NCAT Appeal Panel Decisions Digest Issue 4 of 2022 |
The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue features summaries of the following Appeal Panel decisions handed down in April 2022:
Davis v Minister for Health [2022] NSWCATAP 115: The Tribunal was found to have jurisdiction to administratively review “directions” given by the Minister for Health in a Public Health Order, pursuant to s 7(7)(b) Public Health Act 2010 (NSW). Australian Press Council Inc v Southey [2022] NSWCATAP 127: An appeal was dismissed on two bases. First, there was no appealable decision and second, neither the Tribunal nor Appeal Panel had the power to grant the declaratory relief which was sought.
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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Davis v Minister for Health [2022] NSWCATAP 115 Administrative and Equal Opportunity Division Armstrong J, President; A Britton, Deputy President
In sum: The appellant sought a review of cll 4 and 5 of the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) (PHO) which mandated the vaccination of all health workers (the impugned orders). The Appeal Panel held that the Tribunal has the power to administratively review directions made by the Minister for Health under the PHO, pursuant to s 7(7)(b) of the Public Health Act 2010 (NSW).
Facts: The appellant (Ms Davis) was an unvaccinated nurse who, consequent of the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) (PHO), could not continue her work as a nurse from 30 September 2021. Her employment was later terminated in December 2021. She commenced an appeal of an AEOD decision which summarily dismissed an application for administrative review, on the ground the Tribunal has no jurisdiction to administratively review directions made by the Minister for Health (the Minister) under s 7(7)(a) of the Public Health Act 2010 (NSW) (PHA). Whilst Ms Davis accepted a review was precluded under s 7(7)(a) PHA, she contended that the Tribunal erred by overlooking the meaning of s 7(7)(b) PHA. This provision enables a person to apply to NCAT for an administrative review of “any direction given” by an order of the Minister. Critical to the construction, was whether the vaccination mandate in the PHO was a “direction” given by Minister. This was rejected by the Minister who argued that a review of the impugned directions was effectively a review of the PHO itself.
Held (allowing the appeal against a summary dismissal):
(i) The Appeal Panel affirmed the conclusion of the Tribunal, that s 7(7)(a) of the PHA precluded a review of the Minister’s orders for want of jurisdiction. However, in construing the terms on s 7(7)(b), the Appeal Panel held that the use of the words ‘any direction’ “indicates that the provision should be read broadly.” The Minister’s proposed construction that only some directions were subject to review, could produce an “anomalous result” where peripheral clauses were subject to review, but substantive directions given by the Minister (such as those seen in cll 4 and 5) were excluded. Whilst cl 4 and 5 of the PHO, being the impugned directions mandating vaccination of healthcare workers, was “central” to the operation of the PHO, there were several “difficulties” with the contention that it fell outside the scope of administrative review under s 7(7)(b). The Appeal Panel reasoned that the Minister’s powers to “make orders” under the PHA were wide. Exercised within those broad powers, is the Minister’s ability to make “specific directions.” Those directions were intentionally captured in the language of s 7(7)(b). Consequently, the Tribunal had jurisdiction to administratively review the vaccination mandate of health workers in the PHO (at [62], [66], [69], [71], [77]).
(ii) The Minister argued that the impact of empowering the Tribunal to decide the merit of the impugned directions was bifold; it would engage in a “broad polycentric enquiry” unintended for the Tribunal and it could affect thousands of health care workers across NSW. Citing the indicia of a legislative decision (being directed at persons at large, established a rule of prospective application and has binding legal effect); it was submitted by the Minister that the directions made under cll 4 and 5 were of a “legislative character”, and thus precluded from administrative review. However, the Appeal Panel adopted the obiter of Bell P (as he was then) in the decision of Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299. It was held that the validity of the impugned orders “did not turn upon” being either legislative or administrative in character. The focus of the analysis must be on “whether enabling legislation provides for an application to be made” in NCAT. Therefore, the Appeal Panel concluded that it was not necessary to determine the character of the impugned orders, as proper construction of s7(7)(b) PHA imbued the Tribunal with the jurisdiction to administratively review the directions of the Minister. The appeal was allowed and the decision under appeal set aside (at [78], [87],[88], [93]). |
Australian Press Council Inc v Southey [2022] NSWCATAP 127 Administrative and Equal Opportunity Division Dr R Dubler SC, Senior Member; Dr J Lucy, Senior Member
In sum: The Australian Press Council (APC), although successful in discrimination proceedings brought by Ms Southey, sought an appeal against a finding of the Tribunal. APC sought a declaration by the Appeal Panel that it was a “voluntary association.” The appeal was dismissed as neither the Tribunal nor the Appeal Panel have powers to make a declaration, and there was no utility in the appeal as it was on a moot point.
Facts: Ms Southey (the respondent) is a transgender woman who made a complaint to the Australian Press Council (APC) concerning an article written for news.com.au (a member of the APC). Ms Southey argued that the article had a discriminatory effect on her as a transgender person, as it “sensationalised” and “placed gratuitous emphasis” on the fact that an alleged assailant described in the article was transgender. APC considered and dismissed the complaint. Ms Southey subsequently made a complaint to the President of the Anti-Discrimination Board, indicating the APC handled the complaint in a way which discriminated against her in its provision of services (where the subject matter concerned transgender persons). The President referred the matter to the Tribunal. The proceedings in the Tribunal were dismissed on two grounds; it could not be proven on the balance of probabilities that Ms Southey’s complaint was determined in a discriminatory way against transgender persons generally or against Ms Southey’s individual status as a transgender person. Whilst agreeing with the substance of the decision, APC appealed on the ground that the Tribunal had not declared it to be a “voluntary association” (indicating it does not operate for profit) for the purpose of s 57 of the Anti-Discrimination Act 1977 (NSW). The Appeal Panel considered three key issues; was this an appealable decision, was there utility in the appeal and whether the Tribunal has the power to make a declaration?
Held (dismissing the appeal):
(i) The Appeal Panel held that it is “generally accepted” under the common law, that an appeal can be commenced from a judgment, but not the reasons of a Court’s decision. It held the factual finding was not an appealable decision on four grounds. First, even considering the “breadth” of the term “decision” in ss 29(1) and 30(1) of the Civil and Administrative Tribunal Act 2014 (NCAT Act), it was “unlikely” that every finding in the Tribunal’s written reasons gave rise to an appeal. Second, having further regard to the statute, the Appeal Panel held that the decision to name APC as a non-voluntary party could not be properly described as an interlocutory issue per s 4(1) NCAT Act and therefore could not be subject to appeal. Third, setting out reasons for a decision on “material questions of fact” could not be seen as a decision itself under s 62 NCAT Act. Finally, this was not determined to be an ancillary decision giving rise to a right of appeal under s 80(2)(b) NCAT Act “because it was not preliminary to or consequential on the decision determining proceedings.” It was considered “at most…part of the reasoning” of a final determination. The appeal was dismissed as “incompetent” as it did not challenge a “decision” (at [28], [31], [39], [40], [43] and [44]).
(ii) Irrespective of this, the Appeal Panel held that there was no utility in the appeal. As such, it would have either refused leave to appeal (if it were an interlocutory decision) or dismissed the appeal (if considered an ancillary or final decision). As the substance of the appeal centred on APC seeking a declaration that it was a voluntary organisation, the Appeal Panel held that it was “futile” and a “moot point” which should not be “entertained.” There was “no live controversy” between the parties and any finding regarding the voluntary status of APC would not change the ultimate outcome. Critically, it was held that neither the Tribunal nor the Appeal Panel possessed the requisite power to grant the declaratory relief sought by APC, pursuant to s 81 NCAT Act. As such, the appeal was dismissed as being “misconceived” and there was no utility in an appeal where the declaratory relief which was sought could not be granted (at [45], [47], [48] [52]). |
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ERA v NSW Trustee and Guardian [2022] NSWCATAP 100 Administrative and Equal Opportunity Division Decision of: D Robertson, Senior Member; Dr J Lucy, Senior Member Catchwords: APPEAL – Where Tribunal summarily dismissed appellant’s application on jurisdictional grounds - Whether leave should be granted to appeal interlocutory decision – Whether respondent had made reviewable decisions |
Mao v Li [2022] NSWCATAP 101 Consumer and Commercial Division – Commercial Decision of: The Hon D A Cowdroy AO QC, Principal Member; R C Titterton OAM, Senior Member Catchwords: APPEALS – where leave required – no question of principle |
BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103 Consumer and Commercial Division – Home Building Decision of: S Westgarth, Deputy President; G Sarginson, Senior Member Catchwords: BUILDING AND CONSTRUCTION-Home building-Limitation period-s 48K (8) Home Building Act 1989-Procedural fairness-Transfer of proceedings to a Court-Whether Tribunal under a duty to raise limitation issue |
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EJX v University of Newcastle [2022] NSWCATAP 105 Administrative and Equal Opportunity Division Decision of: R Dubler SC, Senior Member; D Robertson, Senior Member Catchwords: PROCEDURE – administrative review proceedings – applicant sought the issue to the respondent of a summons to produce documents– whether legitimate forensic purpose – whether summons appropriate when documents required to be produced by the respondent pursuant to statutory obligation |
Burrows v City West Housing Pty Ltd [2022] NSWCATAP 106 Consumer and Commercial Division - Social Housing Decision of: G Blake AM SC, Senior Member; J Kearney, Senior Member Catchwords: CIVIL PROCEDURE – Time to appeal – Extension of time for application – Refused – Whether reasonable prospects of success |
Galea v Yazbek [2022] NSWCATAP 107 Consumer and Commercial Division – Tenancy Decision of: G Blake AM SC, Senior Member; P H Molony, Senior Member Catchwords: APPEALS – application for extension of time in which to make internal appeal granted – original proceeding brought outside the time limit fixed by cl .8 of the Uncollected Goods Regulation 2020 and s 31B of the Uncollected Goods Act 1995 – appeal against decision under the Uncollected Goods Act 1995 are not residential proceedings for the purpose of r 25 of the Civil and Administrative Tribunal Rules 2104 – appeal allowed – Tribunal lacked jurisdiction to hear and determine receivers claim under s 31B of the Uncollected Goods Act 1995 as it was out of time – decision set aside |
Kennedy v Boustani-Nasr [2022] NSWCATAP 108 Consumer and Commercial Division – Tenancy Decision of: G Ellis SC, Senior Member; Dr J Lucy, Senior Member Catchwords: APPEAL – No error of law – No basis for grant of leave |
Van Brugge v Foresto [2022] NSWCATAP 109 Consumer and Commercial Division – Tenancy Decision of: G Blake AM SC, Senior Member; A Boxall, Senior Member Catchwords: BAILMENT — Remedies — Under statute — Uncollected Goods Act 1995 (NSW) CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Res judicata, Anschun estoppel and abuse of process COSTS – Whether there are special circumstances warranting an award of costs DAMAGES – General principles – Breach of tenant’s covenants – Where landlords have not yet incurred expense in remedying tenant’s defaults – Where tenant asserted no actual loss suffered by landlords – Whether damages properly awarded on ‘costs of cure’ basis rather than nominal damages LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) – Covenants by tenant – As to condition of premises, cleanliness and removal of rubbish on giving vacant possession – Breach of tenant’s covenant to leave premises in good condition, clean and remove rubbish Landlords have not yet incurred expense in remedying tenant’s defaults – Whether cost of remedying tenant’s default is the appropriate measure of damages |
NSW Education Standards Authority v Thomas [2022] NSWCATAP 110 Occupational Division Decision of: T Simon, Principal Member; Dr R Dubler SC, Senior Member Catchwords: APPEAL – administrative review – meaning of ‘misconduct’ in s 24(1)(e) of the Teacher Accreditation Act 2004 (NSW) – whether the Tribunal misconstrued the meaning of ‘misconduct’ – whether the Tribunal erred in determining that conduct alleged to be in breach of NSW Department of Education Code of Conduct could not constitute ‘misconduct’ – whether the Tribunal erred by determining that non-compliance with the Australian Professional Standards for Teachers approved under s 19(1) of the Education Standards Authority Act 2013 (NSW) could not constitute misconduct – whether the Tribunal erred in its discretion to find in the alternative that the respondent’s suspension was disproportionate and not sufficiently serious to warrant such suspension |
Harris v The Owners-Strata Plan No 34056 [2022] NSWCATAP 111 Consumer and Commercial Division – Strata and Community Schemes Decision of: G Sarginson, Senior Member; E Bishop, Senior Member Catchwords: LAND LAW - Strata schemes-Resolution passed at general meeting-Discretion to invalidate-Applicable principles |
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ZWA v ZWB [2022] NSWCATAP 113 Guardianship Division Decision of: J S Currie, Senior Member; J D’Arcy, Senior Member; S Taylor, Senior Member Catchwords: APPEALS – Civil and Administrative Tribunal (NSW) – appeal from Guardianship Division. GUARDIANSHIP- Appointment criteria for guardian –misapplication of statutory criteria for appointment- choice of guardian determined by “dispute resolution” process based on perceived family consensus. Errors of law: identifying wrong issue, asking wrong question, failure to take into account mandatory considerations. Appeal allowed. |
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Davis v Minister for Health [2022] NSWCATAP 115 Administrative and Equal Opportunity Division Decision of: Armstrong J, President; A Britton, Deputy President Catchwords: APPEALS – appeal from summary dismissal of administrative review application - interlocutory decision of Tribunal requiring leave to appeal – leave granted - appeal upheld ADMINISTRATIVE LAW - application for administrative (or merits) review of directions contained in a public health order - directions given by Minister for Health under s 7 of Public Health Act 2010 (NSW) - whether s 7(7) of Public Health Act 2010 (NSW) permits an interested person to seek administrative review in NCAT of directions in a public health order – jurisdiction of NCAT ADMINISTRATIVE LAW – statutory construction – where extrinsic material of little assistance – whether statute should be read as if it contains additional words – whether directions in a public health order are of legislative or administrative character – whether characterisation of directions as legislative or administrative assists in ascertaining meaning of s 7(7) of Public Health Act 2010 (NSW) |
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Commissioner of Police, NSW Police Force v Robinson [2022] NSWCATAP 121 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; J Lucy, Senior Member Catchwords: PRACTICE AND PROCEDURE – medical examination requested by a party – whether condition of examinee that the medical examination be video recorded was unreasonable – whether the Tribunal ought to have stayed the proceedings |
Kher v Kuljit Singh Gosal trading as Gosal Conveyancing [2022] NSWCATAP 123 Consumer and Commercial Division – Consumer Claim Decision of: P Durack SC, Senior Member; E Bishop, Senior Member Catchwords: CONSUMER LAW — sale of residential land —purchasers’ claim against conveyancer in negligence and for misleading and deceptive conduct in relation to purchasers’ payment of adjusted land tax —purchasers’ claim against vendor for misleading and deceptive conduct — jurisdiction of Tribunal in relation to claim against the vendor — purchasers’ claims based upon a misunderstanding of relevant land tax laws. APPEALS — alleged errors of law — whether there was a failure to provide adequate reasons and a failure to find land tax clauses in a contract of sale and purchase of land null and void — whether there was a consumer claim against the second respondent which the Tribunal had jurisdiction to determine — new contentions on appeal which are misconceived — leave to appeal — whether decision fair and equitable — whether decision against the weight of the evidence — no question of principle or plain error of fact |
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Colman v Dang [2022] NSWCATAP 126 Consumer and Commercial Division – Tenancy Decision of: S Thode, Senior Member; A Boxall Senior Member Catchwords: RESIDENTIAL TENANCY – no issue of principle |
Australian Press Council Inc v Southey [2022] NSWCATAP 127 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; Dr J Lucy, Senior Member Catchwords: APPEAL – where appellant appealed from decision in its favour – whether appellant entitled to appeal from an adverse finding in the Tribunal’s reasons for decision – whether adverse finding was an internally appealable decision – meaning of “decision” in Civil and Administrative Tribunal Act 2013 (NSW) – whether Appeal Panel has power to make an order in the nature of a declaration - Whether appeal was moot |
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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. |
