| | | NCAT Appeal Panel Decisions Digest Issue 7 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 August 2020:
- ZOF v NSW Trustee and Guardian [2020] NSWCATAP 167 - in which the Appeal Panel allowed an appeal from the Guardianship Division on the basis that the Tribunal below failed to take into account a mandatory consideration in deciding to make a financial management order, specifically, the “importance of preserving the… cultural and linguistic environment” of the appellant (an Aboriginal man).
- NSW Land and Housing Corporation v Bradshaw [2020] NSWCATAP 172 - in which the Appeal Panel allowed an appeal from the Consumer and Commercial Division on the basis that there was new evidence, not reasonably available at first instance, and not addressed by the respondent, which heavily weighed against the Tribunal’s conclusion that the exception to making a mandatory termination order in s 154D(3)(b) of the Residential Tenancies Act 2010 applied.
- Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 - in which the Appeal Panel allowed an appeal from a decision in the Administrative and Equal Opportunity Division, holding that the Tribunal (a) misapplied ss 53 and 105 of the Government Information (Public Access) Act 2009, and (b) lacked jurisdiction to review a decision made by the respondent after the appellant applied to the Tribunal for review of an earlier decision, where the later decision was not made pursuant to a remittal under s 65 of the Administrative Decisions Review Act 1997.
- Minifie v Maxwell [2020] NSWCATAP 175 - in which the Appeal Panel allowed an appeal from a communication made to the appellant by a Deputy Registrar, informing the appellant that the Tribunal was functus officio, in circumstances where a previous Appeal Panel had made orders allowing for the Tribunal to consider further applications by the parties to vary the underlying orders.
- Zhou v MacMahon Street Investments Pty Ltd [2020] NSWCATAP 178 - in which the Appeal Panel allowed an appeal from the Consumer and Commercial Division on the basis that the Tribunal erred (a) in its interpretation of s 65(3A) of the Residential Tenancies Act 2010, and (b) in finding that it was unable to calculate the quantum of compensation payable because the evidence of loss was "unclear".
Each case title is hyperlinked to the full decision available on NSW Caselaw.
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| Guardianship Division Armstrong J, President; M D Schyvens, Deputy President; L Porter, General Member (Community)
In sum: The Appeal Panel allowed an appeal from the Guardianship Division of NCAT on the basis that the Tribunal below failed to take into account a mandatory consideration in deciding to make a financial management order under the Guardianship Act 1987 (NSW). Specifically, the Tribunal failed to take into account the “importance of preserving the… cultural and linguistic environment” of the appellant, particularly in relation to the issue of whether a financial management order was in the appellant’s best interests. The Appeal Panel decided to deal with the appeal by way of a new hearing and to permit new evidence, including a purported expert report about the cultural norms and practices surrounding the treatment of money in Indigenous households and communities.
Facts: The appellant, ZOF, is a 59 year old Ngarbal man, and a survivor of the Stolen Generations. He now lives with his auntie, ZOH, in regional NSW. It was uncontested that he has a diagnosis of schizophrenia ([4]-[5]).
In 2018, ZOF received a $75,000.00 payment as a recipient of the NSW Stolen Generations Reparations Scheme. That money was disbursed and spent predominantly for the benefit of ZOF’s family and friends ([6]-[7]).
In February 2019, the Tribunal received an application for a financial management order from ZOG, who identified herself as ZOF’s cousin. ZOG sought an order that the NSW Trustee and Guardian be appointed as ZOF’s financial manager, stating that a further lump sum payment was expected soon, and she was concerned that other people in ZOF’s life would take the second lump sum payment from him ([9]).
In April 2019, the Tribunal made an interim financial management order under s 25H of the Guardianship Act appointing the Trustee and Guardian as ZOF’s financial manager for a period of six months, excluding ZOF’s pension income ([10]).
In October 2019, a differently constituted Tribunal conducted a further hearing, at the conclusion of which it ordered under ss 25E, 25F and 25M(1)(b) of the Guardianship Act that ZOF’s estate, excluding his Centrelink income, be managed by the Trustee and Guardian ([14]). ZOF sought to appeal this decision to the Appeal Panel ([23]).
ZOF also sought leave to rely on fresh evidence, including a report by Dr W, who completed a PhD “exploring the historical, cultural and familial context of money as it flows through indigenous households in remote, regional and urban Australia”, and a letter from Carroll O’Dea Lawyers regarding a potential claim against the State of NSW arising from ZOF’s treatment when he was a ward of the State ([36]).
Held (deciding to deal with the appeal by way of a new hearing):
Whether there was a failure to take a mandatory consideration into account – YES
(i) All of the principles found in s 4 of the Guardianship Act are mandatory considerations for the Tribunal when making decisions about applications for financial management: ZGM v ZGN [2018] NSWCATAP 101 at [39]. It was evident that the Tribunal below was acutely aware of the need to observe these considerations, in particular, the importance of preserving the subject person’s cultural background (s 4(e)) ([54]-[55]).
(ii) While the Tribunal was clearly “alive to the significance of taking account of the appellant’s cultural norms”, its reasons suggested that the Tribunal “only contemplated the relevance of the appellant’s culture in relation to the determination of his capacity”, and not when considering whether it was in his best interests to make a financial management order, or who to appoint as his manager ([58]).
(iii) The Tribunal was required to consider the preservation of the appellant’s cultural environment for each legislative element leading it to exercise the discretion to make the financial management order – not limited to determining the appellant’s capacity ([65]).
(iv) The Tribunal’s reasons indicated that, because it did not have any independent expert evidence on the issue of whether it was “culturally appropriate” for the appellant to distribute his money in the way he did, and because it perceived there was “conflicting evidence” on this topic, it ultimately excluded any cultural factors in determining the appellant’s capacity to manage his own affairs ([61]).
(v) While an expert report on cultural norms relevant to wealth sharing would have been “of benefit” in the proceedings, such reports will rarely be available in guardianship proceedings. It is the expertise of the Tribunal’s members, and the legislative imperatives of ss 36 and 38 of the NCAT Act (particularly when exercising a protective jurisdiction) that empower the Tribunal to be as inquisitive as is appropriate to elicit evidence on relevant matters ([64]).
(vi) Given the significance of culture in the proceedings, it was incumbent on the Tribunal to take steps to elicit further and better evidence about the cultural norms and values relevant to the issue of managing the appellant’s financial affairs ([61]).
(vii) Further, a review of the sound recording of the hearing did not support the Tribunal’s conclusion that there was “conflicting evidence” as to the norms of the appellant’s and his family’s culture in relation to sharing money ([63]).
(viii) In some circumstances, the ramifications of making a financial management order for a person’s cultural and linguistic environment could be so significant that, despite the Tribunal being satisfied that the person is not capable of managing their financial affairs, it could not conclude that making an order is in the person’s best interests ([70]).
Whether the failure could have materially affected the decision
(ix) It is not sufficient for the decision-maker to fail to take a relevant consideration into account – the factor must meet a standard of significance with respect to its impact on the final decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at [15] ([71]).
(x) In this matter, where the appellant’s culture was clearly important to him and his family members, even when they were in conflict on other matters, the Tribunal’s failure to take into account cultural considerations in exercising its discretion to make a financial order could not be characterised as insignificant – particularly in relation to the issue of whether the order was in the appellant’s best interests ([72]).
Other grounds
(xi) The appellant’s additional grounds of appeal – that the Tribunal erred in applying the relevant “test” for incapacity for self-management, that the Tribunal failed to afford the appellant procedural fairness, and that the Tribunal took into account an irrelevant consideration (the appellant’s reluctance to participate in the hearing) – were not upheld ([79], [84], [90], [97]).
Whether the appeal should be dealt with by way of a new hearing
(xii) Having concluded that the Tribunal below erred in not taking account of a mandatory consideration, the Appeal Panel decided to deal with the appeal by way of a new hearing ([103]).
(xiii) Having regard to s 4 of the Act and s 36 of the NCAT Act, proceeding by way of a new hearing and permitting the new evidence to be considered was the most appropriate course of action ([104]).
(xiv) Whilst yet to be tested and considered, on its face, Dr W’s expert report was not available to the Tribunal below, and might allow for greater consideration of the relevance of ZOF’s cultural background in relation to the formation and/or continuation of the current order ([105]).
(xv) Similarly, the Carroll O’Dea letter could have impacted the Tribunal’s understanding that there was an imminent lump sum payment coming to ZOF, which was its primary motivation for making the financial management order ([106]).
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| Consumer and Commercial Division - Social Housing
P Durack SC, Senior Member; M Gracie, Senior Member
In sum: The Appeal Panel granted leave to appeal and allowed an appeal from the Consumer and Commercial Division, on the basis that there was new evidence, not reasonably available at first instance, and not addressed by the respondent, which heavily weighed against the Tribunal’s conclusion that the exception to making a mandatory termination order in s 154D(3)(b) of the Residential Tenancies Act 2010 (NSW) (the RT Act) applied.
Facts: The appellant and respondent are parties to a residential tenancy agreement in respect of social housing premises in Bateau Bay ([1]).
In the decision below, the Tribunal held that the conditions for making a mandatory termination order in s 154D(1)(c)(i) of the RT Act were satisfied – that is, that the appellant had made an application for a termination order under s 91, and that the tenant or another person occupying the premises (in this case, the father of the respondent’s children) had caused or permitted the premises to be used to store a firearm without a licence or permit ([6]-[7]).
However, the Tribunal also held that the exception in s 154D(3)(b) applied, because Aaron Reid, the respondent’s son, was a person with a disability who occupied the premises, and a termination order would likely result in undue hardship to him ([9]).
This finding was entirely based on oral evidence given by the respondent on the day of the hearing, of which the appellant had no prior notice ([12]).
It followed from this finding that it was not mandatory for the Tribunal to make a termination order. Rather, it had a discretion as to whether to make the order under s 91(1) of the RT Act, having regard to the matters set out in s 154E. In exercising that discretion, the Tribunal decided not to make a termination order, and dismissed the appellant’s application. The appellant appealed ([1], [5]).
The appellant appealed, and sought to rely on fresh evidence, including an affidavit by a Senior Constable who was in charge of an investigation which resulted in Aaron Reid being charged with numerous “supply of drugs” offences. The affidavit stated that one of the conditions of Mr Reid’s bail was that he was to reside at a particular unit (not the respondent’s premises) ([5], [14]-[15]).
Held (granting leave to appeal, allowing the appeal, setting aside the decision below and making orders for termination and possession):
(i) In the case of an appeal from the Consumer and Commercial Division, one of the grounds on which leave to appeal may be granted is that “the appellant may have suffered a substantial miscarriage of justice because… significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)”: cl 12, Sch 4 to the NCAT Act ([31]).
(ii) Clearly, the affidavit from the Senior Constable provided significant new evidence in respect of the appellant’s application for a termination order. His statement that Aaron Reid was required by a bail condition to reside somewhere other than the residential premises was evidence of considerable weight against the Tribunal’s conclusions that Mr Reid was an occupant of the residential premises at the relevant time, and would suffer undue hardship if a termination order was made ([32]).
(iii) It was also capable of undermining the credibility of the respondent’s evidence that Aaron Reid resided at the premises, if the inconsistency was not satisfactorily explained, in circumstances where the respondent bore the onus of proving that the exception in s 154D(3) applied ([32]).
(iv) The Appeal Panel was satisfied that the evidence was not reasonably available to the appellant at first instance, because the appellant only became aware of Aaron Reid’s bail conditions after the first instance hearing, and was also unaware prior to that hearing that the respondent would give evidence about Mr Reid residing at the premises ([33]).
(v) Accordingly, it decided to admit the new evidence, and concluded that the appellant might have suffered a substantial miscarriage of justice, in that the Tribunal was unaware of important evidence which, if true, would have favoured the need to make a termination order ([33]-[34]).
(vi) Leave to appeal was granted, and the Appeal Panel decided to deal with the appeal by way of a new hearing ([36]).
(vii) Despite being given the opportunity to do so, the respondent did not seek to present any evidence or submissions on the appeal, in light of the new evidence about the bail condition, to establish that the exception in s 154D(3) applied ([38]-[42]).
(viii) In these circumstances, the Appeal Panel found there was no credible material to support a conclusion that Aaron Reid was an occupant of the premises, or that he would suffer undue hardship if the tenancy agreement were termination ([43]).
(ix) Accordingly, the making of a termination order was mandatory, and the Appeal Panel proceeded to make that order, in addition to an order for possession (suspended for 28 days) ([44]-[47]).
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| Administrative and Equal Opportunity Division
A Britton, Principal Member
In sum: The Appeal Panel allowed an appeal from a decision in the Administrative and Equal Opportunity Division relating to an access application under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act), and decided to deal with it by way of a new hearing. The Appeal Panel held that the Tribunal had misapplied ss 53 and 105 of the GIPA Act by treating the appellant as having a “practical onus” of establishing that there were reasonable grounds to believe that the information requested was held by the respondent, before assessing whether the respondent made reasonable efforts to search for that information. In addition, the Appeal Panel held that the Tribunal lacked jurisdiction to review a second decision made by the respondent after the appellant had applied to the Tribunal for review of its first decision, in circumstances where the second decision was not made pursuant to a remittal under s 65 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).
Facts: In September 2018, Ms Wojciechowska reported to NSW Police that trees on her property had been removed without her permission. Dissatisfied with their response, she made a complaint about the attending police officers to the Commissioner of Police, which was dismissed ([1]).
Following an access application under the GIPA Act, Ms Wojciechowska obtained copies of the entries made in the Computer Operational Policing System (COPS) by the police officers who responded to her report ([2]). According to Ms Wojciechowska, those entries described her as a “person of interest”, and contained a series of “lies” which she found “shocking and devastating” ([3]).
She then made a further access application under the GIPA Act, seeking information relating to, among other things, guidelines used by the police concerning the use of the terms “victim” and “person of interest” in COPS entries ([3]).
A delegate of the Commissioner identified a single document, the “COPS User Guide”, as falling within the information requested, but refused to grant Ms Wojciechowska access to that document (the Original Decision) ([3]).
Ms Wojciechowska applied to NCAT for review of the Original Decision. After her application, a delegate of the Commissioner made a further decision granting access to the COPS User Guide (the Supplementary Decision) ([4]).
Following review, the Tribunal decided to affirm the Supplementary Decision. Ms Wojciechowska appealed, pressing her argument that the Commissioner had failed to undertake reasonable searches for the information requested in her application (i.e. other than the COPS User Guide) ([5], [15]).
Held (allowing the appeal in part):
Whether Tribunal misapplied ss 53 and 105 of the GIPA Act – YES
(i) In its decision, the Tribunal stated that Ms Wojciechowska “bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information within the scope of the application exists which has not been supplied”, and said it was “not satisfied” that she had established such reasonable grounds ([28]).
(ii) The Tribunal set out two questions that must be answered when reviewing a decision that an agency does not hold certain information ([30], [32]):
a. whether there are reasonable grounds to believe that the requested information exists and is held by the agency, and if so,
b. whether the search efforts made by the agency to locate such information were reasonable in all the circumstances of the case.
(iii) Having concluded that the answer to the first question was “no”, the Tribunal did not proceed to make any findings about whether the searches undertaken by the Commissioner satisfied the obligation imposed by s 53 of the GIPA Act ([39], [46]).
(iv) Ms Wojciechowska contended that this was a misapplication of s 105 of the GIPA Act, which provides that the burden of establishing that a decision under review is justified lies on the agency ([28]).
(v) The Appeal Panel held that, although the “two-step approach” set out by the Tribunal was based on a “long line of authority” followed by NCAT and the former Administrative Decisions Tribunal, that test is plainly wrong ([31], [39], [47]).
(vi) There is no warrant for interpreting s 53 of the GIPA Act to mean that the obligation to undertake “reasonable searches” is enlivened only where the access applicant establishes to the satisfaction of the agency (or the Tribunal on review) that “there are reasonable grounds to believe that the requested information exists and is held by the agency”. Further, the two-step approach is “at odds with s 105 of the GIPA Act which places the burden on the agency of establishing that its decision that information is not held is justified” ([38], [40]).
(vii) The task for the Tribunal when reviewing a decision that requested information is not held by the agency is to ([44]):
a. Identify, on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53 (whether reasonable searches were undertaken);
b. Determine whether the agency has proved any relevant factual issues on the balance of probabilities;
c. Consider any evidence which may have emerged since the agency made its decision, which might tend to provide that the information is held by the agency;
d. Applying those findings, decide what the correct or preferable decision is;
e. Affirm, set aside or vary the agency’s decision.
(viii) Because of the Tribunal’s erroneous application of ss 53 and 105, the Appeal Panel decided to deal with the appeal by way of a new hearing, and made directions for the filing of submissions, including the Commissioner’s answers to questions a-e above ([49], [135]).
(ix) The Appeal Panel also considered the remaining grounds of appeal which could be relevant to re-determining the application for review, or raise issues of significance ([49]).
Whether the Tribunal erred in failing to consider the Original Decision, and lacked jurisdiction to review the Supplementary Decision – YES
(x) The Appeal Panel held that the Tribunal did not have jurisdiction to review the Supplementary Decision, because it was not the decision the subject of Ms Wojciechowska’s application for review, nor was it made on reconsideration following remittal under s 65 of the ADR Act ([69]).
(xi) The Appeal Panel was not persuaded that, because the parties had consented, the Tribunal acquired jurisdiction to review the Supplementary Decision. The parties’ common position does not relieve a court of tribunal of its obligation of satisfying itself that it has jurisdiction ([68]).
Other grounds, including issues re procedural fairness and apprehended bias
(xii) Ms Wojciechowska’s other grounds of appeal – including that the Tribunal misapplied the rule in Jones v Dunkel, that the Tribunal failed to consider relevant material, that she was denied procedural fairness, and that the decision was affected by apprehended bias – were not upheld ([57], [76], [89], [107], [123], [125]-[126], [133]).
(xiii) With respect to the appellant’s argument that the decision was affected by apprehended bias because the Senior Member allegedly “laughed” on two occasions when the appellant was giving evidence, the Appeal Panel:
a. noted the “double might” test for apprehended bias, being whether the fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to deciding the matter ([79]-[81]);
b. having listened to the sound recording of the hearing below, said it was not persuaded that the Member could be heard to laugh as alleged ([101]);
c. stated that, being fair-minded, the observer would have regard to the entirety of the Member’s conduct and not take the two isolated instances on which Ms Wojciechowska relie[d] out of context” ([106]); and
d. found it was not persuaded that the observer might reasonably apprehend that the Member might not bring an impartial and unprejudiced mind to the determination of the application, even if they assumed the Member laughed as alleged ([107]).
(xiv) With respect to the appellant’s argument that the decision was affected by apprehended bias because the Senior Member previously worked for the Crown Solicitor, the Appeal Panel commented that:
a. while the “principles which govern the conduct of judicial officers and Tribunal members are not the same”, the “guidelines governing the conduct of judicial officers”, including the Guide to Judicial Conduct (3rd edition), “provide useful guidance in identifying the types of associations that might disqualify a Member from determining an application” ([110]);
b. the Guide to Judicial Conduct stated that “past professional association with a party as a client is not of itself a reason for disqualification unless the judge has been involved with the subject matter of the litigation prior to appointment or unless the past association gives rise to some other good reason for disqualification”. Further, “friendship or past professional association with counsel or a solicitor is not generally to be regarded as sufficient reason for disqualification” ([110]);
c. the NCAT Member Code of Conduct contains provisions requiring that Tribunal Members “perform their duties independently”, and also provisions relating to part-time Members’ external professional practice ([112]);
d. there is no rule or legal principle prohibiting a judicial officer or Tribunal member from hearing a matter where they were previously employed by a legal firm which represents a party to proceedings, or had previous professional association with a party’s legal representative ([122]);
e. while a fair-minded lay observer might not be familiar with the NCAT Member Code of Conduct, they would be aware that NCAT Members, like judicial officers, are required to perform their duties independently and fairly ([122]); and
f. in this case, the Appeal Panel was not persuaded that the fair-minded lay observer might apprehend the Member might not bring an impartial mind to the matter by reason of his former employment with the Crown Solicitor ([123]).
(xv) The Appeal Panel noted that, where a claim of apprehended bias relies on multiple instances of conduct, it is necessary to consider those instance both individually and cumulatively to determine whether they were capable of giving rise to a reasonable apprehension of bias ([83]).
(xvi) In this case, the Appeal Panel did not consider that any of the appellant’s claims, considered individually or assessed together, were capable of giving rise to a reasonable apprehension of bias ([126]).
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| Consumer and Commercial Division - Commercial The Hon F Marks Principal Member; D Robertson Senior Member
In sum: The Appeal Panel allowed an appeal from a communication made to the appellant informing the appellant that the Tribunal was functus officio. Although the communication was made by a Deputy Registrar, the Appeal Panel found that the decision was made by the Senior Member, among other reasons, because it could be presumed that the Deputy Registrar would not act outside of her authorised functions under the NCAT Act and Rules. The Appeal Panel held that the Tribunal was not functus officio in circumstances where a previous Appeal Panel had made orders allowing for the Tribunal to consider further applications by the parties to vary the underlying orders.
Facts: Since 2016, the appellant, Ms Minifie, and the respondents, Mr and Ms Maxwell, have been in dispute concerning the construction of a dividing fence between their adjoining properties ([1]).
In August 2017, Senior Member Charles made orders under the Dividing Fences Act 1991 (NSW) regarding the construction of the fence ([2]). The appellant lodged an appeal from that decision, which was subsequently withdrawn. In September 2017, the appellant began erecting a fence on her own property, in a manner inconsistent with the orders made ([3]). The respondents filed an application for renewal of the original proceedings, which resulted in further orders made by Senior Member Boyce in September 2019 (the September 2019 orders) ([5]).
The appellant appealed from the September 2019 orders. A differently constituted Appeal Panel dismissed that appeal. Significantly, that Appeal Panel ordered that “any further application by either party to vary the [September 2019 orders] in respect of time for compliance or otherwise is to be made in writing to the Tribunal and referred to Senior Member Boyce for determination, or if Senior Member Boyce is not available, a Principal Member of the Tribunal” (Order 4) ([10]).
On 25 March 2020, the appellant wrote to the Registrar seeking referral of certain matters to Senior Member Boyce pursuant to Order 4. On 5 May 2020, Senior Member Boyce issued a decision holding that there was no jurisdiction to vary the orders previously made by him, which the Appeal Panel had confirmed on appeal ([13]).
On 15 May 2020, the appellant wrote again to the Registrar seeking a “stay or suspension” of her obligation to contribute to the cost of the dividing fence (which had then been completed, but according to her, not in compliance with the September 2019 orders) ([15]).
A Registry officer advised the appellant that the decisions of the Tribunal are “final and binding” ([16]). After the appellant sent a further email on 22 May complaining that the matter had not been referred to Senior Member Boyce, a Deputy Registrar informed the appellant that her correspondence had been referred to Senior Member Boyce “for consideration”, and subsequently on 25 May, that “a decision has been made in relation to these matters so the Tribunal and Member are functus officio” ([17]-[18]).
The appellant lodged an appeal in respect of the communication made to her on 25 May, challenging the Tribunal’s decision to refuse to deal with her application regarding her contribution to the cost of the fence ([19]-[20]).
Held (allowing the appeal and referring the matter to Senior Member Boyce for determination):
Whether the Tribunal was wrong in telling the appellant that it was functus officio – YES
(i) Whether the Tribunal was functus officio, that is whether it had fulfilled its function or duty and was unable to act further or again, involved a question of law ([21]).
(ii) Having regard to the provisions of Order 4, this Appeal Panel considered that the purpose and intent of that order was to accommodate future circumstances that might require a variation of the orders made in September 2019, as confirmed and varied by the previous Appeal Panel. One of those orders was the requirement that the appellant pay half the cost of the dividing fence ([24])-[25].
(iii) The question was whether the Tribunal had, by 22 May 2020, completed dealing with the underlying application for renewal by making orders which completely determined the proceedings between the parties ([26]).
(iv) Order 4 clearly granted either party liberty to apply with respect to the matters described in the terms of that order, being matters “in respect of time for compliance or otherwise”. The use of the words “or otherwise” enabled an application to be made provided it was directed to a variation of the September 2019 orders. Such an application might extend to any matter which might arise in the future after the September 2019 orders were made ([26]).
(v) Seen in this way, the Tribunal had not completely and finally dealt with the underlying orders, and was not functus officio with respect to the appellant’s request for a variation of the order requiring her to pay for half of the cost of the fence ([26]).
(vi) Accordingly, the information conveyed to the appellant on 25 May 2020 was incorrect, in a respect which constituted an error of law ([27]).
Whether the Deputy Registrar’s email was a decision against which an appeal could be brought – YES
(vii) The ability to institute appeal proceedings will only respond to a decision which is appealable. This required consideration of whether the information conveyed by the Deputy Registrar on 25 May constituted a “decision” of the Tribunal which could be the subject of an appeal ([29]).
(viii) Section 32 of the NCAT Act provides that the Tribunal has internal appeal jurisdiction over decisions made “by the Tribunal”, and certain decisions made “by a registrar” (limited to those declared to be internally appealable by the NCAT Act or Rules) ([28]).
(ix) A “decision” is defined in s 5(1)(a) of the NCAT Act as including “refusing to make an order or determination”. Section 5(2)(c) then provides that a “refusal of a decision-maker to make a decision … because the decision-maker considers that the decision concerned cannot lawfully be made …. is taken to be a decision … to refuse to make the decision requested” so as to come within s 5(1)(a), and thereby constitute a decision for the purposes of ss 32 and 80 ([30]-[31]).
(x) Section 6 of the NCAT Act defines “decision-maker” as “the person or body that makes (or is taken to have made) the decision” ([32]).
(xi) In the Deputy Registrar’s email on 22 May, the Deputy Registrar informed the appellant that her request had been referred to Senior Member Boyce. From this, it could be inferred that the further response communicated on 25 May was the response of Senior Member Boyce (and not the Deputy Registrar herself) ([33]).
(xii) Registrars’ functions are limited by s 23 of the NCAT Act and rule 41 of the NCAT Rules, and it could be presumed that the Deputy Registrar would not undertake any function which she was not authorised to fulfil under these provisions, including deciding of her own accord that the Tribunal was functus officio. This strengthened the Appeal Panel’s conclusion that the decision was made by Senior Boyce, and merely conveyed to the appellant by the Deputy Registrar ([33]-[34]).
(xiii) Accordingly, the decision was an appealable decision of the Tribunal, being an “ancillary decision” as defined in s 4 of the NCAT Act (“a decision concerning whether the Tribunal has jurisdiction to deal with a matter”). Pursuant to s 80 of the NCAT Act, an appeal lay as of right because the decision involved a question of law ([36]).
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| Consumer and Commercial Division - Tenancy
G Curtin SC, Senior Member; D Robertson, Senior Member
In sum: The Appeal Panel allowed an appeal from the Consumer and Commercial Division, on the basis that the Tribunal had erred in finding that there had been no breach of the residential tenancy agreement because of its mistaken interpretation of s 65(3A) of the RT Act. Further, the Appeal Panel found that the Tribunal had erred in finding that, because the evidence about how much loss the tenant had suffered was unclear, it was unable to calculate the quantum of any compensation payable.
Facts: The appellant (tenant) and respondent (landlord) were parties to a residential tenancy agreement for an apartment located in Hurstville ([1]). After the tenant vacated the apartment, the landlord claimed $616 from her bond for certain cleaning and repair work in the kitchen, including repainting the cupboard doors and ceiling ([2]).
The tenant commenced proceedings in the Tribunal asserting that the landlord was not entitled to the $616, and alleging that the landlord was liable to $4,648 worth of damage to items of her clothing, caused by a water leak in the apartment ([3]).
The Tribunal substantially found in the tenant’s favour in relation to the deduction from the bond, finding that the landlord was only entitled to $150 for cleaning ([4]).
However, the Tribunal rejected the tenant’s claim for compensation for damage to her clothing, finding that there was no breach of the tenancy agreement or the RT Act. Further, it held that the tenant had not established, on the balance of probabilities, a reasonable amount of compensation for any of the items, because there was a “lack of clear evidence” about what items were damaged, “no evidence” of the original cost of the items, and “very limited evidence” of the age of the items ([5], [21]-[22]).
The tenant appealed in respect of both the bond claim and the compensation claim ([24]).
Held (allowing the appeal in relation to the compensation claim, and remitting the matter to the Tribunal differently constituted):
Whether the Tribunal erred in finding there was no breach of the lease – YES
(i) The Tribunal held that in order for the appellant to succeed with her compensation claim for damage to her clothing she needed to establish that the respondent had breached the residential tenancy agreement ([11]).
(ii) Although it did not say so expressly, it was apparent that the Tribunal held there was no breach of cl 18.3 of the lease (the term implied by s 63(1) of the RT Act, being the obligation to “provide and maintain the residential premises in a reasonable state of repair”) unless the conditions of s 65(3A) were satisfied, namely that the landlord “had notice of the need for the repair, or ought reasonably to have known of the need for the repair”. This was incorrect ([35]).
(iii) Section 65(3A) is directed to the obligation on landlords to carry out repairs, not to damage to a tenant’s possessions which may be caused by a breach of the term implied by s 63(1) ([36]).
(iv) The proper test the Tribunal should have applied was that set out in cl 18.3 of the lease (reflecting the terms of s 63(1)) namely, whether the respondent breached its obligation to keep the premises in a reasonable state of repair considering the age of, the rent paid for and the prospective life of the premises. The Tribunal did not apply that test, and the Appeal Panel could not answer that question on the material before it ([37]-[38]).
Whether the Tribunal erred in its finding about evidence of quantum – YES
(v) The Tribunal also erred in finding that the tenant’s case failed because there was a lack of clear evidence of quantum, such that the tenant had not established a reasonable amount of compensation for any items ([39]).
(vi) In so finding, the Tribunal failed to apply the correct legal principles ([40]).
(vii) It is well settled that, provided that some evidence of loss or damage has been produced, difficulty of assessment is not a bar to the assessment of damages, and does not relieve a court from estimating them as best it can: Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 at [57]-[58]; Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117; Searle v Commonwealth of Australia [2019] NSWCA 127 at [203]; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83; [1994] HCA 54 ([42]-[43]).
(viii) In this case, some evidence of loss was given, including photographs of the damaged clothes, oral evidence of the age of various items of clothing, and evidence of the cost of replacing that clothing (constituted by photographs of similar items from clothing websites) ([9], [44]).
(ix) It was true that the evidence was not clear, but the absence of clear evidence does not equal the absence of any evidence. There was some evidence of quantum, and as difficult as it may have been to assess the damages, the Tribunal ought to have done the best it could with the evidence before it ([45]-[46]).
(x) The tenant’s appeal with respect to the bond claim was not successful, but the claim in relating to the damaged clothing was remitted to be reheard by the Tribunal differently constituted ([47]-[49]).
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| | | Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; D Robertson, Senior Member
Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — In accordance with the law - Building Code of Australia – Whether issue of interim occupation certificate creates an irrebuttable presumption that the building is BCA compliant – Whether attachment of “Biowood” to the exterior walls constituted an “undue risk of fire spread via the façade of the building” – Words and phrases – “undue risk”.
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| Consumer and Commercial Division - Consumer Claim
Decision of: K Ransome, Senior Member; D Charles, Senior Member
Catchwords: APPEAL – consumer claim – interpretation of travel insurance policy – no error of law – no substantial miscarriage of justice – leave to appeal refused.
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| Administrative and Equal Opportunity Division
Decision of: Cole DCJ, Deputy President; J Kearney, Senior Member
Catchwords: ADMINISTRATIVE LAW – Privacy – appeal from an interlocutory decision of the Tribunal – leave to appeal - application for internal review of conduct – meaning of ‘the time the applicant first became aware of the conduct the subject of the application’ – principal and agent – imputed knowledge.
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| Consumer and Commercial Division - Tenancy
Decision of: Dr R Dubler SC Senior Member; S Thode Senior Member
Catchwords: APPEAL – Residential Tenancy – Appeal from Consent Directions - Error of law.
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| Guardianship Division
Decision of: Armstrong J, President; M D Schyvens, Deputy President; L Porter, General Member (Community)
Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Guardianship Division – internal appeal – financial management order – question of law – failure to take into account a mandatory consideration – s 4(e) of the Guardianship Act 1987 – importance of preserving subject person’s family relationships – recognition of the cultural and linguistic environments of the subject person – Aboriginal subject person – Stolen Generations – Ngarbal man – recipient of Stolen Generations Reparations Scheme – management of large lump sum – cultural practice of sharing and caring – minimal evidence – Tribunal’s inquisitorial power to elicit evidence – best interests of the subject person – discretion to deal with Appeal by way of new hearing.
PROCEDURAL FAIRNESS – right to an adjournment – whether Tribunal failed to afford procedural fairness by failing to advise a party of right to an adjournment – party legally represented – party on notice as to the kind of evidence relevant to issues – no suggestion further and better evidence was available in the event further time was allowed – no adjournment requested – no duty to offer an adjournment – ground of appeal rejected.
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| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; G Curtin SC, Senior Member
Catchwords: APPEALS – from findings of fact – credibility of witnesses – limitation on appeal where findings of fact based on demeanour of witnesses – procedural fairness – bias or apprehension of bias – prior professional association as members of the same chambers – insufficient of its own – requirements to be satisfied
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – definition of dwelling - for use as a residence or for use in conjunction with a dwelling – time for assessment – quantum meruit – benefit when not the owner of the land.
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| Consumer and Commercial Division - Retirement Villages
Decision of: N Hennessy ADCJ, Deputy President; L Pearson, Principal Member
Catchwords: APPEAL – time limits for appeals from costs decisions in the Consumer and Commercial Division – nature of appeal from costs decision under s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) – appeal from discretionary decision – applicability of rules in House v The King.
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| Consumer and Commercial Division - Home Building
Decision of: P Durack SC, Senior Member; D Robertson, Senior Member
Catchwords: CONTRACT – parties to unwritten home building contract – quantum meruit claim- proof of reasonable value- relevance of contract prices- lack of proof of reasonable value for part of the works.
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| Consumer and Commercial Division - Residential Communities
Decision of: A P Coleman SC, Senior Member; J Kearney, Senior Member
Catchwords: APPEAL – extension of time to appeal – residential proceedings – length of delay short -material but not substantial prejudice to Respondent - poor prospects of success.
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| Consumer and Commercial Division - Social Housing
Decision of: P Durack SC, Senior Member; M Gracie, Senior Member
Catchwords: LEASES - residential tenancy-termination of social housing tenancy-whether termination mandatory or discretionary-fresh evidence about whether a person was an occupant of the premises and whether that person would suffer hardship if order made to terminate tenancy.
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| Administrative and Equal Opportunity Division
Decision of: A Britton, Principal Member
Catchwords: GOVERNMENT INFORMATION — onus — application of s 105 of the Government Information (Public Access) Act 2009 (NSW) — whether applicant bears a “practical onus” to establish that requested information exists and is held by the agency
ADMINISTRATIVE REVIEW — whether Tribunal has power to review a decision that is not the subject of an application for administrative review made under s 100 of the Government Information (Public Access) Act — whether parties can confer jurisdiction on the Tribunal by consent
PROCEDURAL FAIRNESS — apprehended bias — bias by association — whether Member’s previous association with a party’s legal representative gives rise to a reasonable apprehension of bias
PROCEDURAL FAIRNESS — apprehended bias — bias by conduct — whether Member’s conduct in hearing gives rise to a reasonable apprehension of bias
PROCEDURAL FAIRNESS — hearing rule — whether by permitting party to amend documents the Tribunal failed to give a party a reasonable opportunity to be heard.
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| Consumer and Commercial Division - Commercial
Decision of: G Curtin SC, Senior Member; J McAteer, Senior Member
Catchwords: COSTS – party/party – general rule that costs follow the event – proceedings dismissed – no exception to the general rule established.
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| Consumer and Commercial Division - Commercial
Decision of: The Hon F Marks Principal Member; D Robertson Senior Member
Catchwords: APPEALS – Right of Appeal – Scope of right – From “decision” - application to vary order for contribution under Dividing Fences Act – held Tribunal was not functus officio by reason of later Orders of Appeal Panel – appeal allowed – matter remitted for determination.
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| Consumer and Commercial Division - Retirement Villages
Decision of: S Westgarth, Deputy President; K Ransome, Senior Member
Catchwords: RETIREMENT VILLAGES-time for bringing applications-rules , amending a rule, legal validity of a rule, smoking, Operators obligations to residents, claim for compensation.
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| Consumer and Commercial Division - Strata
Decision of: A Britton, Principal Member; M Gracie, Senior Member
Catchwords: APPEAL — NCAT — questions of law — leave to appeal from decision of Consumer and Commercial Division of NCAT
LAND LAW — strata title — common property — maintenance and repair of common property ─ relationship between ss 106 and 108 of the Strata Schemes Management Act 2015
EVIDENCE — expert evidence — whether Tribunal permitted to consider whether witness was an expert in proceedings in which NCAT Procedural Direction 3, Expert Evidence did not apply.
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| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; D Robertson, Senior Member
Catchwords: LEASES AND TENANCIES – covenants – to repair – obligation to keep in reasonable state of repair – damage to tenant’s goods - not dependent upon findings under s 65(3A) of the Residential Tenancies Act that the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair
CONTRACTS – remedies – damages – difficulty of assessment – lack of clear evidence no bar to assessment.
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| Administrative and Equal Opportunity Division
Decision of: Hennessy N ADCJ, Deputy President; Dr R Dubler SC, Senior Member
Catchwords: SUMMARY DISMISSAL – where Tribunal refused application to summarily dismiss complaint of discrimination – whether leave should be granted to appeal from interlocutory decision.
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| Administrative and Equal Opportunity Division
Decision of: S Westgarth, Deputy President
Catchwords: APPEAL- release of funds held pending further order.
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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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