| | NCAT Appeal Panel Decisions Digest Issue 6 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 July 2020: - Thurston v Goway Travel Pty Limited [2020] NSWCATAP 140 - in which the Appeal Panel allowed an appeal from a decision in the Consumer and Commercial Division relating to "unjust enrichment", on the basis that the Tribunal below had erred in finding there was "no evidence" to support key elements of the appellant's claim, and made a decision that was against the weight of the evidence.
- PR v MDM [2020] NSWCATAP 151 - in which the Appeal Panel allowed an appeal from a decision in the Consumer and Commercial Division, and decided to deal with the appeal by way of a new hearing, on the basis that the "fresh evidence" adduced by both parties warranted a new hearing, and the Tribunal below had mistakenly made a "non-publication order" when intending to make a "non-disclosure order" under s 64(1)(a) of the NCAT Act.
- Zonnevylle v Department of Education [2020] NSWCATAP 162 - in which the Appeal Panel dismissed an application from an appellant requesting that the Appeal Panel make certain orders prior to a hearing on the appellant's stay application. In doing so, the Appeal Panel commented, but did not decide, on the applicability of the requirement to give reasons on request (s 62 of the NCAT Act) to decisions of a procedural nature (e.g. laying down a timetable for the filing of evidence and submissions).
- Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 - in which the Appeal Panel allowed an appeal from a decision in the Consumer and Commercial Division, on the basis that the Tribunal had erred in holding that it did not have jurisdiction to determine the appellant's consumer claim because the cause of action had "accrued" more than 3 years before she applied to the Tribunal. While the Tribunal below held that the appellant's cause of action accrued at the time of purchasing the defective goods, the Appeal Panel held that a cause of action under s 259(4) of the ACL (in which a consumer rejects goods, and elects to receive either a refund or replacement) accrues on the date of rejection by the consumer, provided this occurs within the rejection period defined in s 262(2).
- Murabito v Commissioner for Fair Trading (No 2) [2020] NSWCATAP 155 - in which the Appeal Panel dismissed an appeal from a decision in the Occupational Division, holding that the Appeal Panel did not err in applying the test for whether an offence involves "dishonesty" for the purpose of s 16 of the Property Stock and Business Agents Act 2002 (NSW).
- Webb v Port Stephens Council [2020] NSWCATAP 152 - in which the Appeal Panel allowed an appeal from, and set aside an order made in the Administrative and Equal Opportunity Division restraining the appellant from making access applications under the Government Information (Public Access) Act 2009 (NSW), on the basis that the Tribunal's decision was affected by apprehended bias, in circumstances where the Tribunal had "invited" the respondent to apply for such an order (notwithstanding that the respondent had applied for the order before the Tribunal's invitation). The Appeal Panel also commented on the ability (or lack thereof) of the Tribunal to make orders restraining individuals from making access applications "in concert" with other individuals.
Each case title is hyperlinked to the full decision available on NSW Caselaw.
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| Thurston v Goway Travel Pty Limited [2020] NSWCATAP 140
Consumer and Commercial Division - Consumer Claim
M Harrowell, Deputy President; J McAteer, Senior Member
In sum: The Appeal Panel granted leave and allowed an appeal from a decision in the Consumer and Commercial Division, on the basis that the Tribunal below failed to have regard to relevant evidence, erred in law by finding that there was “no evidence” to support key elements of the appellant’s claim, and made a decision that was against the weight of the evidence. However, the Appeal Panel refused the appellant’s request to adduce new evidence on the appeal. In setting aside and substituting the Tribunal’s order below, the Appeal Panel also discussed the application of the principles of “unjust enrichment”.
Facts: The appellant, Mr Thurston, commenced proceedings in the Consumer and Commercial Division in March 2019, seeking a refund of money he claimed to have paid to the respondent, Goway, through his cousin Mr Ide. The money was used by Mr Ide to purchase three travel passes from Goway, which were to entitle Mr Thurston to international airline tickets, accommodation, car hire and other travel-related benefits. Mr Thurston sought a refund 10 months after the purchase, noting that he had not used any of the travel passes. Goway claimed there was no contract with Mr Thurston, and that the arrangement was with Mr Ide, who used the funds for his own travel services ([1]-[3]).
The Tribunal dismissed Mr Thurston’s application, finding there was no reference in Goway’s records to receiving money from Mr Thurston; that there was nothing in writing confirming the transfer from Mr Ide or how the money was to be applied to travel benefits for Mr Thurston; that Goway had not been unjustly enriched; and that there was no evidence that Mr Ide was an agent or contractor of Goway ([5]-[6]). Mr Thurston appealed this decision, and sought to rely on new evidence, including a statement by Mr Ide (who was not called as a witness below) and various emails between Mr Ide and Goway ([7], [10]).
Held (granting leave to appeal and allowing the appeal):
Leave to adduce new evidence
(i) Other than a submission that Mr Thurston did not know that the Tribunal would make findings that the tendered evidence did not establish the matters claimed, no basis was put forward as to why the material could not have been put before the Tribunal in first instance. The fact Mr Thurston was unsuccessful was not of itself sufficient reason to grant leave ([34]).
(ii) The material sought to be adduced clearly predated the original hearing, or was evidence from witnesses who could have provided a statement or been called to give evidence at that hearing. There was nothing on the face of the material to indicate it was not reasonably available: cl 12(1)(c), Sch 4 to NCAT Act; Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [19]-[26] ([35]).
(iii) Accordingly, the application for leave to appeal on the basis that there was “significant new evidence …. that was not reasonably available at the time the proceedings under appeal were being dealt with” was refused ([36]).
Whether the Tribunal erred in law
(iv) The Tribunal erred in finding that there was “no evidence” that Goway was told Mr Thurston had paid $27,000 to it, by failing to consider relevant evidence of that matter. That evidence was an email from Mr Ide to Ms Comito, an employee of Goway, which described a number of payments, including one titled “Thurston – 3 Passes - $27k” ([38], [45], [56], [58]).
(v) The Tribunal also failed to consider other evidence or refer to other evidence, including (a) emails exchanged between Mr Thurston and Ms Comito after he had requested the refund from Goway, which constituted “an acknowledgement by an employee of Goway... that funds were previously received by Goway from or on behalf of Mr Thurston”, and (b) internal communications and bank statements of Goway, which confirmed that the $27,000 was processed separately to other payments made by Mr Ide, such that it could be “traced” by Mr Thurston ([47]-[48], [51], [54]).
(vi) There was no reason for the Tribunal to reject the contemporaneous documents as recording the circumstances in which Goway received the payment of $27,000 ([53]).
(vii) Contrary to the Tribunal’s findings, this evidence established that Goway, through Ms Comito, knew that a payment was made to it on behalf of Mr Thurston for the travel passes, and received the money on that basis ([56]).
(viii) Further, the Tribunal’s decision was against the weight of the evidence, and the Appeal Panel was satisfied that leave should be granted, as the appellant might have suffered a substantial miscarriage of justice ([58]).
(ix) The Appeal Panel referred to authorities governing “unjust enrichment” and “failure of consideration”: Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Bassat; Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd [2012] HCA 7 (Equus) at [30]; Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68 (Roxborough) at [16] ([60]-[61]).
(x) In Equus, French CJ, Crennan and Kiefel JJ noted that “[f]ailure of consideration is one of the factors that makes retention of a benefit prima facie unjust”, and cited Gummow J’s statement in Roxborough that “[f]ailure of consideration is not limited to non-performance of a contractual obligation”. As previously acknowledged by the High Court, “[f]ailure of the consideration for a payment ... means that the state of affairs contemplated as the basis or reason for the payment has failed to materialise or, if it did exist, has failed to sustain itself” ([60]-[61]).
(xi) In this case, it was enough that payment had been made by Mr Thurston and received by Goway for a purpose, and that the purpose had failed. Accordingly, the claim for monies had and received was made out. The Appeal Panel set aside the Tribunal’s order below, and substituted an order that Goway refund the $27,000 to Mr Thurston ([62]-[63], [70]).
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| Consumer and Commercial Division - Strata
N Hennessy, Deputy President ADCJ; A Suthers, Principal Member
In sum: The Appeal Panel decided to deal with an appeal from a “non-publication order” by way of a new hearing, on the basis that (a) the grounds of appeal, insofar as they related to new evidence, warranted a new hearing, and (b) the Tribunal below had intended to make a “non-disclosure order”, which is broader in effect than a non-publication order.
Facts: MDM applied to the Tribunal for orders that PR, TT and GW be removed as members of a strata committee representing owners in a strata plan ([1]).
The Tribunal made “interim confidentiality orders” on the basis that MDM is a judicial officer, and publication of identifying information could enable a person to cause him or his family harm ([1]).
After MDM withdrew his substantive application, a differently constituted Tribunal made “final confidentiality orders”, including an order that “the publication of the parties’ names is restricted from publication except to the parties” (Order 3) ([4]). PR, TT and GW appealed to the Appeal Panel from that order only ([6]).
Held (deciding to deal with the appeal by way of a new hearing, substituting Order 3 until further order, and listing the appeal for call-over):
(i) The Appeal Panel decided to deal with the appeal by way of a new hearing pursuant to s 80(3)(a) of the NCAT Act. This was on the basis that:
a. The grounds of appeal, insofar as they related to “fresh evidence” sought to be adduced by the parties, warranted a new hearing. The appellants referred to fresh evidence that MDM no longer owned his lot or resided in the strata scheme, and so there was no risk in disclosing his name or address. MDM sought to adduce fresh evidence in the form of a new affidavit ([7], [9]).
b. The Tribunal appeared to have misunderstood the effect of Order 3, which was expressed as a “non-publication order” under s 64(1) of the NCAT Act. In the Appeal Panel’s view, the Tribunal intended to make a “non-disclosure order” under s 64(1)(a). That is, it was clear from the Tribunal’s statements about the intended effect of the order that it intended to prohibit the disclosure, not just the publication, of the parties’ names. Neither term is defined in the NCAT Act. However, the Macquarie Dictionary defines “publish” as “to make publicly or generally known”, and “disclose” as having the “broader meaning” of “to make known or reveal”, including by publication ([10]-[13]).
(ii) However, the Tribunal did not err by either:
a. Failing to refer to evidence that MDM had vacated the premises in the strata scheme, in circumstances where the appellants had filed that evidence after the timetable for filing and serving submissions had closed, and it was not known whether the Tribunal was aware of that evidence ([17]-[20]); or
b. Incorrectly stating or misapplying the legal test for making an order under s 64 of the NCAT Act. However, the Appeal Panel noted the Tribunal’s reference to the “open justice principle” expressed in s 6 of the Court Suppression and Non-publication Orders Act 2010 (NSW), which does not apply to NCAT, and suggested that the parties might wish to make submissions on the relevance of the Court of Appeal’s recent comments in DRJ v Commissioner of Victims Rights [2020] NSWCA 136 (summarised in the July 2020 Legal Bulletin).
(iii) Accordingly, the Appeal Panel set aside Order 3, and substituted, until further order, an order that “under s 64(1)(a) of the [NCAT Act], the disclosure of the parties’ names is prohibited”. The appeal was listed for call over in August 2020 ([26]).
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| Administrative and Equal Opportunity Division
A Suthers, Principal Member
In sum: The Appeal Panel dismissed an application by the appellant which requested that the Appeal Panel make certain orders prior to holding a hearing on the Application for a Stay (the Stay Application). In doing so, the Appeal Panel raised but did not determine the issue of whether the Tribunal is required to given reasons for every decision (e.g. procedural directions) when a request is made under s 62(2) of the NCAT Act.
Facts: Mr Zonnevylle seeks to challenge a decision of the Tribunal, made pursuant to s 110 of the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act), that he is prevented from making access applications to various named governmental departments and agencies, without the approval of the Tribunal (decision available here). By way of background, Mr Zonnevylle has been involved in a substantial number of proceedings in the Tribunal arising from access applications made by him under the GIPA Act, since 2015 ([1], [12]).
Mr Zonnevylle lodged his Notice of Appeal and the Stay Application on 1 May 2020 ([2]). The Appeal Panel made directions regarding the lodgement and service of evidence and submissions in support of the Stay Application, and subsequently granted an adjournment of the hearing on the stay ([7]).
In a separate application, Mr Zonnevylle sought orders that the Appeal Panel be required to address “fundamental questions of law” before holding a hearing on the stay (the Questions Application) ([8]).
These included questions as to how the Tribunal “formulates fairness in [setting time limits] for submissions by” the parties (the Reasons Question), and requests that the Appeal Panel explain the “statutory obligations conferred on the Tribunal” and “the respondent and agencies”, the “effective rights of an applicant seeking access to government information under beneficial legislation such as the GIPA Act”, whether the applicant has a right to “good faith”, and whether “authorities” used in Tribunal proceedings are “evidence” ([14], [18])
Held (dismissing the Questions Application):
(i) In a number of the questions posed, Mr Zonnevylle appeared to seek comment from the Tribunal on the operation and effect of the doctrine of precedent, together with a general explanation of the role and functions of the Tribunal, and the obligations of government departments under the GIPA Act. The Appeal Panel declined to make such an order, on the basis that these questions were not directly relevant to the real issues in dispute between the parties ([20]-[22]).
(ii) The Appeal Panel treated the Reasons Question as a request for reasons for the directions made in relation to the timing of the parties’ submissions and evidence on the Stay Application ([24]).
(iii) Pursuant to s 62(2) of the NCAT Act, a party may request that the Tribunal provide a written statement of reasons for “its decision”. A “decision” includes “making… an order” or “giving… a direction”: NCAT Act, s 5(1)(a),(b) ([25]-[27]).
(iv) However, in relation to courts, it has long been accepted that not every decision warrants the giving of reasons (see e.g. the discussion of giving reasons for making orders by consent in Gaynor v Burns [2015] NSWCATAP 184 at [14]-[15], where the Appeal Panel noted the proposition in Ritchie’s Uniform Civil Procedure that “there is no requirement for a court to give reasons for the determination of merely procedural applications”) ([28]).
(v) This Appeal Panel noted that it was “similarly unconvinced that the Tribunal is required to give written reasons, on request, for every aspect of making directions in preparation of a matter for hearing, including the nomination of the timetable for the filing of material” ([29]).
(vi) Nonetheless, the Appeal Panel provided a brief explanation of the matters of which it was “satisfied” in setting down the timetable for filing evidence ([31]-[33]).
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| Consumer and Commercial Division - Motor Vehicles
M Harrowell, Deputy President; Dr R Dubler SC, Senior Member
In sum: The Appeal Panel allowed an appeal from a decision in the Consumer and Commercial Division, in which the Tribunal found it did not have jurisdiction to determine the appellant’s claim for breach of statutory warrantees under the Australian Consumer Law (the ACL). The question of jurisdiction depended on whether the appellant’s cause of action “accrued” more than 3 years before the application to the Tribunal was made. The Appeal Panel held that the appellant’s cause of action did not accrue at the time of purchase (as the Tribunal had found), but at the time the appellant “rejected” the goods under s 259(3)(a) of the ACL, provided this occurred within the “rejection period” defined in s 262(2). The question of exactly when this occurred was remitted for consideration by a differently constituted Tribunal.
Facts: The appellant (referred to as the consumer) purchased an Audi car from the respondent, Autosports, in June 2013. After persistent defects in the car and multiple attempted repairs, the consumer contended that the Audi was never fit for sale. The consumer applied to the Tribunal seeking either a refund, or an order that Autosports fix or replace the Audi, and pay damages for the cost of previous repairs ([1]-[3]).
The Tribunal found that the Audi was not of acceptable quality at the time of supply, and that the consumer guarantees under the ACL applied – specifically, s 54 (acceptable quality) and s 55 (fitness for any disclosed purpose) ([4], [56]).
However, it also found that it did not have jurisdiction to hear and determine the claim, because the guarantees “accrued” at the time of sale in July 2013, more than 3 years before the application to the Tribunal was lodged (outside of the limitation period in s 79L(1)(a) of the Fair Trading Act 1987 (NSW)). The Tribunal said it was not relevant whether or not the consumer was aware of her entitlement to pursue a consumer claim at the time she took possession ([4]-[5]).
The consumer appealed to the Appeal Panel ([6]).
Held (allowing the appeal, setting aside the decision below, and remitting the whole of the proceedings to the Tribunal differently constituted):
(i) The appeal raised a question of law, namely, whether the Tribunal erred in identifying and applying the test as to when the consumer’s causes of action first accrued, particularly in connection with the consumer purporting to reject the Audi and claim a refund. Accordingly, no leave to appeal was required ([41]).
Whether the Tribunal erred in treating consumer guarantees as implied terms in the contract – YES
(ii) Consumer guarantees in the ACL impose statutory obligations on suppliers, which give rise to statutory causes of action, independent of any contract. The Tribunal was wrong to regard the consumer guarantees it was considering under the ACL as implying terms into a contract for the purposes of ascertaining when the causes of action first accrued (i.e. as a basis for finding that the causes of action accrued “on breach”, being at the time of supply) ([44]-[48]).
Whether the Tribunal erred by failing to identify relevant causes of action available to the appellant – not necessary to decide
(iii) Given the Appeal Panel’s conclusion that the whole matter should be remitted to the Tribunal for reconsideration, it was unnecessary to decide whether the Tribunal erred in this respect ([52]).
(iv) However, the Appeal Panel thought it was doubtful that the Tribunal needed to consider all possible causes of action that the consumer could have in connection with the transaction. Rather, it is for an applicant to identify the claims they wish to make, and to inform the Tribunal and respondent about what those claims are; for the respondent to raise any defence; and for the Tribunal to consider the evidence in the context of the claims made and adjudicate on those claims ([53]-[54]).
When does a cause of action accrue for breach of consumer guarantees under the ACL?
(v) The term “cause of action” refers to the elements necessary to give rise to the right of action. A cause of action under the ACL has two discrete elements: a failure to comply with a guarantee, and suffering loss or damage as a result of such failure. A cause of action does not accrue until loss and damage arising from the contravention is sustained: Sacks v Hammond [2016] NSWCATAP 225 at [32], [56] ([64]-[66]).
(vi) When a cause of action arises requires relevant findings of fact. The Tribunal in this case failed to make such findings, because of its erroneous view that the cause of action accrued at the time of supply ([70]).
(vii) It also failed to have proper regard to the nature of the failure, and whether the consumer rejected the goods in the “rejection period” as prescribed by the ACL (see s 262(2), being the “period from the time of supply…. within which it would be reasonable to expect the relevant failure to comply with a guarantee…. to become apparent”) ([70]).
(viii) The right to reject the goods under s 259(3)(a) arises when there is a failure to comply with a consumer guarantee which constitutes a major failure within the meaning of s 260. It is upon notice of rejection being served that the supplier must refund or replace the rejected goods, depending on the consumer’s election under s 263(4). Thereafter, an action under s 259(4) may be commenced as it is at this point in time that loss is suffered ([74]).
(ix) This is in contrast to an action to recover compensation for any reduction in value under s 259(3)(b), which does not require notice of rejection, and arises upon breach of a guarantee which constitutes a major failure and the suffering of relevant damage ([75]).
(x) Accordingly, the consumer in this case needed to establish that she had notified Autosports that she rejected the goods, and of the grounds for rejection, within the “rejection period”. In order to comply with the limitation period under s 79L of the Fair Trading Act, the consumer then needed to commence proceedings in NCAT within 3 years of that rejection ([78]-[79]).
(xi) From a review of the case law (citations omitted), the Appeal Panel set out the following considerations relevant to determining the rejection period for a major failure ([83]):
a. The rejection period commences at the time of supply.
b. The rejection period ends when it would be reasonable for the defect to become reasonably apparent.
c. The period of time must be reasonable having regard to the defect. The test is objective, but the actual experience of the consumer is relevant.
d. Regard must be had to the factors in s 262(2)(a) to (d).
e. Matters affecting when a major failure may become reasonably apparent include:
i. Whether the goods are old or new;
ii. Whether the goods are regularly inspected, and whether inspections would be expected to reveal the failure;
iii. Whether a reasonable consumer fully acquainted with the state and condition of the goods, would know the cause of the defect, what needed to be done to fix it and the cost of doing so;
iv. Whether the supplier or repairer had identified a fault and carried out a repair which the consumer understood would rectify the fault;
v. Whether any subsequent testing or period of use was necessary and/or elapsed following any repair to see if it was successful;
vi. Whether a failure, or a series of failures in combination with each other, might render the goods unfit or otherwise lead a reasonable consumer to conclude they would not have acquired the goods;
vii. Whether a reasonable time has elapsed following the consumer becoming fully acquainted with the failure to make a decision about whether to reject the goods.
(xii) In this case, the question of whether the Tribunal had jurisdiction involved complex issues of fact, particularly as there were multiple defects alleged, and multiple repairs carried out over time ([84]).
(xiii) A finding as to when the consumer rejected the car was relevant to both the question of whether that rejection occurred within the “rejection period”, and whether it occurred less than 3 years before the NCAT application was made ([84]).
(xiv) Given the absence of any relevant findings of fact, the complexities involved in such fact finding, and the absence of cross-examination on relevant issues, the Appeal Panel was of the view that justice would be best served by remitting the whole matter to the Tribunal ([89]).
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| Occupational Division
Armstrong J, President; L Pearson, Principal Member
In sum: The Appeal Panel dismissed an appeal from a decision in the Occupational Division, relating to the appellant’s application for restoration of his real estate licence. The Appeal Panel discussed the test for whether an offence involves “dishonesty”, such that a person is a “disqualified person” under s 16 of the Property Stock and Business Agents Act 2002 (NSW) (the PSBA Act). The Tribunal did not err in applying that test, the appellant was unable to demonstrate any error of law, and the Appeal Panel refused leave to rely on fresh evidence which would not have made a difference to the Tribunal’s decision below.
Facts: Mr Murabito has been a licensed real estate agent since 1998. In 2019, he applied to renew that licence, and the respondent refused his application on the ground that Mr Murabito is a “disqualified person” under s 16(1)(a) of the PSBA Act. The decision was affirmed on internal review, and Mr Murabito applied to the Tribunal ([6]).
The Tribunal found that Mr Murabito’s criminal history contained offences involving dishonesty for the purposes of s 16(1)(a); that they could not be regarded as “trivial”; that it was not satisfied that sufficient time had elapsed since they occurred; and it was not prepared to exercise the discretion in s 16(2) to ignore the convictions. Because s 14(1)(d) of the PSBA Act provided a mandatory prohibition against issuing a licence, it was unnecessary to determine whether Mr Murabito was a fit and proper person to hold a licence under s 14(1)(b), and the Tribunal affirmed the respondent’s decision ([11]-[13]).
Mr Murabito appealed to the Appeal Panel. In a previous decision, the Appeal Panel dismissed an application by the respondent to summarily dismiss that appeal ([2]). Mr Murabito also sought leave to rely on fresh evidence, being a report by a forensic psychiatrist to support his contention that the Tribunal did not give enough weight to expert evidence as to his mental health at the time of the offences ([30], [33]).
Held (refusing leave to rely on fresh evidence, refusing leave to appeal and dismissing the appeal):
Leave to rely on fresh evidence
(i) The issues dealing with the nature of internal appeals relevant to the receipt of further evidence were discussed in Ros v Commissioner of Police [2020] NSWCATAP 70 (see the summary of that decision in the Appeal Panel bulletin for April 2020). In sum, the Appeal Panel will consider if the evidence would have been relevant to the Tribunal’s decision at first instance, if it would have been likely to produce a different result, if receipt on appeal would prejudice the other party, and if it would allow the Appeal Panel to consider whether serious injustice has resulted from the Tribunal’s decision ([35]).
(ii) In this case, given that expert reports as to Mr Murabito’s mental state were before the Tribunal below, the Appeal Panel was not persuaded that the more recent expert report would have added to the Tribunal’s understanding of the nature of the offending, and the length of time since the offending, or would have produced a different result on those issues ([37]).
(iii) Accordingly, leave to rely on fresh evidence was refused ([38]).
Whether the Tribunal erred in law
(iv) The relevant question for the purposes of s 16(1)(a) was whether the offences under s 50(b) (possessing a false drivers licence) and s 175(2)(b) (stating a false name or address to police) of the Road Transport Act 2013 (NSW) were offences “involving dishonesty”. The test is whether, on the face of the offence, it involves dishonesty. The offence does not have to include the word “dishonest”, and it is not permissible to look behind the conviction to consider the circumstances in which the offence was committed: Farah v Director-General, Department of Finance and Services [2014] NSWCATAP 23. There was no error in the Tribunal’s interpretation and application of this statutory test ([47]-[48]).
(v) In considering whether Mr Murabito’s offences could be ignored under s 16(2) of the PSBA Act, the Tribunal was required to consider the time that had passed since the offences were committed, and whether the acts giving rise to those offences could be characterised as trivial ([50]).
(vi) The transcript and reasons made it clear that the Tribunal considered the evidence about Mr Murabito’s mental health and acknowledged its relevance to determining whether it should exercise the discretion under s 16(2). The submission that the Tribunal did not give sufficient weight to this evidence did not raise a question of law ([51]-[54]).
(vii) Mr Murabito also submitted that the Tribunal erred in describing his application as being for “renewal” when it was instead a “restoration” application. However, the Appeal Panel considered that there is “no relevant difference” between these types of application under the PSBA Act ([58]).
(viii) The appellant did not demonstrate any error of law ([59]).
(ix) Leave to appeal was refused, as none of the appellant’s submissions raised issues of principle or public importance, or demonstrated that the fact finding task had miscarried to the extent that it would be unjust to allow the decision to stand ([60]-[61]).
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| Administrative and Equal Opportunity Division
N Hennessy, Deputy President ADCJ; L Pearson, Principal Member
In sum: The Appeal Panel set aside an order made in the Administrative and Equal Opportunity Division restraining the appellant from making access applications under the GIPA Act, on the basis that the decision was affected by apprehended bias. The Appeal Panel also commented that the Tribunal lacks power to make a restraint order which prevents an individual from making access applications “in concert” with another person. However, the Tribunal below was correct to dismiss the appellant’s application for administrative review for want of jurisdiction, in circumstances where the appellant sought review of the respondent’s failure to make a decision in accordance with remittal orders made in earlier NCAT proceedings.
Facts: Ms Webb applied to Port Stephens Council (the Council) under the GIPA Act, seeking information about third party consultations and objections made about a development application which the Council rejected for her former property. The Council granted partial access to some documents, and refused access to or refused to deal with others. Ms Webb applied to the Tribunal for administrative review, and the Tribunal affirmed the Council’s decision in relation to some documents, and remitted other documents back to the Council for reconsideration (the First Tribunal) ([3]-[4]).
Seven weeks after this remittal decision, Ms Webb filed new applications (a) seeking administrative review of the Council’s failure to make a decision about the remitted documents, and (b) requesting that the Council be referred to the Supreme Court for contempt. After Ms Webb had lodged these applications, the Council made a decision about the remitted documents ([7]-[8]).
The Council subsequently applied for an order that Ms Webb be restrained from making unmeritorious access applications, under s 110 of the GIPA Act ([9]).
A differently constituted Tribunal (the Second Tribunal) summarily dismissed Ms Webb’s administrative review and contempt applications, and made an order restraining Ms Webb from making unmeritorious applications, “whether solely on her own behalf or acting jointly or in concert with any other person”, without first obtaining the Tribunal’s approval (the restraint order) ([10], [58]).
Ms Webb sought to appeal from these three decisions ([1], [10]).
Held (setting aside the restraint order, but not the dismissal of the contempt application or the dismissal of the administrative review application):
Appeal Panel’s jurisdiction to hear appeal from contempt application
(i) The Appeal Panel did not have jurisdiction to hear an appeal from the decision to dismiss Ms Webb’s contempt application ([11]).
(ii) Section 80(1) of the NCAT Act provides that a party to proceedings can make an internal appeal against an “internally appellable decision”. That term is defined in s 32 of the NCAT Act not to extend to “any decision of the tribunal in proceedings for the exercise of its enforcement jurisdiction”, which includes the Tribunal’s functions in dealing with alleged contempt ([13]).
(iii) The Appeal Panel has no jurisdiction to hear an appeal from any decision of the Tribunal in proceedings dealing with an alleged or apparent contempt of the Tribunal ([14]).
Tribunal’s jurisdiction to hear application for administrative review of the Council’s failure to make a decision following remittal
(iv) The Tribunal below did not have jurisdiction to hear a new application for administrative review of the Council’s failure to make a decision within 20 days after the remittal decision of the First Tribunal ([11]).
(v) When the Tribunal sets aside a decision and remits it to the administrator for reconsideration under s 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), its decision is final – there are no “machinery provisions” allowing for further proceedings in the Tribunal. This is in contrast to the power to remit under s 65(1) of the ADR Act, under which the Tribunal can remit a matter “at any stage of the proceedings”, and if the administrator varies or makes a different decision, the applicant may proceed with or withdraw the application for review in the Tribunal ([22]-[25]).
(vi) The Appeal Panel disagreed with comments made in previous decisions of Appeal Panel of the former Administrative Decisions Tribunal and of this Tribunal that the Tribunal has jurisdiction to administratively review a new decision made by an agency following remittal under s 63(3)(d) ([29]).
(vii) A new decision, or a failure to make a new decision, following remittal under s 63(3)(d), is not a decision “in response to an access application” as required by s 80 of the GIPA Act, and is therefore not a “reviewable decision” under s 100(1) of the GIPA Act. Rather, it is “in response” to the Tribunal’s orders setting aside the earlier decision and remitting the matter for reconsideration ([32]-[33]).
(viii) Further, s 57 of the GIPA Act, which requires an agency to decide an access application within 20 working days of receipt, does not apply in circumstances where the agency is not “deciding an access application”, but is reconsidering its previous decision in accordance with Tribunal orders ([34]).
(ix) The Second Tribunal was correct to dismiss Ms Webb’s new application for administrative review, as there is no provision in the enabling legislation giving the Tribunal jurisdiction to determine administrative review applications following a remittal under s 63(3)(d) of the ADR Act ([35]).
Apprehended bias
(x) The Second Tribunal’s decision under s 110 of the GIPA Act to restrain Ms Webb from making unmeritorious applications was affected by apprehended bias, and was set aside on this basis ([11]).
(xi) An apprehension of bias will exist if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issues in dispute ([44]).
(xii) In this case, the Appeal Panel was satisfied that the Tribunal’s decision was affected by apprehended bias in circumstances where the Presiding Member clearly “invited” the Council to make an application for a restraint order under s 110. The Presiding Member was not aware at this time that the Council had already made such an application five days earlier ([45], [49]).
(xiii) The rule against apprehended bias is not transgressed if a decision-maker expresses a tentative view and retains an open mind: Johnson v Johnson [2000] HCA 48 at [13]; Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55 at [112]. However, in this case, the Presiding Member was not expressing a tentative view about an issue in the proceedings, but was inviting one party to institute proceedings against the other. This, in the Appeal Panel’s view, could logically give rise to an apprehension that the Presiding Member might not decide the case impartially ([51], [56]).
“Acting in concert”
(xiv) Section 110(3) of the GIPA Act describes the scope of the Tribunal’s power to make a “restraint order”. Such an order “may be made to apply to all access applications made by the person the subject of the order”, or “may be limited by reference to” certain defined criteria (e.g. applications to particular agencies, for particular kinds of information, etc.) ([64]).
(xv) There is no defined criterion in s 110(3) relating to applications not made by the subject person, but made by another person “in concert” with the subject person ([65]).
(xvi) Although the Tribunal would have an implied power to make the “in concert” order if it was “reasonably required or legally ancillary to the accomplishment of the specific remedies”, the test of necessity “cannot be stretched to encompass what is merely desirable or useful”, and was not satisfied in this case ([65]).
(xvii) Further, the difficulties associated with identifying an “in concert” application would make it impractical to enforce such an order ([65]).
Power to make an indefinite order
(xviii) The ordinary and grammatical meaning of s 110(3) is that the Tribunal may make an order limited by reference to a specific time period, or it may not. There is nothing in this section, or in the context or purpose of the GIPA Act, to prevent the Tribunal making a restraint order of indefinite duration ([66]).
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| | | Consumer and Commercial Division - Home Building
Decision of: Cole DCJ, Deputy President; G Blake AM SC, Senior Member
Catchwords: APPEAL – Building and Construction – Quantum Meruit
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| Consumer and Commercial Division - Strata
Decision of: A Bell SC, Senior Member; J Kearney, Senior Member
Catchwords: STRATA SCHEMES – s 126(1)(a) Strata Schemes Management Act 2015- meaning of “other alterations to common property directly affecting the owner’s lot”.
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| Consumer and Commercial Division - Home Building
Decision of: T Simon, Principal Member; D Fairlie, Senior Member
Catchwords: APPEAL – HOME BUILDING – onus of proof, credibility, leave to appeal
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| Guardianship Division
Decision of: Boland J AM ADCJ, Deputy President; M D Schyvens, Deputy President; Dr M Spencer, General Member (Community)
Catchwords: APPEAL – where purported appellant has no knowledge of filing of an appeal or an application for a stay
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| Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; G Blake AM SC, Senior Member
Catchwords: COSTS – party/party – amount claimed or in dispute general rule that costs follow the event – exceptions to general rule that costs follow the event – costs should follow the event
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| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; D Goldstein, Senior Member
Catchwords: APPEAL – Assessment of damages when residence sold before hearing and defects not rectified – Failure to exercise jurisdiction – Failure to deal with a claim for set-off
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| Consumer and Commercial Division - Consumer Claim
Decision of: G Curtin SC, Senior Member; P H Molony, Senior Member
Catchwords: APPEALS – extension of time – admission of new evidence – general principles – no case sufficient to extend time or admit new evidence demonstrated.
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| Consumer and Commercial Division - Social Housing
Decision of: P Durack SC, Senior Member; D Robertson, Senior Member
Catchwords: LEASES AND TENANCIES – residential tenancies legislation – tenant’s remedies for payment of rent and excess charges – onus on tenant to prove amounts not required to be paid
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| Consumer and Commercial Division - Social Housing
Decision of: P Durack SC, Senior Member; S Thode, Senior Member
Catchwords: RESIDENTIAL TENANCY.
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| Consumer and Commercial Division - Consumer Claim
Decision of: M Harrowell, Deputy President; J McAteer, Senior Member
Catchwords: EVIDENCE – Finding against the weight of evidence – Adverse inference – Whether it was open to Tribunal to draw adverse inference – error of law – failure to have regard to evidence
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| Consumer and Commercial Division - Motor Vehicles
Decision of: M Harrowell, Deputy President; Dr R Dubler SC, Senior Member
Catchwords: CONSUMER CLAIM – defective motor vehicle – whether the Tribunal erred in determining whether the application was brought within the limitation period – meaning of when causes of action “first accrued” under the Fair Trading Act 1987 – claim for refund upon rejection of goods under the Australian Consumer Law (NSW) – entitlement to reject goods in “rejection period” – factors relevant to determining when rejection period ends
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| Consumer and Commercial Division - Strata
Decision of: Dr R Dubler SC, Senior Member; S Thode, Senior Member
Catchwords: LANDLAW – Strata title – functions of owners corporation – consent to development application affecting common property – power of Tribunal to make an order requiring an owners corporation to give consent to a development application affecting common property – test to be applied in determining whether to make an order requiring an owners corporation to give consent to a development application affecting common property
LANDLAW - Strata title – owners corporation – functions of owners corporation – issue of keys – whether the owners corporation of a mixed commercial and residential strata scheme should be directed to provide the owners of a commercial lot with keys giving access to utility meters and keys giving access to residential areas.
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| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; M Gracie, Senior Member
Catchwords: APPEAL - Home Building Act - residential building contract - delay - suspension or abandonment of works - home warranty insurance - structural and non-structural works cover - quantum meruit - just and equitable - repudiation - termination - statutory warranty and intermediate contract terms - defective works - expert evidence - costs to complete - loss of rent
COSTS - provisional costs order.
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| Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; S Higgins, Senior Member
Catchwords: APPEAL – child protection – where Tribunal dismissed application for review of decision to remove child and cancel authorisation – whether Tribunal made an error of law and whether leave should be given to appeal on grounds other than a question of law.
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| Consumer and Commercial Division - Commercial
Decision of: Dr R Dubler SC, Senior Member; L Wilson, Senior Member
Catchwords: RESIDENTIAL TENANCY - leave to appeal sought - against the weight of the evidence - leave refused – no issue of principle.
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| Consumer and Commercial Division - Retirement Villages
Decision of: G Curtin SC, Senior Member; D Robertson, Senior Member
Catchwords: CORPORATIONS – community title – whether there is a retirement village as defined in the Retirement Villages Act – voluntary administration – whether there is a stay of proceedings - necessary parties to the proceedings – just, quick and cheap disposal of the real issues in dispute.
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| Consumer and Commercial Division - Home Building
Decision of: The Hon F Marks Principal Member; J Lonsdale Senior Member
Catchwords: APPEAL-COSTS-appeal withdrawn-costs jurisdiction under Rules 38 and 38A-costs follow the event-application for costs order against solicitors declined-application for indemnity costs declined – costs order made.
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| Guardianship Division
Decision of: Boland J AM ADCJ, Deputy President; A Suthers, Principal Member; Dr G Jamieson, Senior Member
Catchwords: APPEAL – appeal from decision of Guardianship Division on point of law – asserted error of law on review of financial management order – no error of law established
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| Consumer and Commercial Division - Commercial
Decision of: G K Burton SC, Senior Member; D Robertson, Senior Member
Catchwords: ENVIRONMENT AND PLANNING — Fences and boundaries — “Dividing fence” – Definition of fence – Dividing fence constructed adjacent to retaining wall - Whether retaining wall was “any foundation or support necessary for the support and maintenance of the fence”.
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| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; G Curtin SC, Senior Member
Catchwords: CIVIL PROCEDURE – hearings – ex parte – procedural fairness – appellant wrongly assuming the hearing would be conducted by telephone – no reasonable basis for that assumption – futility of a new trial – even on the appellant’s evidence the same decision would have been given
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| Consumer and Commercial Division - Strata
Decision of: N Hennessy, Deputy President ADCJ; A Suthers, Principal Member
Catchwords: APPEAL - PRACTICE AND PROCEDURE – meaning of s 64(1) of Civil and Administrative Tribunal Act 2013 (NSW) - where Tribunal made a non-publication order restricting publication of applicant’s name in connection with Tribunal proceedings– whether Tribunal made an error of law – fresh evidence - whether Appeal Panel should deal with the appeal by way of a new hearing.
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| Administrative and Equal Opportunity Division
Decision of: N Hennessy ADCJ, Deputy President; L Pearson, Principal Member
Catchwords: APPEAL – whether decision dismissing an application for contempt is an internally appealable decision under the Civil and Administrative Tribunal Act 2013 (NSW)
APPEAL – statutory interpretation – meaning of s 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW) – whether Tribunal has jurisdiction to entertain a new application for administrative review of the failure to make a decision following remittal under s 63(3)(d) – whether Tribunal has jurisdiction to entertain a new application for administrative review of a decision following remittal under s 63(3)(d)
APPEAL – apprehended bias – where Tribunal member advised respondent to institute proceedings against applicant – whether assurances as to impartiality overcame perception of bias.
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| Administrative and Equal Opportunity Division
Decision of: N Hennessy ADCJ, Deputy President; Dr Lucy, Senior Member
Catchwords: APPEAL - request for access to information under Government Information (Public Access) Act 2009 – where Tribunal affirmed agency’s decision – whether the Tribunal made an error of law – whether Appeal Panel should give permission to appeal on ground other than a question of law.
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| Consumer and Commercial Division - Home Building
Decision of: P Durack SC, Senior Member; G Sarginson, Senior Member
Catchwords: CONSUMER LAW---Assessment of loss for non-compliance with statutory guarantees in respect of the supply of services----Not limited by contract price or extent of services the subject of the contract---Error of law.
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| Occupational Division
Decision of: Armstrong J, President; L Pearson, Principal Member
Catchwords: APPEAL - real estate agent’s licence – application for renewal – offences involving dishonesty – discretion to ignore offences – whether error of law in exercise of discretion – whether leave to appeal should be granted.
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| Consumer and Commercial Division - Motor Vehicles
Decision of: A Suthers, Principal Member; G Sarginson, Senior Member
Catchwords: CONSUMER LAW---Consumer guarantees---Due care and skill---Causation---Assessment of evidence---Whether findings of fact against weight of evidence---Whether decision fair and equitable.
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| Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President
Catchwords: Administrative Law – Civil & Administrative Tribunal (NSW)
Appeal – application for stay pending appeal – refused – exercise of discretion.
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| Consumer and Commercial Division - Social Housing
Decision of: Dr R Dubler SC, Senior Member; D Robertson, Senior Member
Catchwords: LEASES AND TENANCIES – Residential tenancies legislation – social housing – reduction in rent by reason of reduction in services or facilities – obligation to provide quiet enjoyment.
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| Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; D Robertson, Senior Member
Catchwords: ADMINISTRATIVE LAW – administrative tribunals - Civil and Administrative Tribunal (NSW) – duty to give reasons for decision – reasons inadequate – appeal allowed
APPEAL AND NEW TRIAL – Civil and Administrative Tribunal Act 2013 (NSW), s 80(3) – whether to remit proceedings to the Consumer and Commercial Division or deal with the appeal by way of new hearing - proceed by way of a new hearing in this case
PROCEDURE – civil – judgments and orders amending, varying and setting aside – setting aside Civil and Administrative Tribunal Regulation 2013 (NSW), cl 9 – principles – conditions for discretion to be enlivened – principles for exercise of discretion -whether a reasonable opportunity to be heard – order set aside.
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| Decision of: T Simon, Principal Member; S Higgins, Senior Member
Catchwords: COSTS – costs of appeal – whether special circumstances warrant an award of costs – appellant withdrew appeal and application for a stay immediately upon being informed that the Tribunal did not have jurisdiction to review the determination of a cost assessor arising from a cost order made by the Tribunal.
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| Administrative and Equal Opportunity Division
Decision of: A Suthers, Principal Member
Catchwords: APPEALS – access to government information – matters which may properly be the subject of interlocutory applications – requirement to give reasons for procedural directions.
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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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