Subject: NCAT Appeal Panel Decisions Digest Issue 4 of 2020

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NCAT Appeal Panel Decisions Digest
Issue 4 of 2020
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 May 2020:
  • The Owners – Strata Plan No 55773 v Roden; Spiers v The Owners – Strata Plan No 77953 [2020] NSWCATAP 95 – the Appeal Panel allowed one appeal and dismissed another from the Consumer and Commercial Division (heard concurrently), on the basis that a by-law which limits or completely prohibits the keeping of pets in a residential strata scheme is not “harsh, unconscionable or oppressive” within the meaning of ss 139(1) and 150 of the Strata Schemes Management Act 2015 (NSW).

  • The Owners – Strata Plan No 58068 v Cooper [2020] NSWCATAP 96 – the Appeal Panel allowed another appeal from the Consumer and Commercial Division on the same basis as the above decision, noting in particular that an owners corporation is not required to give a “balanced consideration” to all lot owners’ interests, nor to “objectively justify” a by-law prohibiting pets in order to avoid it being declared invalid under s 150, and that “contemporary community standards” are not a relevant consideration in determining whether such a by-law contravenes s 139(1). 

  • James v NSW Land and Housing Corporation [2020] NSWCATAP 64 – the Appeal Panel allowed an appeal from the Consumer and Commercial Division on the basis that the Tribunal erred in not granting a stay of residential tenancy proceedings, pending the resolution of the appellant’s criminal trial, where there was a “commonality of issues” in those proceedings. 

  • Digby v Challis Private Hotel Pty Ltd t/as Challis Lodge [2020] NSWCATAP 94 – the Appeal Panel allowed an appeal from the Consumer and Commercial Division on the basis that the Tribunal below erred, in dismissing the appellant’s reinstatement application and refusing an extension of time to file that application, by (a) considering the matter on the papers without making an order to dispense with a hearing, (b) failing to granting an adjournment to allow the appellant to obtain legal advice, and (c) failing to properly consider the appellant’s submissions. 

  • Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99 – the Appeal Panel allowed an appeal from the Consumer and Commercial Division on the basis that the appellants were denied procedural fairness, because the Tribunal did not give them an opportunity to cross-examine the respondent’s witness in the proceedings below (while noting that cross-examination is not an essential element of an oral hearing).

  • Graham O’Keefe v Integral Corporate Property Pty Ltd [2020] NSWCATAP 76 – the Appeal Panel dismissed an appeal from a decision in the Consumer and Commercial Division, and in doing so, set out a range of authorities relevant to distinguishing between errors of fact and errors of law in Tribunal proceedings. 

  • Jayasooriah v Wisdom Properties Group Pty Ltd [2020] NSWCATAP 81 – the Appeal Panel allowed an appeal from the Consumer and Commercial Division on the basis that (a) the Tribunal below was functus officio on one part of the appellant’s application, which was the subject of consent orders made in an earlier directions hearing, and (b) the Tribunal failed to determine the other part of the appellant’s application, amounting to a failure to exercise its jurisdiction under the Home Building Act 1989 (NSW). 

  • Fraser v SafeWork NSW [2020] NSWCATAP 92 – the Appeal Panel allowed an appeal from the Administrative and Equal Opportunity Division, holding that s 271 of the Workplace Health and Safety Act 2011 (NSW) and cl 6(1) in the Table in s 14 of the Government Information (Public Access) Act 2009 (NSW) do not operate to create a presumption against disclosure of information under the latter Act. The Appeal Panel also questioned the weight that should be given to cl 1(d) and (f) in the Table in s 14 in circumstances where the supply of information to a government agency is compulsory, as it is under s 155 of the Workplace Health and Safety Act.
Each case title is hyperlinked to the full decision available on NSW Caselaw.
Significant Decisions
The Owners – Strata Plan No 55773 v Roden; Spiers v The Owners – Strata Plan No 77953 [2020] NSWCATAP 95
Consumer and Commercial Division - Strata
Armstrong J, President; M Harrowell, Deputy President; L Wilson, Senior Member

In sum: Hearing two appeals from the Consumer and Commercial Division concurrently, the Appeal Panel allowed one and dismissed the other, on the basis that neither (a) by-laws prohibiting pets nor (b) by-laws limiting pets to only one pet per lot in a strata scheme are “harsh, unconscionable or oppressive” within the meaning of s 139(1) of the Strata Schemes Management Act 2015 (NSW) (the SSMA).

Roden (see below) is currently being appealed to the NSW Court of Appeal.

Facts: The Appeal Panel heard two appeals together, both related to the keeping of animals in residential strata schemes ([1]). 

The first was an appeal by an owners corporation from the Tribunal’s decision in Roden v The Owners – Strata Plan 55773 [2019] NSWCATCD 61 (Roden), in which it was held that a by-law prohibiting animals (other than guide or hearing dogs) from being kept in the strata scheme was harsh, unconscionable or oppressive within the meaning of s 139(1) of the SSMA, and declared invalid under s 150 of the SSMA (the Roden appeal) ([7]). 

The second was an appeal by a lot owner from the decision in The Owners – Strata Plan No. 77938 v Spiers (unpublished) (Spiers), in which the Tribunal held that a by-law which permitted only one small animal to be kept on each lot was not harsh, unconscionable or oppressive within the meaning of s 139(1) (the Spiers appeal) ([29]-[30]). 

In Roden, the Tribunal followed a previous first instance decision in the Consumer and Commercial Division, Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19 (Yardy) ([54]-[55]):

Shortly before the Roden and Spiers appeals were heard, another first instance decision was published relating to the same issue: Owners – Strata Plan No 58068 v/ats Cooper [2019] NSWCATCD 62 (Cooper). The Tribunal in that case did not follow Roden or Yardy, but decided based on different reasoning that a by-law prohibiting pets was harsh, unconscionable and oppressive, contravening s 139(1). At the appeal hearing, the parties in Roden and Spiers were invited to make oral submissions about the first instance Cooper decision, and the Appeal Panel took these into account in its reasons ([51]).

Held (allowing the Roden appeal and dismissing the Spiers appeal):

Power to make by-laws

(i) The power under s 136(1) of the SSMA to make by-laws “in relation to” the “control, use or enjoyment of lots … [in] a strata scheme” includes a power to prohibit or restrict activities on lot property. This is different from the situation in Queensland, where by-laws can be made for the “regulation of … the use and enjoyment of … lots”, which generally excludes outright prohibition ([46](6), [48]-[49]). 

Effect of transitional provisions

(ii) The combined operation of ss 136(2) and 139(1) means that a by-law which is harsh, unconscionable or oppressive would have “no force or effect” ([138]).

(iii) However, cl 4(2) of Sch 3 to the SSMA expressly preserves the validity of a by-law made prior to the commencement of the SSMA. A by-law prohibiting the keeping of animals that was valid under the former legislation is therefore not rendered invalid by reason of the passing of the SSMA ([5](1), [139], [143](1), [185]).

(iv) Nevertheless, s 139(1) may be contravened by reason of circumstances occurring after the commencement of the SSMA. In this regard, there is a temporal consideration arising from the operation of ss 136, 139(1) and 150 of the SSMA ([140]).

(v) The SSMA did not make impermissible or invalidate existing by-laws that prohibited the keeping of animals. Yardy and other first instance Tribunal decisions do not appear to take a different view, however, to the extent they do, they were wrongly decided ([47]).

Operation of s 139(1)

(vi) A by-law made under the former legislation may contravene s 139(1) and be declared invalid under s 150 of the SSMA if it is harsh, unconscionable or oppressive ([5](2)], [143](2)).

(vii) A by-law may be harsh, unconscionable or oppressive ([5](3)], [143](3)):
  • by its terms;
  • because, by its passing, it imposes a new obligation upon or removes an existing right from a lot owner.
  • because of the way it operates on a lot owner or owners, considering their particular facts and circumstances that might arise from time to time. 
(viii) It is unnecessary to determine the exact scope of the expression “harsh, unconscionable or oppressive” ([128]).

(ix) The fact that a by-law prohibits the keeping of animals does not, of itself, mean that the by-law is harsh, unconscionable or oppressive. Contrary to what the Tribunal said in Roden (following Yardy), the simple fact of a universal prohibition and that a by-law provides no mechanism for exclusion from its operation are not matters which, on their own, render a by-law harsh, unconscionable or oppressive ([5](4), [127], [143](4)).

(x) Contrary to the Tribunal’s reasoning in the Cooper first instance decision:
  • There is no general obligation on an owners corporation to prove that a by-law prohibiting pets, once challenged by a lot owner in s 150 proceedings, is “objectively justified” ([5](5), [143](5)).
  • Determining whether a by-law which prohibits the keeping of animals is harsh, unconscionable or oppressive does not involve a consideration of whether the by-law has been reviewed in a manner contemplated by cl 4(1) of Sch 3 to the SSMA, or whether an existing strata scheme has made “a conscious choice” to retain such a by-law. Such an approach diverts the Tribunal from a consideration of the by-law under challenge and its operation on the affected person ([131]-[132]).
  • The matters referred to as reflecting the “legislative intention” behind the SSMA were no more than an aspirational goal that might have been expressed by the Minister concerning the keeping of animals in strata schemes. They did not affect the meaning of the words in s 139 or the onus of proof in s 150 proceedings ([133]).
  • The suggestion that a no pets by-law “may be objectively justified” if a purchaser has “clear notice, confirmed by express written acknowledgement, of the… by-law” or provides a written undertaking “not to challenge [it]” ignores the effect of s 135 of the SSMA ([134]). 
  • The characteristics of a particular animal or types of animal are not, of themselves, relevant to a determination of whether a by-law prohibiting the keeping of animals is harsh, unconscionable or oppressive ([135]).
(xi) In considering whether a by-law contravenes s 139(1), the following matters are relevant ([5](6), [143](6)):
  • the terms of the by-law,
  • the history of the by-law,
  • the circumstances in which the by-law came to operate on various lot owners (including the circumstances in which any lot owner acquired a legal interest in property in the strata scheme), and
  • the particular circumstances of the applicant that might otherwise demonstrate the by-law is harsh, unconscionable or oppressive.
(xii) The test under s 139(1) is objective, not subjective ([5](7), [128](7), [143](7)).

(xiii) There is a variable scale of severity, whether the phrase “harsh, unconscionable or oppressive” is read collectively or disjunctively and/or whether the section operates in different circumstances ([5](8), [128](6), [143](8), [173]-[174]).

(xiv) The degree of severity is higher than the standard of “unreasonable”, which is the standard in the Queensland legislation ([5](9); [128](8), [143](9), [172]).

Disposition of the Roden and Spiers appeals

(xv) The Tribunal in Roden erred in determining that a by-law prohibiting pets was harsh, unconscionable and oppressive ([153]).

(xvi) The circumstances of the Roden case, including the history of the strata scheme and the fact that Mr Roden acquired his lot knowing that animals were prohibited, did not justify a conclusion that the by-law was harsh, unconscionable or oppressive ([170]).

(xvii) On this basis, the Roden appeal was allowed, the orders made by the Tribunal set aside, and Mr Roden’s initial application to the Tribunal dismissed ([187]).

(xviii) On the other hand, the Spiers appeal was dismissed, the Appeal Panel describing it as “self-evident” that a limitation on the number of animals that can be kept on each lot in a large strata scheme cannot, of itself, make a by-law harsh, unconscionable or oppressive ([203]).

(xix) Ms Spiers’ submission that the by-law was harsh, unconscionable or oppressive because it did not take into account the different sizes of units in the scheme was also rejected ([209]-[210]).
The Owners – Strata Plan No 58068 v Cooper [2020] NSWCATAP 96
Consumer and Commercial Division - Strata
Armstrong J, President; M Harrowell, Deputy President 

In sum: The Appeal Panel allowed an appeal from another decision in the Consumer and Commercial Division concerning a by-law prohibiting the keeping of pets in a strata scheme. The Appeal Panel held that the by-law in question was not harsh, unconscionable or oppressive within the meaning of s 139(1) of the SSMA, following the reasoning in the Roden and Spiers appeals (published on the same day). 

This matter is also being appealed to the NSW Court of Appeal. 

Facts: Mr and Mrs Cooper are lot owners in a large residential strata scheme. They own a 13 year-old miniature schnauzer named Angus, which they acquired 9 years before buying into the scheme in 2015 ([1]).

By-law 14 of the strata scheme prohibits owners and occupiers from permitting any animal (with the exception of assistance animals) to be on a lot or the common property of the scheme ([2]).

Mrs Cooper has unsuccessfully attempted a number of times to repeal and replace by-law 14 in general meetings of the owners corporation ([10]-[16]). 

In April 2019, the owners corporation commenced proceedings against the Coopers in the Tribunal seeking the permanent removal of Angus from the strata scheme under s 156 of the SSMA. In June 2019, the Coopers lodged a cross application against the owners corporation, seeking a declaration under s 150 that by-law 14 is invalid ([18], [20]).

The Tribunal found that by-law 14 was invalid for different reasons than previous first instance decisions on this issue (Yardy and Roden) ([21]). In particular, the Tribunal reasoned that:
  • “[A] scheme which wishes to have a blanket “no pets” by-law needs objectively to justify that choice in the context and circumstances of the scheme where, and once, that choice is challenged by a particular owner or owners in respect of particular types of pet and where evidence is led that gives a proper basis for that challenge” ([24]).
  • Once the Coopers had “demonstrated a proper basis for a case that the nature of Angus … makes it [harsh, unconscionable or oppressive] simply to ban and seek to expel his type of pet … under a blanket prohibition”, the “evidential onus” fell on the owners corporation to “put forward evidence… of the particular strata scheme” that the blanket prohibition was not harsh, unconscionable or oppressive ([25]-[26]). 
  • Because the owners corporation was not able to do this, the Tribunal made an order declaring by-law 14 invalid ([27]). 
At the time this appeal was heard, the Roden and Spiers appeals were reserved before an Appeal Panel constituted by the same members as this one, together with Senior Member Wilson ([65]). 

Held (allowing the appeal, setting aside the Tribunal’s declaration of invalidity, and substituting an order that the respondent’s dog be removed from the lot):

(i) The Appeal Panel reiterated the key conclusions reached in the Roden and Spiers appeals, outlining the circumstances in which a by-law prohibiting pets may be harsh, unconscionable or oppressive within the meaning of s 139(1), and the factors relevant to that assessment ([70]).

(ii) While the ability to choose whether or not to bring an animal onto land may be seen as an “ordinary right” which is an incident of land ownership, in a community living situation under the SSMA, that choice is permitted to be made through the making of by-laws ([87], [89]).

(iii) The SSMA is an Act regulating the rights of lot owners between each other. The SSMA permits the making of by-laws that affect the rights of lot owners ([118]).

(iv) “Contemporary community standards” are not a relevant consideration in deciding whether a by-law prohibiting pets is harsh, oppressive or unconscionable under s 139(1). The section does not involve a consideration of a broader notion of what might be “unjust”, nor is contravention to be determined by reference to the general benefits to or expectations of the community at large concerning the keeping of animals. A by-law only operates within a limited community and must be considered in this context ([100]-[101], [109]).

(v) The fact the Legislature decided, in regulating for model by-laws, to exclude the former “Option C” (prohibiting animals) does not assist. There is no requirement for a strata scheme to adopt model by-laws, nor is there anything in the SSMA preventing regulating for a model by-law like Option C in the future ([105]).

(vi) An owners corporation is not limited to passing by-laws of a type that give balanced consideration to the interests of all lot owners or occupiers, or enable the consideration of the characteristics of the particular pet, as opposed to passing a by-law that is an outright prohibition ([113], [131]).

(vii) The fact that a by-law does not permit a subsequent review of its operation other than by amendment via special resolution does not make the by-law harsh, unconscionable or oppressive ([115]).

(viii) While a by-law that has an impact on a person in a particular way may be considered harsh, unconscionable or oppressive, all the circumstances in which that impact came about must be considered in determining whether s 139(1) is contravened ([116]).

(ix) The fact that a particular animal might be regarded as “inoffensive” is not, of itself, a reason why a by-law preventing the keeping of animals is harsh, unconscionable or oppressive ([129]).

(x) Contrary to the reasoning of the Senior Member below, the question of invalidity is not resolved by considering a shift in the evidential burden, nor is the absence of evidence from an owners corporation justifying a particular by-law determinative of the question. Rather, all the relevant facts as found by the Tribunal must be considered in determining whether s 139(1) has been contravened ([153]).

(xi) The Coopers chose to purchase a lot in a strata scheme knowing that it did not permit the keeping of animals. In response to multiple attempts at amendment, the majority of lot owners in the scheme consistently supported the preservation of by-law 14. There was no evidence of any medical, psychological or other need of the Coopers which would render the by-law or its operation harsh, unconscionable or oppressive ([142]-[145], [149]).

(xii) The evidence did not demonstrate that by-law 14, by its terms, having regard to the circumstances in which it came to operate or having regard to the particular circumstances of the Coopers, could be considered harsh, unconscionable or oppressive ([147], [155], [157]).
James v NSW Land and Housing Corporation [2020] NSWCATAP 64
Consumer and Commercial Division - Social Housing
S Thode, Senior Member; Dr J Lucy, Senior Member

In sum: The Appeal Panel allowed an appeal from a decision of the Consumer and Commercial Division (unpublished) on the basis that the Tribunal erred in not granting a stay of residential tenancy proceedings, pending the resolution of the appellant’s criminal trial. The Appeal Panel set out the principles and authorities relevant to granting an adjournment when criminal proceedings are pending.

Facts: The NSW Land and Housing Corporation (the landlord) applied to the Tribunal for an order terminating Mr James’s tenancy on the basis that Mr James was using the residential premises unlawfully. It relied upon a police facts sheet which stated that drugs and prohibited weapons had been found on the premises during a police search ([1]). 

At the hearing, Mr James sought an adjournment of the proceedings until after the determination of criminal charges against him, which had arisen out of the police search. The Tribunal refused to grant an adjournment. It found, on the balance of probabilities, that the premises were used for the supply of drugs and/or for an unlawful purpose and made an order under s 91 of the Residential Tenancies Act (the RT Act) terminating Mr James’s tenancy ([2]-[3]). 

Mr James appealed on the grounds that (a) the Tribunal erred in failing to grant an adjournment and (b) there was no probative evidence to support its finding that the premises were being used for an unlawful purpose ([4]). 

Held (allowing the appeal):

Whether the Tribunal erred in refusing to grant an adjournment – YES 

(i) The Tribunal made an error of law when applying the principles concerning the grant of adjournment when criminal proceedings are pending ([5]).

(ii) The appellant relied upon Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 (Zhao). In that case, the High Court held that proceedings brought by the Commissioner of the Australian Federal Police for the forfeiture of property held by Mr Jin as proceeds of crime should have been stayed, pending the finalisation of Mr Jin’s criminal trial ([11]).

(iii) The relevant principles in Zhao were extracted in Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 at [22] as follows ([13]):
  • where both civil and criminal proceedings are pending, a stay of the civil proceeding will be ordered where “the interests of justice require such an order”;
  • a court will not grant a stay of a civil proceeding merely because related charges have been brought against an accused and criminal proceedings are pending; 
  • to warrant a stay of the civil proceeding, “it must be apparent” that the accused “is at risk of prejudice in the conduct of his or her defence in the criminal trial” ([32]); and
  • the risk of prejudice must be real and, in considering what the interests of justice require, that risk is to be weighed against the prejudice that a stay of the civil proceedings would occasion. 
(iv) McCallum J, in McLachlan v Browne (No 9) [2019] NSWSC 10 at [6], indicated that the starting point in an application to stay proceedings where criminal proceedings are on foot is the guidelines stated by Wootten J in McMahon v Gould (1982) 7 ACLR 202. The Appeal Panel in this case noted that these guidelines are “broadly consistent” with the principles in Zhao ([14]-[15]).

(v) The Tribunal has a broad power to adjourn proceedings under s 51 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). In exercising this power, the Tribunal is required to seek to give effect to its “guiding principle” in s 36, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings. This does not mean that a request for an adjournment must always be refused, in the interests of speed and efficiency. The “just resolution” of the real issues in the proceedings may require the grant of an adjournment ([16]).

(vi) Mr James had the onus of establishing that it was “just and convenient” that the landlord’s “ordinary rights should be interfered with” by the grant of an adjournment. However, that onus is to be understood in the context of the High Court’s comments in Zhao ([30]).

(vii) The Tribunal considered that Zhao was distinguishable because it “involved proceedings very much connected with the criminal proceedings”, whereas the matter before it arose “in a housing context, somewhat removed from the criminal matter, under very different legislation” ([18]).

(viii) The basis upon which the Tribunal distinguished Zhao was misconceived. The principles in Zhao do not depend upon establishing that the legislation under which a person is charged has any similarity to the legislation governing the civil proceedings in which a stay or an adjournment is sought. What is most significant is the similarity of the factual issues in the two proceedings and whether the accused should be placed in a position where he or she must decide whether to prejudice his or her criminal trial or his or her defence of the civil proceedings ([19]).

(ix) In this case, there was a commonality of issues in the criminal proceedings and the residential tenancy proceedings before the Tribunal. The criminal proceedings arose out of the incident which was the focus of the landlord’s application ([20]-[23]).

(x) The prospect of a certificate being issued under s 128 of the Evidence Act 1995 (NSW) would only provide Mr James with limited protection, and would not overcome the prejudice caused by not granting the adjournment ([25]-[26]).

(xi) In the Appeal Panel’s view, Mr James had put forward sufficient evidence for the Tribunal to conclude that there was a real danger of injustice to him if the residential tenancy proceedings were not stayed. The landlord filed no evidence of any prejudice it would suffer if a stay were granted ([31], [33]).

(xii) Accordingly, this ground of appeal was upheld. Since the orders on the landlord’s substantive application should not have been made before Mr James’s adjournment application had been lawfully determined, the termination and possession orders were set aside, and the proceedings remitted to the Tribunal ([34], [48]).

Whether there was no evidence for the Tribunal to find that the requirements of s 91(1) of the RT Act were satisfied – NO 

(xiii) In relation to the “no evidence” ground, the Appeal Panel accepted Mr James’s submission that police fact sheets contain allegations and that a fact sheet is not admissible evidence in criminal proceedings. However, it did not accept that a police fact sheet cannot be probative evidence in the context of Tribunal proceedings. Further, it noted that the police fact sheet was supported by additional probative evidence from which the Tribunal was entitled to infer that illicit drugs were found on the rented premises ([44]-[45]).

(xiv) Accordingly, this ground of appeal was dismissed ([47]). 
Digby v Challis Private Hotel Pty Ltd t/as Challis Lodge [2020] NSWCATAP 94
Consumer and Commercial Division - Consumer Claim
S Higgins, Senior Member; Dr J Lucy, Senior Member

In sum: The Appeal Panel granted an extension of time and leave to appeal from an interlocutory decision in the Consumer and Commercial Division (unpublished), being a decision on the papers to dismiss the appellant’s reinstatement application and refuse an extension of time for filing that application. The Appeal Panel discussed what is required of the Tribunal when considering an application for reinstatement, and when electing to determine a matter on the papers. 

Facts: The appellant, Ms Digby, applied to the Tribunal for refund of her security bond and compensation for damage to her belongings which occurred when she was evicted from a boarding house operated by the respondent ([9]). 

Ms Digby’s application was dismissed when she failed to appear at the hearing, pursuant to s 55(1)(c) of the NCAT Act. Ms Digby formally applied to have the proceedings reinstated six days after the period in which she was entitled to make that application. Before this, she had written to the Tribunal saying she had not received notice of the hearing ([1], [16]-[22]).

The Tribunal determined the matter on the papers, refusing to grant Ms Digby an extension of time to file her reinstatement application and dismissing the application ([2]).

Ms Digby sought leave to appeal from the Tribunal’s decision. Her Notice of Appeal raised the issue of whether her submissions and evidence in support of the reinstatement application had been considered by the Tribunal ([3]).

Ms Digby also applied for an extension of time to lodge the appeal ([4]).

Held (granting leave, allowing the appeal, and remitting the matter to a differently constituted Tribunal for reconsideration):

Extension of time for filing the appeal

(i) The discretion to grant an extension of time must be exercised judicially, having regard to the guiding principle in s 36 of the NCAT Act being “to facilitate the just, quick and cheap resolution of the real issues in the proceedings.” The Appeal Panel will only exercise this discretion if satisfied that to do otherwise would work an injustice upon the applicant. In making this assessment, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, the applicant’s prospects of success on the appeal, and the consequences for the parties of the grant or refusal of the application ([44]-[46]).

(ii) Length of delay: Ms Digby mistakenly believed that she had 28 days to appeal, when in residential proceedings, the appeal period is 14 days. The appeal was filed two and a half weeks out of time. This delay was neither negligible nor excessive ([47]).

(iii) Reasons for delay: The main reason Ms Digby provided for the delay in lodging her appeal was that she had “compromised functioning”. A letter from Ms Digby’s doctor stated that she suffered from cardiovascular disease as well as early memory disturbance and concentration issues. This was a reasonable explanation for the delay ([48]-[49]).

(iv) Prejudice to other party: The respondent did not identify any prejudice it would suffer if an extension of time to appeal were to granted, aside from generally stating the matter had been “going on for some time with a history of delay after delay” ([50]).

(v) Whether the appellant had a reasonably arguable case: 
  • Ms Digby had a reasonably arguable case that the Tribunal denied her procedural fairness by (a) considering the matter on the papers without making an order to dispense with a hearing, (b) failing to granting an adjournment to allow Ms Digby to obtain legal advice and (c) failing to consider Ms Digby’s submissions when determining her application for an extension of time ([51]).
  • The Tribunal did not make an order dispensing with a hearing before determining the extension of time application on the papers. There was no indication that the Tribunal was satisfied that “the issues for determination c[ould] be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal”. This was an error of law: CLD v Children’s Guardian [2017] NSWSC 936 at [17] ([52]-[53]). 
  • It was necessary, as a matter of procedural fairness, for the Tribunal to give Ms Digby more time to make submissions about the determination of the matter on the papers, after she stated that she wanted to seek legal advice in this regard. The refusal of a reasonable request for an adjournment may constitute a denial of procedural fairness: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611 [40]; Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; Conway v Brady [2018] NSWCATAP 51 at [13] ([54). 
  • A failure to consider a party’s submissions may also constitute a breach of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1092 [24] ([56]). 
  • It could be inferred from the Tribunal’s reasons that the Tribunal did not consider Ms Digby’s submission that she had not received notice of the hearing. Further, the Tribunal’s statement that “there [was] no medical evidence to substantiate [Ms Digby’s] non-attendance” was capable of indicating that it overlooked her medical evidence ([58]). 
  • The failure to consider the matters raised in Ms Digby’s application constituted a failure to consider substantial submissions in support of the application ([59]). 
  • The Tribunal did not appear to consider any of the key factors relevant to the determination of Ms Digby’s extension of time application, including the length of the delay, the reasons given for the delay and the extent of any prejudice suffered by the respondent: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]; Bartush v Ale [2017] NSWCATAP 161 at [24] ([60]). 
  • The merits of Ms Digby’s case weighed strongly in favour of granting an extension of time for the appeal ([61]). 
(vi) Taking into account all these factors, the Appeal Panel considered that the appellant should be granted an extension of time to file her Notice of Appeal ([62]-[63]). 

Leave to appeal from an interlocutory decision

(vii) Leave to appeal from an interlocutory decision should only be granted where there are substantial reasons to allow an appellate review. Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave: Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35] ([66]).

(viii) This interlocutory decision effectively determined the rights of the parties, and the Appeal Panel considered that there were substantial reasons to allow an appellate review based on Ms Digby’s circumstances ([67]). 

Determination of the appeal

(ix) The Tribunal made an error of law when determining Ms Digby’s application for an extension of time. For the reasons given above, it denied Ms Digby procedural fairness by failing to respond to substantial, clearly-articulated arguments made by Ms Digby in her reinstatement application which were relevant to the extension of time issue ([68]).

(x) Accordingly, the Appeal Panel decided to allow the appeal and remitted the matter to be determined by a differently constituted Tribunal, according to law ([68]-[69]). 
Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99
Consumer and Commercial Division - Home Building
Armstrong J, President; M Harrowell, Principal Member

In sum: The Appeal Panel allowed an appeal from a decision in the Consumer and Commercial Division (unpublished) on the basis that the appellants were denied procedural fairness at first instance when the Member did not invite or allow them to cross-examine the respondent. However, it was not a denial of procedural fairness for the Tribunal to refuse to allow the appellants to examine their own expert witness at the hearing. 

Facts: Mr and Mrs Jannis (the appellants) and Ant-Hassa Pty Ltd (Ant-Hassa) had a verbal agreement for Ant-Hassa to construct a driveway at their residential property in Dural. It was agreed that the driveway would be constructed in two stages. There was significant dispute at first instance and on appeal as to what else the parties agreed, particularly in relation to the texture and durability of the driveway. The appellants complained that the first stage of the driveway was not properly constructed, and brought a claim in the Tribunal seeking compensation ([1]).

The Tribunal considered the application as effectively alleging breaches of the Home Building Act 1989 (NSW) (HB Act) and of certain consumer guarantees under the Australian Consumer Law (ACL). The Tribunal dismissed the appellants’ application, finding that (a) any defects in the driveway were not major defects, and so the claim had not been lodged within the two year time limit under the HB Act, and (b) it was not satisfied there had been a breach of ss 60 or 61 of the ACL ([2]-[5]). 

The appellants appealed to the Appeal Panel. They submitted that the Tribunal had erred by (a) not allowing their expert witness to give oral evidence at the hearing, and (b) not allowing them to cross-examine Ant-Hassa’s director, Mr Hassarati (who appeared for Ant-Hassa in the Tribunal and appeal hearings) ([5], [12], [15]-[16], [20], [24]). 

Held (allowing the appeal and remitting the matter to a differently constituted Tribunal):

Whether it was a breach of procedural fairness not to allow the appellants’ expert to give oral evidence – NO

(i) Where parties have been directed to provide expert evidence in written form, denying a party the opportunity to examine their own expert witness will not, as a matter of course, constitute a denial of procedural fairness ([21]).

(ii) If the appellants’ expert witness had been allowed to give additional oral expert evidence at the hearing, beyond what was already contained in the written report, there would have been a manifest unfairness to the respondent, who would not have had an opportunity to properly consider that expert evidence and, if necessary, to adduce further evidence in reply: Amos v PPT Investments Pty Ltd [2019] NSWCATAP 226 at [30] ([21]).

(iii) In this case, as the expert’s evidence was not challenged by the respondent and he was not cross-examined, it was hard to see how the appellants were denied procedural fairness or a reasonable opportunity to be heard on this basis ([22]). 

Whether it was a breach of procedural fairness not to allow the appellants to cross-examine Mr Hassarati – YES 

(iv) It is well-established that a failure by the Tribunal to allow a party an opportunity to cross-examine another party’s witness may, in some situations, constitute a denial of procedural fairness ([29]).

(v) Further, where a party is unrepresented, a failure by the Tribunal to explain its procedures, if requested to do so, may also constitute a denial of procedural fairness, as well as a failure to comply with its obligations under s 38(5) of the NCAT Act. This principle has, in some instances, led Appeal Panels in this Tribunal to decide that a failure to inform an unrepresented party that they had a right to cross-examine the other party’s witnesses was an error of law ([30]).

(vi) However, cross-examination is not an essential element of an oral hearing, nor is there a rigid rule that fairness always requires cross-examination to be permitted in administrative hearings ([31]).

(vii) In comparison to legislation establishing other state civil and administrative tribunals, the NCAT Act does not expressly provide for a general right of the parties to cross-examine or examine witnesses. Rather, the Tribunal can determine its own procedure, and may inquire into and inform itself on any matter in such a manner as it sees fit, subject to the rules of natural justice ([32]).

(viii) It is wholly within the power of the Tribunal to dispense with cross-examination if it thinks fit, provided it conforms to the rules of procedural fairness: Cheung v Yang [2013] NSWSC 1694 at [60] ([32]).

(ix) In this case, although the Tribunal did advise both parties at the outset of the hearing that they would have an opportunity to “ask questions about the evidence” and “test the evidence” they heard, it did not specifically invite the appellants to ask questions following Mr Hassarati’s evidence, and appeared to refuse them permission to do so ([33]).

(x) The Tribunal failed to afford the appellants procedural fairness in circumstances where (a) determining what was agreed by the parties in respect of the work to be performed was crucial to determining the appellants’ claim, and (b) Mr Hassarati was given an opportunity to cross-examine each of the appellants but the appellants were not permitted to cross-examine Mr Hassarati about the issues in dispute ([34]-[41]).

(xi) The Tribunal’s decision was set aside on this basis, and it was unnecessary to deal with the other grounds of appeal ([42]-[43]).
Graham O’Keefe v Integral Corporate Property Pty Ltd [2020] NSWCATAP 76
Consumer and Commercial Division - Tenancy
Dr R Dubler SC, Senior Member; D Charles, Senior Member

In sum: The Appeal Panel dismissed an appeal from a decision in the Consumer and Commercial Division (unpublished). In doing so, it helpfully set out the principles governing the distinction between errors of fact and errors of law. 

Facts: In January 2020, the Tribunal ordered that the appellant’s residential tenancy agreement be terminated immediately and that possession be given to the respondent ([1]-[2]).

The appellant sought to overturn these orders on the basis that the Tribunal was wrong to find there existed a residential tenancy agreement governed by the RT Act, and hence the Tribunal had no jurisdiction to make the orders it did ([3], [10]).

Alternatively, the appellant contended that as he had been in possession of the premises in question for over 20 years the Tribunal did not have power to make the orders it made by virtue of s 85(4) of the RT Act ([4]). 

Held (dismissing the appeal):

(i) It was not an error of law for the Tribunal to conclude that an implied residential tenancy agreement existed between the appellant and respondent ([40]-[46]).

(ii) The appellant’s alternative argument pursuant to s 85(4) of the RT Act could not be raised on appeal in circumstances where it had not been argued in the Tribunal below: Suttor v Gundowda Pty Ltd [1950] HCA 35 at [9]; Coulton v Holcombe [1986] 162 CLR 1 at [7] ([54]-[58]).

(iii) The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 set out a non-exhaustive list of errors of law ([12]).

(iv) The Tribunal will not have given adequate attention to a relevant consideration where it merely makes a formulaic reference. Instead what is required is a proper, genuine and realistic consideration of the relevant consideration: Director-General, Department of Finance and Services v Porter [2014] NSWCATAP 6 at [28] ([14]).

(v) An alleged failure to give “sufficient weight” to evidence does not identify a question of law: AHB v HSW Trustee and Guardian [2017] NSWCATAP 79; House v R (1936) 55 CLR 499. The correct approach is to set aside administrative decisions where the weight given to a factor is considered “manifestly unreasonable”, or where a finding or inference is made in the absence of supporting evidence: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 at [70]-[75] ([15]).

(vi) The Appeal Panel in Rogers v Vinoly [2016] NSWCATAP 2 at [12] referred to the following general propositions in relation to the distinction between errors of fact and law, which were affirmed by the High Court in Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 395 ([16]-[17]):
  • The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law: Jedko Game Co Pty Ltd v Collector or Customs (NSW) (1987) 12 ALD 491 (Jedko); Brutus v Cozens [1973] AC 854.
  • The ordinary meaning of a word or its non-legal technical meaning is a question of fact: Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 (Life Insurance Co) at 78; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner or Taxation (1956) 94 CLR 509 at 512; Neal v Department or Transport (1980) 3 ALD 97 at 107-108; Jedko. 
  • The meaning of a technical legal term is a question of law: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Lombardo v Federal Commissioner or Taxation (1979) 40 FLR 208 at 215. 
  • The effect or construction of a term whose meaning or interpretation is established is a question of law: Life Insurance Co at 79 
  • The question whether facts fully found fall within a statutory provision properly construed is generally a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 at 277
  • However, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288. 
(ii) When the statute is understood in its plain ordinary meaning, a question of law will arise if the facts found must necessarily have come within the statutory description, but only a question of fact will arise if the facts found are capable of coming within or outside of the statutory description: Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 16; Commissioner of Taxation v Crown Insurance Services Limited (2012) 207 FCR 247 at [39] ([17]). 
Jayasooriah v Wisdom Properties Group Pty Ltd [2020] NSWCATAP 81
Consumer and Commercial Division - Home Building
K Rosser, Principal Member; D Golstein, Senior Member

In sum: The Appeal Panel allowed an appeal from a decision of Consumer Commercial Division (unpublished). In doing so, it found that the Tribunal (a) was functus officio on one part of the appellant’s application, which was the subject of consent orders made in an earlier directions hearing, and (b) failed to determine the other part of the appellant’s application, amounting to a failure to exercise its jurisdiction under the HB Act.

Facts: The appellant and respondent were parties to a home building contract. The appellant commenced proceedings in the Tribunal seeking orders relating to alleged defective work, delay and overcharging by the respondent ([4]). At a directions hearing in July 2019 (the July directions hearing), the Tribunal made a number of consent orders, including some requiring the respondent to complete and rectify defective building works. The Tribunal also granted leave to the appellant to amend his application to claim liquidated damages and costs associated with relocating a power pole that was not installed in accordance with a verbal agreement (the additional claims). There was no appeal against these orders ([5]). 

The next Tribunal hearing was held in September 2019 ([8]-[9]). Following that hearing, the Tribunal published a decision dismissing the whole of the appellant’s application on the basis that ([12]-[15]):
  • the appellant’s application was based on breach of a statutory warranty in the HB Act;
  • the appellant’s defect claims were not for major defects, and were brought outside of the two year time limit under the HB Act, such that the Tribunal did not have jurisdiction to determine them; and
  • the remedy sought for the defective work had already been provided in the orders made at the July direction hearing. 
  • The appellant filed his Notice of Appeal 14 days late, requiring an extension of time ([1]). 
Held (allowing the appeal, setting aside the decision below, remitting part of the proceedings to a differently constituted Tribunal without further evidence):

Whether the Tribunal was functus officio on the subject matter of previous consent orders – YES 

(i) At the July directions hearing, when the Tribunal made consent orders pursuant to s 48O(1)(c) of the HB Act, it determined the part of the appellant’s application relating to defective work ([35]).

(ii) Neither the HB Act nor the NCAT Act allows the Tribunal to revisit a determination once made in these circumstances: see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [7]-[8] ([37]).

(iii) After the orders at the July directions hearing were made, the Tribunal was functus officio as to the subject matter of the consent orders, subject to the exceptions in s 63 of the NCAT Act (which allows for the correction of errors in decisions), and cl 8 of Sch 4 to the NCAT Act (which applies in circumstances where an order is not complied with and proceedings are renewed) ([38]).

(iv) The Tribunal did not have the power to reconsider whether the proceedings, to the extent they related to the work the subject of the consent orders, were brought within the time permitted by the HB Act. Insofar as it did, it erred in law by purporting to revisit matters which had already been determined ([40]). 

Whether the Tribunal failed to exercise jurisdiction by failing to determine parts of the amended application – YES 

(v) The Tribunal Member’s statement that the application was “clearly made on the basis of a … statutory warranty” indicated that it had overlooked the additional claims in the appellant’s application that were based on an alleged verbal agreement ([14], [41]-[42]).

(vi) It is an error of law for a Tribunal Member not to deal with an issue that was before him or her for determination. The Appeal Panel cited Yong v Antworks Pty Ltd [2016] NSWCATAP 14, where another Appeal Panel set out the authorities supporting this proposition ([43]):

31. In Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 at 186 Handley JA stated:

‘The duty of a judicial officer to hear and determine a claim made in judicial proceedings conducted before that officer is also an incident of the judicial process. Since breaches of the duty to give proper reasons and to observe procedural fairness involved errors of law, there seems every reason to hold that a breach of the duty to hear and determine a claim made in judicial proceedings also gives rise to such an error.

32. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Gaudron J in context of the Migration Act 1958 (Cth) discussed a constructive failure to exercise jurisdiction stating:

‘It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act.’

33. In Fox v Australian Industrial Relations Commission [2007] FCAFC 150 Marshall and Tracey JJ stated at paragraph 38:

‘In the present case the complaint is not that the full bench ignored the evidence but rather that it did not deal with an important ground raised by Mr Fox. This case is more akin to one where there is a failure by a Tribunal to deal with necessary issues. Such a failure constitutes a jurisdictional error.’

34. In Khan v Kang (supra) the Appeal Panel found that the Tribunal had made an error of law by failing to consider a claim made by Mr Khan. The Appeal Panel observed at [28] as follows:

‘It is possible to characterise what occurred either as a failure to give reasons for the Tribunal's decision or a failure to exercise the jurisdiction conferred on the Tribunal and invoked by the appellant in relation to this claim in respect of excess timber - see Waterways Authority v Fitzgibbon [2005] HCA 57 at [129]-[130] and Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [42]. Whichever way it should be characterised, the Tribunal's failure to consider such a claim at all in its Reasons for Decision amounted to an error of law by the Tribunal below’

(vii) The Tribunal Member erred at law by not dealing with the appellant’s additional claims. Accordingly, the additional claims were remitted to the Tribunal, differently constituted, for determination ([44]-[47]). 

Extension of time

(viii) An extension of time was granted, as the length of delay was minor, occurring over the Christmas-New Year period, the appellant’s explanation for the delay was adequate, the appellant had high prospects of success, and no real prejudice to the respondent was identified ([29]-[30], [52]). 
Fraser v SafeWork NSW [2020] NSWCATAP 92
Administrative and Equal Opportunity Division
Armstrong J, President; L Pearson, Principal Member

In sum: The Appeal Panel allowed an appeal from a decision of the Administrative and Equal Opportunity Division of NCAT. The Appeal Panel held that s 271 of the Workplace Health and Safety Act 2011 (NSW) (the WHS Act), together with cl 6(1) in the Table in s 14 of the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act), does not create a presumption against disclosure of information under the GIPA Act. The Appeal Panel also questioned the weight given to cl 1(d) and (f) in the Table in s 14 in circumstances where the supply of information to a government agency is compulsory, as it is under s 155 of the WHS Act. 

Facts: Mr Fraser made an application under the GIPA Act to SafeWork NSW (SafeWork) requesting access to, amongst other things, a list of questions contained in a Notice issued to Blacktown City Council (BCC) under s 155 of the WHS Act, and BCC’s replies to those questions (the BCC answers). The questions were part of an investigation by SafeWork into a fatal accident involving a garbage truck operated by BCC ([2]-[3]).

BCC advised SafeWork that it did not consent to the release of the information. SafeWork provided some information to Mr Fraser, but redacted other information ([3]).

Mr Fraser sought internal review of the refusal to provide access to the BCC answers, which resulted in the decision being affirmed. Mr Fraser also sought review of the decision by the Information Commissioner, who concluded that the decision was justified and made no recommendation ([4]). 

Mr Fraser then sought external review in NCAT, which was also unsuccessful. In sum, NCAT held that cl 6(1) of the Table in s 14 of the GIPA Act should be given significant weight; that there was a need to preserve the willing and confident supply of information to SafeWork in the course of exercising its investigative functions; and that its ability to obtain similar information from other sources in the future would be impaired by disclosure of the BCC answers. Mr Fraser appealed to the Appeal Panel ([9]). 

Held (allowing the appeal, setting aside the decision below, and remitting the matter for reconsideration):

(i) None of the specific points Mr Fraser raised demonstrated any error on the part of the Tribunal below, let alone an error on a question of law ([30]).

(ii) However, although not clearly expressed, Mr Fraser appeared to put forward another argument in his Notice of Appeal – that access to information said to be in breach of another Act should only be restricted if the Tribunal decides that to do so would not undermine the principles in the GIPA Act. This raised the question as to whether the Tribunal properly engaged in the task of balancing, as required by s 13 of the GIPA Act, the public interests in favour of and against disclosure ([30]).

(iii) If the Tribunal failed to engage properly with the issues before it, that would be an error of law: Jayasooriah v Wisdom Properties Group Pty Ltd [2020] NSWCATAP 81 at [43] ([30]).

(iv) The Tribunal was correct in stating that s 271 of the WHS Act provides a “comprehensive protection” against disclosing information obtained in exercising powers and functions under the WHS Act unless one or more of the identified exceptions in s 271(3) of the WHS Act applies ([31]-[32]).

(v) However, it was not clear how the Tribunal reached the conclusion that s 271(3)(e) would not be available as an exception to this prohibition on disclosure ([33]).

(vi) The Tribunal referred briefly to the public interest considerations against disclosure in cl 1(d) and (f) in the Table in s 14 of the GIPA Act (regarding prejudice to the supply of information to an agency, and prejudice to the exercise of an agency’s functions). However, the conclusion that SafeWork’s ability to obtain information in future would be impaired by disclosure of the BCC answers, in the context of SafeWork’s power to compulsorily require disclosure of information under s 155 of the WHS Act, was not explained ([33]).

(vii) It was not clear whether the Tribunal regarded cl 6(1) in the Table in s 14 of the GIPA Act, together with s 271 of the WHS Act, as effectively applying a conclusive presumption of an overriding public interest against disclosure. Such an approach would be an error of law. Section 11 of the GIPA Act provides that the GIPA Act overrides a provision of any other Act that prohibits disclosure of information, whether or not the prohibition is subject to specified exceptions, other than a provision of a law listed in Sch 1 to the GIPA Act as an overriding secrecy law. Clause 1 of Sch 1 identifies the relevant overriding secrecy laws, and s 271 of the WHS is not included in that list ([34]).

(viii) The Appeal Panel was not persuaded that the Tribunal properly applied the relevant provisions of the WHS Act and the GIPA Act in reaching its conclusion. A failure to exercise jurisdiction conferred is an error of law ([37]).

(ix) The appeal was allowed, and the proceeding remitted to the Tribunal to determine whether the public interests against disclosure in the Table in s 14 of the GIPA Act outweigh the public interests in favour of disclosure so that disclosure of the documents is authorised under the GIPA Act and thus under s 271(3)(e) of the WHS Act ([37]). 
Keyword Summaries
James v NSW Land and Housing Corporation [2020] NSWCATAP 64
Consumer and Commercial Division - Social Housing
Decision of: S Thode, Senior Member; Dr J Lucy, Senior Member
Catchwords: APPEAL - Use of leased premises for unlawful purpose – Whether Tribunal erred in failing to stay the proceedings until related criminal proceedings had been determined
Issa v K & K Quality Constructions Pty Ltd [2020] NSWCATAP 74
Consumer and Commercial Division - Home Building
Decision of: T Simon, Principal Member; Dr J Lucy, Senior Member
Catchwords: APPEAL – Home building; Where no written contract between the parties; Where builder did preliminary work; Where Tribunal awarded builder money on quantum meruit basis; Whether s 94 of the Home Building Act 1989 applied in circumstances that there was no written contract; Where Tribunal did not consider whether it would be unconscionable for the homeowner to retain the benefit of the preliminary work without payment
Miriani v Jin [2020] NSWCATAP 75
Consumer and Commercial Division - Tenancy
Decision of: A Suthers, Principal Member; J Lonsdale, Senior Member
Catchwords: APPEAL – dismissal of proceedings for non-appearance – whether reasonable explanation for failure to appear
Graham O’Keefe v Integral Corporate Property Pty Ltd [2020] NSWCATAP 76
Consumer and Commercial Division - Tenancy
Decision of: Dr R Dubler SC, Senior Member; D Charles, Senior Member
Catchwords: APPEAL – meaning of error of law – whether permitted to raise new issue on appeal
RESIDENTIAL TENANCY – whether relationship between the parties comes within the definition of residential tenancy under the Residential Tenancies Act 2010 (NSW)
Baserite Constructions Pty Ltd v Tanios [2020] NSWCATAP 77
Consumer and Commercial Division - Home Building
Decision of: G K Burton SC, Senior Member; M R Gracie, Senior Member
Catchwords: HOME BUILDING - limitation period - major defects - separate agreement as basis of work order - procedural fairness - material not before Tribunal on no appearance
DVG v Western Sydney Local Health District [2020] NSWCATAP 78
Administrative and Equal Opportunity Division
Decision of: Armstrong J, President; Hennessy ADCJ, Deputy President
Catchwords: APPEALS – where Tribunal summarily dismissed applications for administrative review of conduct under the Health Records and Information Privacy Act 2002 (NSW) and the Privacy and Personal Information Protection Act 1998 (NSW); whether any prospects of success on appeal – whether time for lodging the appeal should be extended – whether leave should be given to appeal from an interlocutory decision
Bladen v Mifsud [2020] NSWCATAP 79
Consumer and Commercial Division - Tenancy
Decision of: Armstrong J, President; A Suthers, Principal Member
Catchwords: APPEAL – appeal against decision to refuse set aside application – whether breach of procedural fairness - no error of law – leave to appeal – no substantial miscarriage of justice
The Owners – Strata Plan No 54026 v UniLodge Australia Pty Ltd (No 2) [2020] NSWCATAP 80
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Deputy President 
Catchwords: COSTS – dismissal of application for leave to appeal an interlocutory decision – s 60(2) of the Civil and Administrative Tribunal Act 2013 – whether special circumstances are established
Jayasooriah v Wisdom Properties Group Pty Ltd [2020] NSWCATAP 81
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; D Goldstein, Senior Member
Catchwords: APPEAL – Building and Construction –Functus officio – Failure to exercise jurisdiction
Wilson v NSW Land and Housing Corporation [2020] NSWCATAP 82
Consumer and Commercial Division - Social Housing
Decision of: L Pearson, Principal Member; Dr J Lucy, Senior Member
Catchwords: APPEALS – Residential tenancies – Whether Tribunal erred in removing occupant of premises as a party – Whether Tribunal erred in failing to award tenant any compensation where lease terminated by operation of law – Whether Tribunal erred in failing to award additional compensation to that awarded in earlier proceedings – Whether leave should be granted to appeal on grounds which do not raise questions of law
Nicholls v Fortmann (No 2) [2020] NSWCATAP 84
Consumer and Commercial Division - Commercial
Decision of: G Curtin SC, Senior Member; G Sarginson, Senior Member
Catchwords: COSTS – costs on appeal – special circumstances – dependent on own facts
Hacienda Caravan Park Pty Ltd v Mountfort [2020] NSWCATAP 85
Consumer and Commercial Division - Residential Communities
Decision of: P Durack SC, Senior Member; D Robertson, Senior Member 
Catchwords: CIVIL PROCEDURE – NSW Civil and Administrative Tribunal – service in another state of applications filed in the Tribunal - Service and Execution of Process Act 1992 (Cth) – whether the requirements of the Act were complied with – whether orders made in the absence of the appellant should be set aside
Longbottom v Boughton (No 2) [2020] NSWCATAP 86
Consumer and Commercial Division - Home Building
Decision of: Dr R Dubler, Senior Member; D Charles, Senior Member
Catchwords: COSTS – whether the amount in dispute exceeds $30,000 – effect of pre-trial offer of settlement on costs of appeal – whether to award costs in a fixed sum
Rockwall Homes Pty Ltd Ayoub [2020] NSWCATAP 87
Consumer and Commercial Division - Consumer Claim
Decision of: K Ransome, Senior Member; Dr J Lucy, Senior Member
Catchwords: APPEAL – costs - exercise of discretion to award costs under r 38(2) of the Civil and Administrative Tribunal Rules 2014 where proceedings are withdrawn – failure to prosecute appeal
Choy v Rugsat [2020] NSWCATAP 88
Consumer and Commercial Division - Tenancy
Decision of: A P Coleman SC, Senior Member; L Wilson, Senior Member
Catchwords: APPEAL – Extension of time – no adequate explanation for delay
RESIDENTIAL TENANCIES – Ex parte hearing – Denial procedural fairness – No opportunity to be heard
The Owners – Strata Plan No 70871 v Turek (No 2) [2020] NSWCATAP 89
Consumer and Commercial Division - Strata
Decision of: F Marks, Principal Member; M Gracie, Senior Member
Catchwords: Appeal proceedings – costs-grounds of appeal inadequately expressed - no merit in the appeal - held defects in Notice of Appeal, lack of merit in certain appeal arguments together with disingenuous conduct of appellant’s solicitor constituted special circumstances-costs order made.
Anthony Owen Brett t/as Love Revolution Music and Film Productions v Australian Trade Exhibitions Pty Ltd [2020] NSWCATAP 90
Consumer and Commercial Division - Consumer Claim
Decision of: S Westgarth, Deputy President; K Rosser, Principal Member
Catchwords: CONSUMER CLAIM – due care and skill
D Constructions Pty Ltd v Walsh [2020] NSWCATAP 91
Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; M Gracie, Senior Member
Catchwords: COSTS – costs on appeal – appeal withdrawn by appellant without a hearing on the merits – principles applicable to costs where no hearing on the merits – withdrawal effectively a surrender
Fraser v SafeWork NSW [2020] NSWCATAP 92
Administrative and Equal Opportunity Division
Decision of: Armstrong J, President; L Pearson, Principal Member
Catchwords: APPEAL – access to information – responses to questions in investigation – secrecy provisions – whether disclosure could reasonably be expected to constitute contravention of any other Act – balancing of public interests against disclosure and public interests in favour of disclosure – whether failure to exercise jurisdiction - whether administrative review task properly undertaken
York v Ken Ross Repairs Mudgee Pty Ltd [2020] NSWCATAP 93
Consumer and Commercial Division - Motor Vehicles
Decision of: A Suthers, Principal Member; G Curtin SC, Senior Member 
Catchwords: CIVIL PROCEDURE – hearing – failure to give reasons – failure to engage with the appellant’s case – error in finding evidence did not satisfy onus of proof – error in making orders – denial of procedural fairness – conditions imposed on conduct of remitted hearing
Digby v Challis Private Hotel Pty Ltd t/as Challis Lodge [2020] NSWCATAP 94
Consumer and Commercial Division - Consumer Claim
Decision of: S Higgins, Senior Member; Dr J Lucy, Senior Member 
Catchwords: APPEAL – Application dismissed for failure to appear – Where reinstatement application lodged six days late –Whether Appeal Panel should extend time for lodging the appeal – Whether Tribunal denied the appellant procedural fairness by failing to consider appellant’s submissions - Whether leave should be granted to appeal from an interlocutory decision
The Owners – Strata Plan No 55773 v Roden; Spiers v The Owners – Strata Plan No 77953 [2020] NSWCATAP 95
Consumer and Commercial Division - Strata
Decision of: Armstrong J, President; M Harrowell, Deputy President; L Wilson, Senior Member
Catchwords: LAND LAW – Strata title – Strata Schemes Management Act 2015, ss 136, 139,150 – By-laws – Power to make by-laws – By-law not to be harsh, unconscionable or oppressive – Whether by-laws prohibiting the keeping of animals and/or regulating the number of animals that can be kept is harsh, unconscionable or oppressive
The Owners – Strata Plan No 58068 v Cooper [2020] NSWCATAP 96
Consumer and Commercial Division - Strata
Decision of: Armstrong J, President; M Harrowell, Deputy President
Catchwords: LAND LAW – Strata title - Strata Schemes Management Act 2015 ss 136, 139, 150 - By-laws – Power to make by-laws – By-law not to be harsh, unconscionable or oppressive – Whether by-law prohibiting the keeping of animals is harsh, unconscionable or oppressive – Proceedings for imposition of civil penalty – Jurisdiction of Appeal Panel in appeal against civil penalty decision
ZOL v ZOM [2020] NSWCATAP 97
Guardianship Division
Decision of: A Britton, Principal Member; A Boxall, Senior Member; M Bolt, General Member 
Catchwords: APPEAL — whether factual finding made in absence of evidence
APPEAL — whether Tribunal failed to give real and genuine consideration to orders sought by applicant
APPEAL — principles applying to granting leave to appeal from decision made by Guardianship Division of the NSW Civil and Administrative Tribunal
D’Annunzio v North Sydney Council (No 2) [2020] NSWCATAP 98
Consumer and Commercial Division - Commercial
Decision of: L Pearson, Principal Member; Dr J Lucy, Senior Member
Catchwords: COSTS - appeal dismissed – whether order for costs should be made
Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99
Consumer and Commercial Division - Home Building
Decision of: Armstrong J, President; M Harrowell, Principal Member
Catchwords: ADMINISTRATIVE LAW – breach of procedural fairness - failure to allow party opportunity to cross-examine - error of law
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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