Tribunal — decision of the Tribunal upheld — second decision about recusal for bias upheld where not attended by sufficient doubt. |
Zhou v Zhang [2024] NSWCATAP 34 Consumer and Commercial Division - Home Building Decision of: M Harrowell, Deputy President; C Mulvey, Senior Member Catchwords: PRACTICE AND PROCEDURE – building claim – right of applicant to withdraw building claim under s 48I of the Home Building Act 1989 (NSW) – no discretion of the Tribunal to prevent withdrawal of proceedings under s 48I – no right of respondent to insist on final hearing of dispute in these circumstances. |
Eades v Qantas Airways Limited [2024] NSWCATAP 35 Consumer and Commercial Division - General Decision of: A Suthers, Principal Member; D Goldstein, Senior Member Catchwords: CONSTITUTIONAL LAW (CTH) – jurisdiction of Tribunal where claims made in respect of international carriage by air – when the Tribunal is deprived of jurisdiction by the alleged operation of the Montreal Convention |
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Gill v The Owners – Strata Plan No. 17913 [2024] NSWCATAP 37 Consumer and Commercial Division - Strata Scheme Decision of: M Harrowell, Deputy President; S Thode, Principal Member Catchwords: LAND LAW – Strata title – Order to remove strata committee member – eligibility of lot owner to be a member of the strata committee as well as building manager –scope of power of Tribunal to make orders under s 24 of the Strata Schemes Management Act 2015 (NSW) – general orders concerning SMS system to notify lot owners of building works and other matters |
Ryan v Commissioner of Police, NSW Police Force [2024] NSWCATAP 38 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; Dr R Dubler SC, Senior Member Catchwords: LICENCING – firearms licencing – special conditions placed on licence not to use firearms on specific rural land due to its size, shape and location – whether such condition was unlawful or unreasonable |
Jakin Constructions Pty Ltd v Shrimpton [2024] NSWCATAP 39 Consumer and Commercial Division - Home Building Decision of: S Thode, Principal Member; D Goldstein, Senior Member Catchwords: APPEALS- BUILDING AND CONSTRUCTION – renewal – work order not completed – other appropriate orders available on renewal – money order made in accordance with consent orders – no error on a question of law established. |
Joseph v Kiama Municipal Council [2024] NSWCATAP 40 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; G Ellis SC, Senior Member Catchwords: APPEALS — whether the respondent’s application to set aside summonses required leave — nature of application to set aside summonses — adequacy of reasons procedural fairness — claims of legal professional privilege and waiver-apparent relevance of documents sought by summonses — criteria for relevance-application for recusal — evidence permissible to engage s112 of the Government Information (Public Access) Act 2009 (NSW) — adequacy of searches-grounds of appeal lacking sufficient specificity. |
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Notaras v Dourmous [2024] NSWCATAP 42 Consumer and Commercial Division - Home Building Decision of: M Harrowell, Deputy President; D Goldstein, Senior Member Catchwords: PRACTICE AND PROCEEDURE — set aside application — exercise of discretion — failure to consider relevant matters — adequacy of reasons |
Insurance and Care NSW v FMM [2024] NSWCATAP 43 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; J Lucy, Senior Member Catchwords: ADMINISTRATIVE LAW – privacy – whether Appeal Panel has jurisdiction to hear an appeal from an order that agency has contravened an Information Privacy Principle and a Health Privacy Principle – whether appeal is moot ADMINISTRATIVE LAW – privacy – meaning of “disclose” in section 18(1) of the Privacy and Personal Information Protection Act 1998 (NSW) – meaning of “disclose” in clause 11 to Schedule 1 of the Health Records and Information Privacy Act 2002 (NSW) |
Selkirk v The Owners - Strata Plan No 2661 [No 2] [2024] NSWCATAP 44 Consumer and Commercial Division - Strata Scheme Decision of: S Westgarth, Deputy President; G Burton SC, Senior Member Catchwords: REAL PROPERTY – STRATA MANAGEMENT – strict duty of repair – onus of proof on scope and consequences of breach – causation and mitigation – measure and quantification of loss – Strata Schemes Management Act 2015 (NSW) ss 106, 122, 124, 232. COSTS – costs orders on severable issues - application of s 104 Strata Schemes Management Act 2015 (NSW) – quarantining of costs orders in favour of appellant –appropriate orders with success on primary matter appealed and remitted but not on a severable matter appealed. |
PJ Cook Building Pty Ltd v Reid [2024] NSWCATAP 45 Consumer and Commercial Division - Home Building Decision of: S Thode, Principal Member; R C Titterton OAM, Senior Member Catchwords: APPEALS — building and construction — statutory warranties — onus of proof — no issue of principle — no error of fact |
Lenux v The Owners – Strata Plan No 88786 [2024] NSWCATAP 46 Consumer and Commercial Division - Strata Scheme Decision of: K Ransome, Principal Member; J McAteer, Senior Member Catchwords: APPEAL – costs order – denial of procedural fairness – failure to deal with objection to extension of time to make costs application - no opportunity to make submissions |
Nayar v Uren [2024] NSWCATAP 47 Consumer and Commercial Division - Commercial Decision of: S Westgarth, Deputy President; G Sarginson, Senior Member Catchwords: Appeal – dividing fence – procedural fairness occasioned by absence of Appellant at first instance hearing – whether order was fair and equitable – order requiring the Appellant to pay the full cost of the new fence |
Ugur v Legal Aid Commission of New South Wales [2024] NSWCATAP 48 Administrative and Equal Opportunity Division Decision of: I R Coleman SC ADCJ, Principal Member; C Mulvey, Senior Member Catchwords: APPEALS — whether Tribunal erred in dismissing Appellant’s application for review pursuant to Administrative Decisions Review Act 1997 on basis that Appellant failed to identify a reviewable administrative decision in accordance with the Act |
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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. |
