| | | | | NCAT Appeal Panel Decisions Digest Issue 5 of 2020
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| | The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue features summaries of the following Appeal Panel decisions handed down in June 2020: - Meacham v Commissioner of Police [2020] NSWCATAP 107 - the Appeal Panel allowed an appeal from the Administrative and Equal Opportunity Division, relating to the refusal of a firearms licence. The Appeal Panel made a number of comments about what is required for adequate reasons, referring to the authorities set out in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231. The Appeal Panel also made comments about the applicable standard of proof in administrative review proceedings, regarding the use of s 104 of the Evidence Act 1995 (NSW) as a guide for the Tribunal.
- DRZ v Barnardos Australia (No 2) [2020] NSWCATAP 105 - the Appeal Panel, having previously allowed an appeal from the Administrative and Equal Opportunity Division relating to the cancellation of the appellant's authorisation as a carer under the Children and Young Person (Care and Protection) Regulation 2012 (NSW), decided to remit the matter to the Tribunal as the fairest, if not quickest or cheapest, way to resolve the proceedings (rather than determining the matter itself).
- Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 - the Appeal Panel allowed an appeal from the Administrative and Equal Opportunity Division relating to an application for access to government information which the Tribunal found was valid under the Government Information (Public Access) Act 2009 (NSW). The Appeal Panel held that an application which seeks multiple items of information, only some of which are described sufficiently for the information to be identified, is wholly invalid under s 41(1)(e). That is, the part of the application seeking items of information which are not sufficiently identifiable is not severable from the part seeking information which is identifiable.
- Chief Commissioner of State Revenue v McIntosh Bros Pty Limited (in liq) [2020] NSWCATAP 124 - the Appeal Panel dismissed an appeal from the Administrative and Equal Opportunity Division relating to the assessment of land tax under the Land Tax Management Act 1956 (NSW). The Appeal Panel held that, in applying the tests for land tax exemption under s 10AA(2) of that Act, the use of the subject land by multiple users can be aggregated to determine whether "primary production" is the "dominant use". Further, in considering whether the "commerciality" and "purpose of profit" tests are met, it is permissible to consider activities carried out across both the subject land and other (e.g. neighbouring) land.
- Bidgood v NSW Land and Housing Corporation [2020] NSWCATAP 101 - the Appeal Panel allowed an appeal from the Consumer and Commercial Division on the basis that the Tribunal had misapplied s 154D(3)(b) of the Residential Tenancies Act 2010 (NSW) by having regard to the severity of the appellant's offences leading to the application for termination under s 91, the “fault” of the appellant, and the appellant’s prior offences, “amidst” its consideration of whether termination would cause "undue hardship" to the appellant.
- Forbes v Wan [2020] NSWCATAP 129 - the Appeal Panel allowed an appeal from the Consumer and Commercial Division on the basis that the Tribunal applied an incorrect test for "unconscionable" conduct under s 21 of the Australian Consumer Law, and for whether the appellant had been "involved" in "misleading or deceptive conduct" under s 18 of the Australian Consumer Law.
- Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102 - the Appeal Panel allowed an appeal from the Consumer and Commercial Division, holding that it is permissible, in determining whether a "nuisance" has been caused under s 153 of the Strata Schemes Management Act 2015 (NSW), to consider the definitions of "offensive noise" under the Protection of the Environment Operations Act 1997 (NSW), and "intrusive noise" in non-regulatory guidelines produced by the Environmental Protection Agency.
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| Administrative and Equal Opportunity Division
Armstrong J, President; R L Hamilton SC, Senior Member
In sum: The Appeal Panel allowed an appeal from the Administrative and Equal Opportunity Division on the basis that the Tribunal below (a) failed to give adequate reasons for its decision; (b) made a key finding of fact unsupported by any evidence; and (c) failed to take into account matters relevant to whether granting the appellant a firearms licence would be contrary to the public interest.
Facts: Ms Meacham (the appellant) has held an ABH firearms licence since 1995. She was previously involved in the management of an indoor firing range (the Range), owned by her husband ([5]-[7]).
In 2013, the appellant’s firearms licence was revoked following an incident at the Range where an unlicensed person committed suicide. The appellant’s licence was reinstated after an internal review of the revocation decision ([9]-[11]).
In 2015, the appellant’s firearms licence was revoked again after a large number of firearms were stolen or went missing from the Range while the appellant said she and her husband were away on holiday ([14]).
In early 2018, the appellant applied to the Commissioner of Police (the respondent) for a new firearms licence, stating her genuine reasons to be “Sport/target shooting and Recreational hunting/vermin control”. The respondent refused the application, stating that approval would be against the public interest having regard to the incidents in 2013 and 2015. The appellant sought an internal review, and then administrative review in the Tribunal, both of which affirmed the respondent’s decision. She then appealed to the Appeal Panel ([1]-[2], [8]).
Held (allowing the appeal and remitting the matter to a differently constituted Tribunal):
Inadequate reasons; failure to make findings of fact on central controversies
(i) It is not unreasonable to suppose that s 62(3) of the NCAT Act provides “important guidance” as to what should be included in Tribunal reasons, even without a request under s 62(2): New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr) at [55] ([32], [36]).
(ii) While s 62(3) provides a “useful starting point” as to what is required, it “still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed”: Orr at [72] ([33]).
(iii) The Court of Appeal has highlighted the following principles which inform what is required for adequate reasons in the NCAT context: see Orr at [73]-[77]; Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2] ([33], [35]):
- While a detailed exposition of every element of the evidence and arguments is not necessary, a basic explanation of the fundamental reasons which led the Tribunal to its conclusion is required.
- It is not necessary to detail each factor found to be relevant or irrelevant, or to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference to what is found is appropriately clear, and the basis of the decision is made apparent.
- The reasons must indicate to the parties why the decision was made, and allow them to exercise any rights that may be available to them in respect of the decision (including any avenue of appeal).
- The reasons must provide an explanation connecting any findings of fact with the decision reached.
- It is not necessary to decide each factual issue in isolation from the others, and expressing conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.
- While not every submission or piece of evidence put forward by the parties must be referred to, “central controversies” put up for resolution by the parties must be dealt with, and the competing evidence relevant to those controversies analysed and resolved.
- In reviewing the adequacy of a decision maker’s reasons, an appellate court (and this Appeal Panel):
- should not read passages from the reasons for decision in isolation from others to which they may be related;
- must read the reasons fairly and as a whole;
- should not inspect the reasons with a fine tooth comb attuned to identifying error; and
- should have a degree of tolerance for looseness in the language of the Tribunal, unhappy phrasing of the Tribunal's thoughts, or verbal slips.
(iv) In this case, reviewing the Tribunal’s reasons as a whole gave rise to uncertainty as to whether any conclusion at all was reached in respect of several material issues, including ([30(1)], [35], [43]-[47]):
- Whether the appellant carried out an audit prior to her holiday in 2015, when the missing firearms were discovered;
- Whether the appellant cooperated with police following the discovery of the missing firearms; and
- Whether the appellant’s decision to transfer her firearms to the dealership, rather than to the police, was intended to “thwart” or “undermine” the legislative scheme.
(v) While it might be inferred that the Tribunal tacitly rejected the respondent’s submissions and evidence on these points, or did not consider them important to the decision, given the emphasis placed on them by the parties and the adverse implications for the appellant, that process of reasoning should have been made clear ([48]).
Lack of probative evidence for material finding of fact
(i) When the Tribunal makes findings on material questions of fact, it should refer to the evidence on which those findings are based ([49]).
(ii) Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably. It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62, 68; [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17] ([54]).
(iii) One material finding of fact – namely, that the firearms at the Range were “inappropriately stored” – was not supported by evidence before the Tribunal. This finding was clearly, if indirectly implied by the Tribunal’s statement that “one of the risks of inappropriately stored firearms” had “materialised” in the 2015 incident ([30(2)], [40], [58]).
(iv) Aside from the fact that firearms went missing, there was nothing in the evidence or the submissions before the Tribunal to indicate that the storage practices at the Range were in contravention of firearms regulations, or were otherwise “inappropriate” in a way attributable to the appellant ([60]).
Failure to take into account relevant matters
(v) The Tribunal failed to take into account relevant matters that were, collectively, significant to the question of whether issuing a licence to the appellant would be contrary to the public interest ([30(3)]).
(vi) A discretionary decision may be attacked for error of law where it can be demonstrated that the decision maker “failed to take into account, or gave insufficient weight to, some relevant matter”: House v King [1936] HCA 40; Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 ([62]).
(vii) In this case, the Tribunal did not properly consider the substantial evidence that the appellant was a conscientious firearms owner; had a good record of compliance in relation to her personal firearms licence; was no longer involved in the management of the Range; and had no complaints about her conduct since the 2013 and 2015 incidents ([63]-[65]).
(viii) Individually, these were not “mandatory” considerations, and it was a matter for the Tribunal to decide what weight to attribute to the evidence before it. However, taken cumulatively, the Tribunal’s failure to advert to these factors amounted to a failure to properly consider the connection between the 2013 and 2015 incidents and the effect on the public interest of granting the appellant a firearms licence ([65], [71]).
(ix) The Tribunal accurately stated that the firearms licensing regime is not intended to be punitive. However, the Tribunal failed to adequately consider whether there was an undue focus on punishment, rather than public safety, in the respondent’s decision to refuse the licence ([69]-[70]).
(x) It is erroneous to “quarantine contraventions” that relate to one type of licence when considering whether another type should be revoked or refused: Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at [25]; Hijazi v Commissioner of Police, NSW Police Force [2015] NSWCATAP 82 at [46]. The appellant’s alleged failings as a de facto manager were not irrelevant considerations with respect to reinstating her personal firearms licence ([68]).
(xi) However, it would have been appropriate for the Tribunal to acknowledge some delineation between the appellant’s conduct as a manager and the likelihood of her posing a risk to public safety through personally possessing a firearm ([71]).
Onus and standard of proof
(xii) Though not necessary for the disposition of the appeal, the Appeal Panel made a number of comments about onus and standard of proof in administrative review proceedings ([74]).
(xiii) In a matter involving review of administrative action, there is no onus of proof, and an applicant for review is not subject to any burden of proof, the Tribunal’s obligation being to determine whether the decision under review is the correct and preferable decision based on the available material ([75]).
(xiv) Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it ([83]).
(xv) Section 140 of the Evidence Act 1995 (NSW) and the “Briginshaw standard” (i.e. the principles articulated in Briginshaw v Briginshaw [1938] HCA 34) are acceptable guides for the Tribunal, notwithstanding that the rules of evidence do not apply, and ordinarily a party seeking administrative review is not required to establish its case on the balance of probabilities: Bronze Wing Ammunition v SafeWork NSW (No 2) [2016] NSWSC 988 at [76]-[77]; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127] ([81], [86]).
(xvi) As the appeal was allowed on other grounds, and the parties did not make submissions on this point, it was not necessary to decide whether the Tribunal erred by “adopting” the standard of proof in s 140 of the Evidence Act ([87]).
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| N Hennessy ADCJ, Deputy President; P Durack SC, Senior Member
In sum: The Appeal Panel previously allowed an appeal from a decision in the Administrative and Equal Opportunity Division regarding the appellant’s authorisation as a carer under the Children and Young Person (Care and Protection) Regulation 2012 (NSW) (CYP Regulation). The Appeal Panel decided to remit the matter to the Tribunal as the fairest, if not the quickest or cheapest, way to resolve the proceedings.
Facts: Barnardos Australia (Barnardos) removed a child from DRZ’s care and cancelled her authorisation as a carer under the CYP Regulation for reasons including that she had failed to tell Barnardos about a relationship she had with Mr AB. The Tribunal affirmed Barnardo’s decision but on a narrower basis, finding that ([1], [5]): - DRZ’s conduct in not reporting to Barnardos that she had learnt that Mr AB was a person of interest in a homicide investigation breached the reporting provisions of the Code of Conduct for Authorised Carers (the “failure to report conduct”).
- DRZ’s subsequent conduct in maintaining a relationship with Mr AB meant that she was no longer a suitable person to be an authorised carer (the “maintaining the relationship conduct”).
In its first decision, the Appeal Panel allowed the appeal in part, on the basis that the Tribunal misconstrued the reporting requirement in the Code of Conduct (decision available here). Because there was more than one basis for the Tribunal’s decision, the Appeal Panel then received further submissions as to what orders it should make ([2]).
Held (remitting the matter to the Tribunal):
(i) Because the Tribunal’s decision was based on a combination of two reasons, the reason found to be in error had to be disregarded. The task was then to determine whether the “maintaining the relationship” conduct, on its own, justified the Tribunal’s decision to cancel DRZ’s authorisation as an authorised carer ([4]).
(ii) The Appeal Panel decided to remit the matter to the Tribunal, rather than determine this issue itself, on the basis that ([20]):
- The Tribunal’s guiding principle is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”.
- While remittal might not be the quickest or cheapest option, in this case justice required that the body who heard the evidence and assessed DRZ’s credibility, made the final decision.
- In a case like this where DRZ’s motivations and candour were so crucial to an assessment of her suitability, it would be fairer for the Tribunal to re-determine the correctness of the cancellation decision.
(iii) The Appeal Panel directed that no further evidence should be admitted about the decision to cancel DRZ’s authorisation, but that if the Tribunal decided to set aside this decision, it should then determine whether to admit further evidence about whether the decision to remove the child from DRZ’s care should also be set aside ([20]-[21]). |
| Administrative and Equal Opportunity Division
Hennessy ADCJ, Deputy President; S Westgarth, Deputy President; A Suthers, Principal Member
In sum: The Appeal Panel allowed an appeal from a decision in the Administrative and Equal Opportunity Division regarding the construction of s 41(1)(e) of the Government Information (Public Access) Act 2009 (the GIPA Act). The Appeal Panel held that applications under the GIPA Act which seek multiple items of information, and do not provide sufficient detail to identify some of those items, are wholly invalid under s 41(1)(e), even if other items of information are sufficiently identified.
Facts: To be valid under the GIPA Act, s 41(1)(e) provides that an application for government information must “include such information as is reasonably necessary to enable the government information applied for to be identified” ([1]).
Mr Zonnevylle applied to the Department of Communities and Justice for access to numerous items of government information under the GIPA Act. The Department could not identify three items from the description Mr Zonnevylle provided. After some correspondence attempting to resolve this issue, the Department notified Mr Zonnevylle that his application was not a valid access application. He applied to the Tribunal for a review of that decision. The Tribunal found that the items of government information that could not be identified were a severable part of the application, and that only that part of the application was invalid ([2]).
The Department appealed that decision. The issue in the appeal was whether “the government information” in s 41(1)(e) means all the requested government information or a severable part of that information ([3]).
Held (allowing the appeal, setting aside and substituting orders made below):
(i) The plain meaning of the words “the government information” in s 41(1)(e) is all the government information applied for. Parliament did not identify a sub-set of the government information applied for which could be carved out from an application ([39], [42]).
(ii) The Tribunal below treated s 41(1)(e), in its statutory context, as presenting a “constructional choice” as to whether it should apply the ordinary meaning of the section or read the words “except for any severable part” into the section ([41]).
(iii) The purpose of s 41(1)(e) is to provide certainty as to when the “legally enforceable right” to be provided with access to government information arises ([43]).
(iv) Under s 51 of the GIPA Act, when an agency receives an application for access to government information, it must decide whether the application is a valid application. There is no power to treat an application as partly valid and partly invalid ([44]).
(v) If Parliament intended to make an application invalid, but only to the extent that the application does not include sufficient information, it would have used similar words to those in s 43(2) of the GIPA Act, which relates to applications for “excluded information” ([50]).
(vi) If Parliament intended to allow for an application which partly complied with the requirement to identify government information to be “split”, it would have used the same or similar words to those used in s 44(2), which relates to the transfer of applications, or parts thereof, to a different agency or agencies ([51]).
(vii) Section 58(2) provides that “[m]ore than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for”. However, this only applies to access applications that have already been accepted as valid ([52]-[54]).
(viii) The Tribunal below relied on the objects in s 3 of the GIPA Act, pursuant to s 33 of the Interpretation Act 1987 (NSW) – in particular, the object of “giving members of the public an enforceable right to access government information” However, pursuant to s 9 of the GIPA Act, the “legally enforceable right” to be provided with access to government information must be “in accordance with Part 4”, including s 41 ([55]-[57], [61]).
(ix) An objects clause “does not control clear statutory language or command a particular outcome”: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 78 (Cole JA) ([61]).
(x) In circumstances where there is a “constructional choice” in interpreting a provision, words can only be implied into the text of legislation in very limited circumstances, e.g. where the ordinary meaning of words does not give effect to the object and purpose of the legislation ([64]-[65]).
(xi) However, “any modified meaning must be consistent with the language in fact used by the legislature”: Taylor v Owners— Strata Plan No 1 1564[2014] HCA 9 at [39] ([66]).
(xii) In this case, the Appeal Panel concluded that the additional words which the Tribunal purported to “insert” into s 41(1)(e) were “too much at variance with the language in fact used by the legislature” ([67]).
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| Administrative and Equal Opportunity Division
Hennessy ADCJ, Deputy President; M Harrowell, Deputy President
In sum: The Appeal Panel dismissed an appeal by the Commissioner of State Revenue from a decision in the Administrative and Equal Opportunity Division, which set aside land three years of tax assessments for land owned by the respondent. In doing so, the Appeal Panel held that, in applying the tests for land tax exemption under s 10AA(2) of the Land Tax Management Act 1956 (NSW) (the LTM Act), the use of the subject land by multiple users can be aggregated to determine whether primary production is the “dominant use”, and the commercial nature of primary production activities carried out across both the subject land and other land can be considered.
Facts: The McIntosh family acquired a property known as “Denbigh” in 1868. Successive generations have lived and farmed on the property. The land was transferred to the company, McIntosh Bros, in 1931. The three descendants currently involved in living on and/or farming the property are Ron McIntosh, his son Richard and nephew Ian ([7]).
In 2009, the land was divided into large “superlots”. In 2014, two parcels of land were sold to Ian and to Richard’s sister, Angela ([8]).
From 2013-2016, the Chief Commissioner of State Revenue assessed the property still owned by McIntosh Bros as being liable for land tax totalling $2,984,056.00. Following an application for review of the Commissioner’s decision, the Tribunal set aside those assessments ([1]).
Over the relevant years, the company’s land was informally divided and used by various users (including Ron, Richard, Richard’s nephew James, Ian, and other local farmers) and for a number of cattle farming operations, amongst assorted other activities. There were no formal leases or licences ([11]).
The Tribunal held that:
- “each user was using parts of the land for a primary production use” and that “the various primary production uses [could] be aggregated or consolidated and weighed against the non-primary production uses” ([12]);
- the dominant use of the land for each of the three years in question was primary production ([13]); and
- the company was therefore exempt from land tax from 2013-2016 ([10]).
Two of the main issues on appeal concerned the Tribunal’s decisions:
- to aggregate the use of the subject land by multiple users for the purpose of determining if the land was used for primary production; and
- to aggregate the commercial activities of those users engaged in primary production both on and off the subject land.
Held (dismissing the appeal):
(i) Land that is not zoned as “rural land” is exempt from land tax if its “dominant use” is for primary production (s 10AA(2), (3)), and it meets both a “commerciality test” (s 10AA(2)(a)) and a “purpose of profit test” (s 10AA(2)(b)) ([2]-[4]).
(ii) The commerciality test is that the use of the land must have “a significant and substantial commercial purpose or character.” The purpose of profit test is that the use of the land must be “engaged in for the purpose of profit on a continuous or repetitive basis (whether or not a profit is actually made)” ([5]).
Whether the Tribunal erred in aggregating the users and their commercial activities in assessing whether the “dominant use”, “commerciality” and “purpose of profit” tests were met – NO
(iii) The Appeal Panel adopted the following propositions from Chief Commissioner of State Revenue v Metricon Qld Pty Ltd [2017] NSWCA 11 (Metricon) at [45]-[47], [58]:
- the word “use” has a core meaning independent of statutory context – it requires “an examination of activities undertaken upon the land in question”;
- s 10AA is concerned with “use” at large rather than “use” by any particular person;
- use means the “use” to which the land is put by a person – whether or not the owner – who has the ability to “use” it; and
- “the identity and attributes of the owner” are irrelevant.
(iv) The dominant use test in s 10AA(3) applies to the activities being undertaken on the land, not the owners or users of the land ([33]).
(v) The commerciality test and the purpose of profit test relate to the business activities arising from the use of the subject land ([34]).
(vi) There is no requirement in s 10AA(3) for the use or uses of the land to be part of the same joint activity, business or enterprise. The singular word “use” includes the plural “uses”: Interpretation Act, s 8(b) ([41]).
(vii) The expression “dominant use” has regard to quantification of uses within paragraphs (a)-(f) of s 10AA(3) as against uses that are not within those paragraphs: Metricon at [48] ([42]).
(viii) The dominant use test does not refer to the identity of the user, and does not require the taxpayer to be the one using the land for primary production ([43]).
(ix) Section 10A(1) provides that “[i]f land is used for more than one purpose and each of those purposes is an exempt purpose, the land is exempt from taxation”. The same purpose of primary production conducted by six different people or entities can be combined to determine the dominant use of the land ([44]).
(x) When determining “purpose”, whether it be in relation to the dominant use, commerciality or purpose of profit test, a user’s (or users’) subjective intention is relevant. However, the ultimate finding as to purpose must be based on an objective evaluation of all the circumstances ([57]-[60]).
(xi) The primary production uses for commercial purposes of multiple users can be aggregated for the purpose of determining if the exemption applies ([68]).
(xii) The fact that one or more separate “uses” of the land by a user does not meet the commerciality or purpose of profit test does not mean that those tests are not met for the use of the land as a whole ([69]).
Whether the Tribunal erred in aggregating commercial activities on the subject land with commercial activities on neighbouring land in deciding whether the commerciality and purpose of profit tests were met – NO
(xiii) The commerciality test may still be met where a business is carried out on separate parcels of land ([98]).
(xiv) When applying the dominant use test, only the subject land can be considered. However, when applying the commerciality test and the purpose of profit test, the use of other land can be considered: Leppington Pastoral Co Pty Ltd v Chief Commissioner of State Revenue [2017] NSWSC 9 at [48]-[49] (White J) ([105]).
(xv) The relevant business or industry must be the dominant use of "the land". It is implicit that the commercial character of the business should be evident from the use of the subject land, either on its own or in conjunction with other land: Thomason v Chief Executive, Department of Lands (1995) 15 QLCR 286 at 307; Maraya Holdings Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 2 at [72]-[73]; Vartuli v Chief Commissioner of State Revenue [2014] NSWSC 678 at [36] ([99]-[103]).
(xvi) The Tribunal understood these legal principles and applied them to the facts that it found. An argument that the activities conducted across separate parcels of land were not “sufficiently integrated” to be part of the same business would require leave to appeal on a question of fact, which the Appeal Panel did not grant ([106]).
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| Consumer and Commercial Division - Social Housing
A Suthers, Principal Member; S Thode, Senior Member
In sum: The Appeal Panel allowed an appeal from a decision of the Consumer and Commercial Division on the basis that the Tribunal below misapplied s 154D(3)(b) of the Residential Tenancies Act 2010 (NSW) (the RT Act) by taking into account the past offending and “fault” of the appellant while assessing whether she would suffer “undue hardship” from a termination order.
Facts: Ms Bidwood (the appellant) and the NSW Land & Housing Corporation (the respondent) were parties to a social housing tenancy agreement ([4]).
The respondent brought proceedings against the appellant in the Tribunal seeking orders for termination and possession pursuant to s 91(1)(b) of the RT Act, after prohibited drugs and a prohibited weapon were discovered during execution of a police search warrant ([2], [7]).
The respondent’s application was successful, and the Tribunal terminated the social housing tenancy agreement ([2]).
In deciding the application, the Tribunal found that the appellant suffered from schizophrenia, which is a disability within the meaning of the Anti-Discrimination Act 1977 (NSW) and for the purpose of s 154D(3)(b) of the RT Act ([8]).
However, the Tribunal was not satisfied that the appellant would suffer undue hardship if her tenancy agreement were terminated. In reaching this conclusion, the Tribunal had regard, amongst other things, to ([11]-[12]):
“the [appellant’s] prior conviction in 2015, which…. also involved unlawful use of the premises, the ongoing use of cannabis from the premises for many years together with the storage of ICE and Ritalin at the premises for 6 and 2 years respectively prior to the police search in 2019 and the nature of the unlawful conduct the subject of this Application as well as the history of the tenancy.”
Held (allowing the appeal and remitting the matter to the Tribunal):
Whether the Tribunal erred when, in determining whether the tenant would be occasioned undue hardship by terminating the tenancy agreement, it had regard to irrelevant considerations (i.e. the seriousness of prior offences and the fault of the appellant) – YES
(i) In determining an application under s 91(1)(b) in respect of a social housing tenancy, the Tribunal must consider ([30]):
- whether the elements of s 91(1)(b), and thereby s 154D(2)(c), are made out, such that termination of the agreement is, prima facie, mandatory;
- if so, whether s 154D(3)(b) is engaged, because a termination order would result in undue hardship to a person with a disability OR s 154D(3)(c) is engaged, because the Tribunal is satisfied that other exceptional circumstances exist which justify the order not being made;
- If either s 154D(3)(b) or s 154D(3(c) apply, the Tribunal has a discretion as to whether or not to terminate the tenancy agreement, and must exercise that discretion having regard to the factors listed in s 154E(1) and to any other factors relevant to the exercise of the discretion. If not, then it must make a termination order.
Orr v NSW Land and Housing Corporation [2018] NSWCATAP 23 at [33]; New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, at [80] to [81] (per Bell P, with Ward JA agreeing) and [118]-[119] (McCallum JA)
(ii) Considerations of fault must be excluded from an assessment of “undue hardship” in the context of s 154D(3)(b), its purpose being to mitigate the harsh consequences of s 154D(1) for defined categories of people who occupy social housing premises in circumstances where an order for termination would otherwise be mandatory, regardless of the tenant’s degree of fault: Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1; [2014] NSWCA 28 at [39]; New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [32]).
(iii) The Tribunal in this case erred by making specific reference to the appellant’s prior offences in 2015, the severity of the offences committed and the “fault” of the appellant, “amidst” its consideration of the undue hardship provisions ([46], [51]).
(iv) The Appeal Panel was not satisfied that the analysis by the Appeal Panel in Orr was correctly applied by the Tribunal. Nor did the Member’s reasons demonstrate an understanding of the clear differentiation between the application of s 154D(3) and the exercise of the discretion under s 91 or consideration of the elements of s 91(1)(b) ([54]).
(v) The Appeal Panel was satisfied that the Member took into account an irrelevant consideration when deciding whether prospective undue hardship had been demonstrated, constituting an error of law ([55]).
Whether the Tribunal erred by failing to consider that, after it had found there was no undue hardship and the provisions of s 154D(3) were not otherwise enlivened, the termination of the tenant’s social housing tenancy agreement was mandatory – YES
(vi) Having found that the elements of s 91(1)(b) were made out, and rejected the existence of undue hardship, the Tribunal had no other option under s 154D(2)(c) than to terminate the tenancy ([58]).
(vii) There was no clear indication the Tribunal’s reasons that it had applied the correct reasoning process in this respect. In the Appeal Panel’s opinion, the reasons reflected more than a mere “looseness” of language but rather the lack of a clear understanding of the relevant test to be applied ([58]).
(viii) The Tribunal’s use of the word “should” in the following excerpt made it clear that it was of the erroneous view that it was still exercising a discretion in terminating the tenancy: “The Tribunal finds on balance that neither s 154D(3)(b) or (c) is made out and so s 154D(3) does not apply…. The Tribunal finds the Tenancy should be terminated under sections 91(1)(b) and 154D(2)(c) ….” ([60]-[61]).
(ix) Accordingly, both grounds of appeal were upheld, and the matter was remitted to the Tribunal for determination according to law ([55], [62], [64]).
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| Consumer and Commercial Division - Consumer Claim
G Blake AM SC, Senior Member; J Kearney, Senior Member
In sum: The Appeal Panel allowed an from a decision in the Consumer and Commercial Division, on the basis that the Tribunal below applied an incorrect test for “unconscionable” conduct under s 21 of the Australian Consumer Law (ACL), and for whether the appellant was “involved” in “misleading or deceptive conduct” under s 18 of the ACL.
Facts: Ms Wan (the respondent) purchased a home unit in Brisbane, and entered into a contract with And Chill Property Management Pty Ltd (in liquidation) (ACPM) being a Rental Guarantee and Agency Agreement (the Agreement). The management of the unit was to be as a short stay rental via online platforms such as Airbnb ([6]).
Mr Jeffrey Feng was the director of ACPM and licensee pursuant to the Property, Stock and Business Agents Act 2002 (NSW). Mr Callum Forbes was the director and chief executive officer of And Chill Pty Ltd (in liquidation) (AC). AC was the holding company for ACPM ([7]-[8]).
Ms Wan brought proceedings in the Tribunal against ACPM, AC, Mr Feng and Mr Forbes. After ACPM and AC went into liquidation, Ms Wang continued proceedings against Mr Feng and Mr Forbes alleging breaches of the Australian Consumer Law (NSW) (ACL) including misleading and deceptive conduct and unconscionable conduct ([9]-[10]).
In particular, Ms Wan claimed that ACPM had made certain representations to her, via messages from an employee, “Dean”, on WeChat ([17]). These included representations that the tenants would pay for any damage to the property; that the property would be cleaned after each tenant; and the furniture purchased for the unit would be of “premium quality” ([14], [62]).
The Tribunal found that Mr Forbes and Mr Feng were both involved in contraventions of ss 18 and 21 of the ACL, and ordered that they were jointly and severally liable to pay Ms Wan compensation in the amount of $7,049.64 ([2], [26]).
Mr Forbes appealed the decision, while Mr Feng did not ([42]).
Held (allowing the appeal in part):
Whether the Tribunal applied an incorrect test for “unconscionable conduct” in breach of s 21 of the ACL – YES
(i) Failing to comply with a contract, of itself, does not constitute unconscionable conduct without more. The recent High Court judgment in Australian Securities and Investments Commission v Kobelt (2019) 368 ALR 1; [2019] HCA 18 indicated elements of exploitation, vulnerability or a predatory state of mind. The test applied by the Tribunal indicated only failure to comply with the terms of the contract, which is an incorrect test, and an error of law ([57]).
(ii) The elements of exploitation, vulnerability or a predatory state of mind were not part of the reasoning of the Tribunal and did not appear from the facts of this matter. Further, the facts did not include any element of a special disadvantage in the relative positions of the parties. The Tribunal’s bland conclusion of conduct being “outside societal norms of acceptable commercial behaviour” was unsustainable in the absence of those elements ([59]-[60]).
(iii) The Tribunal fell into error when applying the legal test of unconscionable conduct to the facts as found ([61]).
Whether the Tribunal erred in having regard to WeChat messages in Chinese, without a certified translation – NO
(iv) Despite the relative informality of the Tribunal’s practice and procedure, a certified translation of a document in a foreign language will usually be required, particularly if the evidentiary purpose of the document is to prove serious misconduct by a person: Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [30]-[33]; Chen v Feng (GEN 19/24796) at [31]-[32], [101]-102] ([66]).
(v) However, in this case, the Appeal Panel was satisfied that the Tribunal did not err by admitting Ms Wan’s evidence of WeChat text conversations without a certified translation, because ([67]):
- the Tribunal said it approached the annexures with caution because they included non-certified translations. In other words the Tribunal was aware of the issue and adjusted its analysis accordingly;
- Mr Forbes and Mr Feng did not bring evidence in the Tribunal to dispute the content of the conversations alleged. Ms Wan was not cross-examined to suggest there was some inaccuracy or mistake in the informal translations; and
- in the Appeal Panel, Mr Forbes did not seek to rely on further evidence to demonstrate that any of the translations by Ms Wan were incorrect or misleading.
Whether the Tribunal applied an incorrect test for whether Mr Forbes was “involved” in misleading or deceptive conduct in breach of s 18 of the ACL – YES
(vi) Section 2 of the ACL defines the word “involved” for the purposes of the ACL ([76]).
(vii) In Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 at [17] the High Court said that “involved” requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention ([76]).
(viii) The evidence was silent as to the involvement of Mr Forbes in the alleged conduct, excepting his own evidence that he never met Ms Wan and had no direct contact with her. Although he was the director and secretary of AC and responsible for the day-to-day management and operations of AC and ACPM, there was no evidence that he knew, at the relevant time, the company would not fulfil its promises ([79]).
(ix) The Appeal Panel found that the evidence fell short of the statutory test of the requisite knowledge of the essential elements of the contravention. It was not sufficient that “he employed staff”, or to infer that “it is not conceivable that [he] was not aware of the representations” ([80]).
(x) Accordingly, the Appeal Panel held that the Tribunal erred in applying the test for whether Mr Forbes was involved in the contravention. It was therefore not necessary for the Appeal Panel to decide whether the representations made to Ms Wan constituted misleading or deceptive conduct ([72], [83]).
(xi) The appeal was allowed in part, and order 1 of the Tribunal was amended such that only Mr Feng (not Mr Forbes) was required to pay $7049.64 to Ms Wan ([87]).
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| Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102Consumer and Commercial Division - StrataA Suthers, Principal Member; D Charles, Senior Member
In sum: The Appeal Panel allowed an appeal from a decision in the Consumer and Commercial Division, holding that it is permissible, in determining whether a “nuisance” is being caused under s 153 of the Strata Schemes Management Act 2015 (NSW) (SSMA), to have regard to the definitions and descriptions of “offensive” and “intrusive” noise under the Protection of the Environment Operations Act 1997 (NSW) (the PEO Act), and non-regulatory guidelines produced by the Environmental Protection Agency.
Facts: Mehdi Chehelnabi and Larissa Landinez (the appellants) are the owners and occupiers of a residential lot in a strata scheme, situated directly above a commercial lot owned by Gourmet and Leisure Holdings Pty Ltd (the first respondent), and leased to Monkberry Moon Pty Ltd (the second respondent), who operates a café on the premises (together, the respondents) ([2]).
The appellants brought proceedings in the Tribunal against the respondents, alleging a breach of s 153 of the SSMA due to noise, smell and vibrations from the commercial lot ([2]-[3]).
The hearing took place over three days in March, May and August 2019. During this period, the parties continued negotiations, and the respondents worked to ameliorate the appellants’ concerns. The Tribunal dismissed the application, finding that by the time the proceedings were finalised, it could not be satisfied there was a proper basis for the orders sought ([4]-[5]).
Both parties engaged expert witnesses to give evidence in the Tribunal proceedings. Both experts largely considered the issues by reference to the question of whether the noise which they measured in the residential lot which emanated from the commercial lot was "offensive noise" within the meaning of the PEO Act ([25]).
A related (but not synonymous) concept to that of “offensive noise”, referred to by both experts, was that of “intrusive noise”. That term is not defined in the PEO Act, but is found in various guides and policies produced by the Environment Protection Agency, including the Noise Guide for Local Government and Noise Policy for Industry (NPFI) ([27]-[28]).
The appellants appealed on a number of grounds, including that the Tribunal erred in treating the NPFI as being determinative of the issue of whether the noise constituted a nuisance for the purposes of the SSMA ([38]).
Held (dismissing the appeal):
Whether the Tribunal erred by treating the question of whether the noise from the commercial lot was “offensive” or breached the NPFI or PEO Act as determinative of the whole of the appellants' claim – NO
(i) “Nuisance” for the purpose of s 153(1)(a) of the SSMA is to be interpreted in accordance with the common law meaning of an actionable nuisance: The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134 at [46] (Darke J) ([52]).
(ii) For an actionable nuisance in respect of noise to be established, there are two primary elements which need to be satisfied ([73]).
- There must be some noise that can be heard by the complainant in the use of their lot which emanates from the respondents’ lot, allegedly causing damage or interference. This may readily be established by the subjective evidence of the appellants as to what they hear or experience ([74]).
- There must be evidence to establish to the satisfaction of the Tribunal that the noise is caused by a use of the respondents’ land which is excessive or unreasonable and “causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, considering the prevailing standard of comfort of the time and place”, or that what is experienced by the appellants is not “reasonable according to the ordinary usages of mankind living in … [our] society”: Bayliss v Lea [1961] NSWLR1002; Sedleigh-Denfield v O’Callaghan [1940] AC 880. This is an objective test: Marsh v Baxter [2015] WASCA 169 at [247]; Weber v Greater Hume Shire Council [2018] NSWSC 667 at [427] ([75]).
(iii) Whilst it is not a mandatory consideration or a precondition to a finding of nuisance, the definition of “offensive noise” in the PEO Act is relevant to the establishment of the second element. The standards set by the PEO Act and other governmental guidelines are relevant evidence of the reasonably acceptable standard of noise emission in our society, particularly as it affects others ([77]).
(iv) The Tribunal did not ask itself the wrong question or apply the wrong test. Nor did it treat the NPFI as being determinative of the issue of whether certain noise constituted a nuisance ([79]).
Whether the Tribunal erred by failing to take into account relevant evidence that was important or critical to the proper determination of the issues before it – NO
(v) The appellants submitted that the Tribunal failed to take into account their “uncontested” evidence that the noise from the commercial lot caused sleep disturbances; and occurred continuously through the night, at a time when the appellants had a reasonable expectation of peace and quiet ([83]).
(vi) The Tribunal was required to engage with the relevant evidence in its totality, and engage in an “active intellectual process”, in which each relevant matter received genuine consideration: Bat Advocacy NSW Inc v Minster for Environment Protection, Heritage and the Arts (2011) LGERA 99, [2011] FCAFC 59 at [44] ([85]).
(vii) To ignore or overlook apparently credible and relevant information, which might support an essential step in the reasoning process if the claim were upheld, may amount to an error of law. The fundamental question is the importance of the overlooked material to the exercise of the Tribunal’s function and thus the seriousness of any error: Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [65], [68] ([86]-[87]).
(viii) In this case, the Appeal Panel was satisfied that the Tribunal’s reasons took into account the appellants’ evidence about interrupted sleep. The Tribunal did not record that the evidence was unchallenged or whether it was accepted, however, given the thorough way in which the experience of the appellants was described, without reference to competing evidence, the Appeal Panel was satisfied it could infer the evidence was accepted ([88]-[90]).
Whether the Tribunal erred by failing to consider a mandatory relevant consideration or failed to give adequate reasons regarding that consideration – NO
(ix) The appellants submitted that the Tribunal did not consider the issue of whether the “operational noise” or the “odours and smells” from the cafe constituted a nuisance to the appellants, or an unreasonable interference in their use or enjoyment of the residential lot ([95]).
(x) A substantial or significant and clearly articulated claim raised by a party is a mandatory relevant consideration, and a failure to consider such a claim constitutes an error of law: Kassem v Minister for Home Affairs [2019] FCA 1196 at [59]-[70], [87] ([97]).
(xi) However, by the time final submissions were made, none of the orders the appellants sought had any bearing on the “operational noise” and “odour” issues ([100]).
(xii) No question of law arises in circumstances where the Tribunal did not resolve an issue and did not make findings of fact in relation to an issue which was not relevant to the contentions ultimately advanced before it for resolution. There was no error in the Tribunal not dealing with those issues in its reasons ([101], [104]).
(xiii) Accordingly, the appeal was dismissed ([107]).
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| | | Consumer and Commercial Division - Strata
Decision of: K Rosser, Principal Member; M Gracie, Senior Member
Catchwords: APPEAL – leave to appeal – exercise of discretion – leave refused - leave to adduce new evidence refused - strata scheme – common property defects – scope of works – rectification costs – whether strata levy excessive - costs of appeal |
| Consumer and Commercial Division - Social Housing
Decision of: A Suthers, Principal Member; S Thode, Senior Member
Catchwords: APPEAL – Residential Tenancy – Error of law – Proper application of s 91(1)(b) Residential Tenancies Act
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| Decision of: A Suthers, Principal Member; D Charles, Senior Member
Catchwords: LAND LAW – Strata Title – Claim of Nuisance – Strata Schemes Management Act 2015, s 153 –.Meaning of nuisance – proof of nuisance by noise transmission within Strata Scheme Adequacy of reasons
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| Decision of: A Bell SC, Senior Member; S Thode, Senior Member
Catchwords: CONSUMER CLAIMS - time bar for jurisdiction of the Tribunal under s 79L of the Fair Trading Act 1987 (NSW) - elements of cause of action to reject goods for non-compliance with the guarantee as to acceptable quality – time at which determination of acceptable quality is to be made- when cause of action accrues.
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| Decision of: T Simon, Principal Member; D Goldstein, Senior Member
Catchwords: HOME BUILDING – Contract completion date - Delay damages for late completion- new evidence
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| Administrative and Equal Opportunity Division
Decision of: N Hennessy ADCJ, Deputy President; P Durack SC, Senior Member
Catchwords: APPEAL – decision to remove child and cancel authorisation as an authorised carer – where Appeal Panel upheld the appeal in part based on “Code of Conduct error” and directed parties to provide submissions on the further orders the Appeal Panel should make – whether Appeal Panel should determine the matter based on the evidence adduced before the Tribunal and those findings of the Tribunal not disturbed by the Code of Conduct error or whether the Appeal Panel should remit the matter to the Tribunal
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| Consumer and Commercial Division - Consumer Claim
Decision of: P Durack SC, Senior Member; J Currie, Senior Member
Catchwords: CIVIL PROCEDURE – procedural fairness- whether reasonable opportunity to be heard.
APPEAL –leave to appeal- whether decision fair and equitable.
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| | Administrative and Equal Opportunity Division Decision of: Armstrong J, President; R L Hamilton SC, Senior Member
Catchwords: APPEAL – administrative review – decision to refuse firearms licence – public interest – adequate reasons – failure to make findings on material issues in dispute – implied findings – no evidence for finding – relevant considerations – error of law – onus and standard of proof in challenge to administrative decisions
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| Consumer and Commercial Division - Home Building
Decision of: J Lonsdale, Senior Member
Catchwords: APPEAL - Civil and Administrative Tribunal – interlocutory decision – practice and procedure – late filing of evidence – explanation for delay – prejudice to respondent – leave refused
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| Consumer and Commercial Division - Home Building
Decision of: P Durack SC, Senior Member; D Robertson, Senior Member
Catchwords: APPEAL – Procedural fairness – Appellant claimed had not received critical expert report prior to hearing – no evidence filed on appeal to support assertion – facts said to constitute denial of procedural fairness not established
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Major defect – a small crack in a swimming pool shell not extending below the water-line did not amount to “destruction” of the swimming pool – evidence that the pool shell was not adequately supported and that cracking of the shell had occurred was sufficient to establish that the pool was likely to become unusable
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| Consumer and Commercial Division - Commercial
Decision of: A Suthers, Principal Member; G Sarginson, Senior Member
Catchwords: APPEALS---Dividing fences---Renewal proceedings---Order dismissing proceedings---Whether error of law established---Whether other error involving leave established
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| Consumer and Commercial Division - Social Housing Decision of: A P Coleman SC, Senior Member; D Charles, Senior Member
Catchwords: SOCIAL HOUSING – compensation for breach of landlord’s covenant of quiet enjoyment
SOCIAL HOUSING - compensation where retaliatory eviction alleged
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| Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; P H Molony, Senior Member
Catchwords: COSTS – in Consumer and Commercial Division – cross appeals - costs on internal appeals – rule 38A of the Civil and Administrative Tribunal Rules 2013 - amount in dispute exceeds $30,000 – costs follow the event – whether costs order should be made with respect to each appeal – one party substantially successful on both appeals – issues in appeals interrelated – single order for costs made in accordance with usual rule
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| Decision of: S Westgarth, Deputy President; J Currie, Senior Member
Catchwords: CONTRACT - Home Building Act - failure to progress the works - findings available on the evidence - substantial breach – repudiation - contractual rights and coexistence of common law rights - procedural fairness - failure of consideration.
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| Consumer and Commercial Division - Consumer Claim
Decision of: A Suthers, Principal Member; J Lucy, Senior Member
Catchwords: APPEAL leave to appeal hearing dispensed with no proper basis for a grant of leave
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| Consumer and Commercial Division - Community Schemes Decision of: Dr R Dubler SC, Senior Member; M Gracie, Senior Member
Catchwords: APPEAL - leave to appeal - leave refused - costs - exercise of discretion - withdrawal of application - no hearing on the merits - special circumstances - no question of law - no demonstrated error - no substantial miscarriage of justice - costs of the appeal
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| | Consumer and Commercial Division - Home Building Decision of: T Simon, Principal Member; D Goldstein, Senior Member
Catchwords: APPEAL – Leave to Appeal Costs – When determination is to be made whether costs of the proceedings exceed $30,000.00
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| Consumer and Commercial Division - Tenancy
Decision of: Dr R Dubler SC, Senior Member; D Charles, Senior Member
Catchwords: COSTS – whether special circumstances exist pursuant to s.60 of the Civil and Administrative Tribunal Act 2013 – amount claimed or in dispute not more than $30,000 – no special circumstances exist – application for costs dismissed – no order as to costs.
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| | Consumer and Commercial Division - Home Building Decision of: A Suthers, Principal Member
Catchwords: APPEAL – costs – costs of application for a stay
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| | Consumer and Commercial Division - Tenancy Decision of: A Suthers, Principal Member; S Thode, Senior Member
Catchwords: APPEAL – Residential Tenancy – whether relevant evidence overlooked by Tribunal
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| Consumer and Commercial Division - Home Building Decision of: K Rosser, Principal Member; D Goldstein, Senior Member
Catchwords: COSTS – Disbursements and expenses of a self-represented litigant
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| Guardianship Division
Decision of: N Hennessy ADCJ, Deputy President; J Currie, Senior Member; M Bolt, General Member
Catchwords: APPEAL – guardianship - where Tribunal dismissed an application to review a guardianship order - where daughter of subject person has appealed from that decision – whether Tribunal made an error of law – whether leave should be given for appellant to appeal on questions other than questions of law
APPEAL – financial management – where Tribunal made a financial management order and appointed the NSW Trustee and Guardian – where daughter of subject person has appealed from that decision – whether Tribunal made an error of law – whether leave should be given for appellant to appeal on questions other than questions of law
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| Consumer and Commercial Division - Tenancy
Decision of: G K Burton SC, Senior Member; D A C Robertson, Senior Member
Catchwords: RESIDENTIAL TENANCY - alleged damage to tenant's goods - failure to discharge burden of proof
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| | Consumer and Commercial Division - Commercial Decision of: R L Hamilton SC, Senior Member; G Blake AM SC, Senior Member
Catchwords: APPEAL – Retail Leases Act- right to rent review-application of precedent-compensation for disruption and access to premises-compensation for unconscionable conduct and misleading and deceptive conduct- no error of law-rejection of document tender-no new evidence permitted-leave to appeal refused
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| Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; M Harrowell, Deputy President
Catchwords: TAXATION – Land Tax Management Act 1956 – exemption for primary production use – multiple users of subject land – appropriateness of aggregating use of land by different users in applying tests for exemption – appropriateness of considering financial integration of primary production enterprise where different primary production use of other land from that of the subject land
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| Consumer and Commercial Division - Tenancy
Decision of: K Ransome, Senior Member; P H Molony, Senior Member
Catchwords: APPEAL – residential tenancy agreement – failure to identify how tenancy ended – error of law – abandonment – compensation for loss – leave to appeal – substantial miscarriage of justice
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| Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; S Westgarth, Deputy President; A Suthers, Principal Member
Catchwords: STATUTORY INTERPRETATION – access to government information – where applicant applied for government information but did not include such information as was reasonably necessary to enable the government information applied for to be identified – whether application wholly invalid - meaning of phrase “the government information applied for” in s 41(1)(e) of Government Information (Public Access) Act 2009
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| Consumer and Commercial Division - Motor Vehicles
Decision of: P Durack SC, Senior Member; G Blake AM SC, Senior Member
Catchwords: APPEALS - decision made in the absence of the respondent to the application-lack of reasons - extension of time for appeal to be lodged.
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| Consumer and Commercial Division - Strata
Decision of: P Durack SC, Senior Member; G Blake AM SC, Senior Member
Catchwords: APPEALS – application by the owners corporation for leave to be legally represented where no relief claimed against it – leave granted for solicitor to appear as amicus curiae – application by the appellant for an extension of time in which to appeal where he is no longer an interested person – application dismissed
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| Consumer and Commercial Division - Consumer Claim
Decision of: G Blake AM SC, Senior Member; J Kearney, Senior Member
Catchwords: APPEALS - whether question of law - error of law – incorrect test for determining unconscionable conduct and misleading or deceptive conduct under the Australian Consumer Law (NSW)
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| Guardianship Division
Decision of: C P Fougere, Principal Member; L Pearson, Principal Member; B McPhee, Senior Member
Catchwords: APPEAL – Appeal from orders made by Guardianship Division – decision to revoke appointment of private financial manager – decision to appoint NSW Trustee and Guardian – leave to appeal refused – appeal dismissed.
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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.
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